A bill requiring DNA swab samples of people who are arrested for felony crimes and expanding the state’s existing DNA collections was sent by the House to Gov. Sam Brownback on Thursday.
The move, which essentially clarifies existing state law that allows law enforcement to collect DNA samples from people who are jailed before they are released, comes as the U.S. Supreme Court considers whether such collections violate people’s privacy.
On one side are proponents, such as Wichita Democratic Rep. Jim Ward and Shawnee Republican Rep. John Rubin, who say such cheek swab collections are simply modern-day finger printing that can help police catch criminals who have left behind DNA evidence.
On the other are those, such as Grandview Plaza Republican Rep. Allan Rothlisberg, who say the state has already gone too far by collecting DNA samples for government databases before someone is convicted.
“DNA should not be taken unless it’s either a conviction or by a court order,” he said. “The mere fact of being booked? The answer is no. You’re not convicted of anything. It’s an invasion of privacy that’s not necessary.”
Rothlisberg said he understands the law can help catch people who have left evidence at past crimes, but he said that doesn’t outweigh privacy issues.
“But when the government has databases on people, I get very uncomfortable about that,” he said.
Currently, the state can collect blood samples for DNA testing. The new bill, if approved by Brownback, would allow cheek swabs when people are booked and fingerprinted after arrest. It also would require samples from people incarcerated on May 2, 1991, for a crime committed before that date, before they are released.
The House voted 74-49 to approve the bill. The Senate approved the bill in a 40-0 vote in April.
Lawmakers considered extending the DNA swabs for people arrested for almost any crime, including misdemeanors. But that was stripped from the bill during negotiations between the House and Senate, Rubin said.
“It’s just modern technology,” he said. “We’ve always collected fingerprints from accused folks at the time of arrest, and that has long since been resolved by the Supreme Court. This is just an updated and modernized and more specific way than fingerprinting at the time of arrest. No invasive procedure on the body is being used. So I don’t see any privacy issues.”
Kansas is among 29 states that allow DNA collections.
Kansas has struggled with a backlog of DNA evidence, and last year it received two federal grants totaling more than $500,000 to help reduce the backlog.
U.S. Supreme Court justices have discussed and are expected to rule on the issue, based on a case from Maryland in which a man arrested for assault in 2009 was convicted of a 2003 rape after a DNA swab matched up with evidence from the rape.
In those arguments, Michael Dreeben, a federal government lawyer, said arrestees are unique because they are no longer free citizens who retain the full impact of the Fourth Amendment, which guards against unreasonable searches.
“The arrest itself substantially reduces the individual’s expectation of privacy,” he said.
Chief Justice John Roberts said that may be true, but it doesn’t give police the right to go into someone’s house without a warrant.
Since Maryland began collecting DNA samples from arrestees charged with violent crimes and burglary, authorities have had 225 DNA matches, 75 prosecutions and 42 convictions, said Maryland Chief Deputy Attorney General Katherine Winfree.
“Well, that’s really good. I’ll bet you, if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too,” Justice Antonin Scalia said. “That proves absolutely nothing.”
Scalia suggested the case could be one of the most important criminal procedure cases considered by the court in decades.
The bill sent to the governor also increases sentencing for people who have firearms while they are committing a drug felony and includes changes to raffling at fundraising events. Some opposed the raffle part, saying it violates the state’s constitution on gambling issues.