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Illinois Bill Could Allow State To Collect DNA From Those Presumed Innocent, Marking Nationwide Shift

by Will GuzzardiWashington Post
May 26th, 2011

If Illinois Governor Pat Quinn signs House Bill 3238, recently sent to his desk by the state legislature, it will mark a turning point in the national landscape on DNA collection from criminal suspects.

Illinois would be the 25th state in the union to allow a DNA sample to be collected from some people who are presumed to be innocent. Reaching the halfway point on state acceptance of such laws, coupled with a recent federal policy change in the same direction, is leading to a vastly expanded registry of genetic information.

From the perspective of the bill's many supporters -- it passed the House by a vote of 99 to 9, and the Senate 53 to 1 -- and of the state's prosecutorial apparatus, that's a good thing.

"DNA is the fingerprint of the 21st century and has proven to be an instrumental tool in convicting the guilty and exonerating the innocent," said then-State Representative Susana Mendoza in a press release. Mendoza, who sponsored the bill, is now the Chicago city clerk. "This legislation is a huge step forward for Illinois in helping our state protect society from serial rapists, murderers and sex offenders."

Privacy groups, though, have expressed consternation at the idea of an expanded DNA database that could move the state and nation closer to genetic surveillance.

"A lot of the debate on this subject confuses this notion that DNA is just like a fingerprint," Ed Yohnka, Director of Communications and Public Policy at the ACLU of Illinois told HuffPost Chicago. "A fingerprint is just to identify someone. DNA contains your entire genetic information, sensitive information about health issues, not only for you but also for close family members."

In fact, the truth of the matter stands somewhere in between. DNA profiles are derived based on cheek swabs of genetic information containing the full profile, but an individual's DNA profile is made up of what's called "junk DNA," genetic material that is not believed to have a biological purpose or to indicate any sensitive medical facts. A sequence of junk DNA is converted into a unique numerical pattern and logged in the database.

"Junk DNA," genetic material that is not believed to have a biological purpose or to indicate any sensitive medical facts. A sequence of junk DNA is converted into a unique numerical pattern and logged in the database.

But as a Congressional research report showed in 2009, that DNA may not be as junky as once thought.

"[E]merging scientific research suggests that the type of DNA used in forensic analysis might implicate a greater privacy intrusion than courts had previously assumed," the report says. New scientific discoveries point to the possibility of meaningful information encoded in what was previously considered junk, which might make more serious "the privacy intrusion caused by DNA analysis."

That report was published in response to a new federal policy, which took effect in the beginning of 2009. It allowed the FBI to collect DNA samples from certain arrestees before conviction, as part of an initiative that officials hoped would expand the database by over 1 million profiles a year by 2012. Currently, the database contains over 7 million profiles.

Twenty-four other states have already passed laws that allow DNA to be taken from suspects and not just convicts. In California, that law is particularly expansive: since 2009, anyone arrested for any felony offense is swabbed and added to the data bank.

The proposal in Illinois is considerably more limited. Only suspects of violent crimes like murder, home invasion and sexual assault would be subject to a swabbing, and only after a finding of probable cause would the DNA be taken.

Still, Ed Yohnka of the ACLU had his doubts. When asked if the proposed law was legal, he said, "We think it may not be.

"We think it raises serious questions about the explicit privacy protections that are contained in the Illinois Constitution," he added.

The Illinois Constitution does indeed contain more stringent privacy protections than federal law. The current state constitution was adopted in 1970, and because of its relative modernity, it was careful to carve out personal privacy more explicitly than others.

Maura Possley, deputy press secretary for the Illinois Attorney General, was confident that the law would pass muster. "This idea is not new," Possley said. "We have not seen any successful constitutional challenges" of similar measures around the nation, she said.

What worries Yohnka as much as the bill itself, though, is the precedent it sets. "I guarantee that if the governor signs this bill into law, next year legislators will be back expanding the kinds of crimes for which collection prior to conviction will be put into place," he said.

"We have a line that we've drawn which is at conviction, and what we're saying is we want that line to stay in place."



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