JUVENILE DNA

Can’t take all youths’ DNA, agency told

McDaniel opinion backs up predecessor, judge’s ruling

A Division of Youth Services practice that required taking DNA from juvenile delinquents who committed any felony “appears unwarranted” and is not authorized by state law, Attorney General Dustin McDaniel’s office said in an opinion released Wednesday.

The six-page opinion affirmed the legal reasoning of a judge and several other state officials who have said over the past few months that the Youth Services Division’s practice was unlawful.

The opinion also laid out flaws in the Youth Services Division’s legal interpretation supporting the practice, which was in place for about a decade at the facility that serves as the intake point for nearly all of the state’s juvenile delinquents.

On Wednesday, Amy Webb, a spokesman for the Youth Services Division, said the agency already had taken steps to make sure it was abiding by state law as set out in the attorney general’s opinion.

“It’s what we expected. We’ve already stopped pulling those samples, and we’re in compliance with that opinion,” Webb said.

The opinion came at the request of John Selig, the director of the Arkansas Department of Human Services, which oversees the Youth Services Division.

Selig sought the attorney general’s opinion in late January after Saline County Circuit Judge Bobby McCallister ruled that the agency’s DNA collection practice wasn’t backed up by state law, which only required that genetic material be taken from children who commit specific violent and sexual offenses.

The judge’s order pertained only to the case of one boy who had his genetic material collected at the Arkansas Juvenile Assessment and Treatment Center near Alexander. But in the months since the ruling, the Youth Services Division halted the practice and stopped defending the legal interpretation that the agency’s attorneys used to justify it.

Agency leaders came to that conclusion after representatives of the state’s prosecutors, Arkansas State Crime Laboratory and public defenders all said they disagreed with the agency’s legal interpretation.

Public defenders and juvenile justice advocates also echoed a concern of McCallister’s: that the state wasn’t only unlawfully collecting DNA, but that it could be held liable if the genetic records unnecessarily disclosed a child’s confidential juvenile record, a situation the state’s justice system is designed to avoid.

But even after those concerns were voiced to Youth Services Division leaders, the agency didn’t fully reverse its position until late February when state Crime Lab Director Kermit Channell and the Arkansas Democrat-Gazette pointed out a 10-year-old attorney general’s opinion.

The opinion from 2003, when current Gov. Mike Beebe held the office, specifically explained that state law authorized only the collection of DNA from juvenile delinquents who commit 10 specific felonies - capital murder, first-degree murder, second-degree murder, rape, incest, kidnapping, aggravated robbery, terroristic act, first-degree sexual assault and second-degree sexual assault.

The state law doesn’t apply to juveniles charged as adults. State law requires adult felons and those arrested on certain violent or sexual offenses to submit a DNA sample.

The previous attorney general’s opinion, which was publicly available on the attorney general’s website, laid out legal reasoning that mirrored McCallister’s ruling and the latest attorney general’s opinion, which was prepared by Assistant Attorney General Jack Druff.

The Youth Services Division’s attorneys had argued that a state law that mostly pertained to adult DNA collection of felons included a reference to juveniles adjudicated delinquent, and therefore, should be interpreted to include not only those crimes listed in a separate law but all felonies.

But Druff wrote that the brief mention of juveniles in the adult law didn’t support the Youth Services Division’s argument.

“The legislature’s failure to repeal these provisions in my estimation constitutes no more than an inconsequential oversight,” Druff wrote.

Druff also wrote that amendments made to state law in 2003 were specifically meant to exempt juvenile delinquents from the requirements of the adult DNA collection law, “meaning that the definition of ‘qualifying offense’ under the Act simply does not apply to them.”

“This conclusion is in all respects consistent with my predecessor’s conclusion … The DYS policy consequently appears unwarranted, as the trial judge referenced in your factual recitation concluded,” Druff wrote referring to McCallister.

On Wednesday, Webb said that no agency employees have been disciplined in connection with the unlawful practice. She also said she didn’t know who in the Human Services Department had first interpreted the law to support it, a decision that had been made about a decade ago.

The latest legal interpretation supporting the broader collection was made by agency attorney Carmen Mosley-Sims. Breck Hopkins, the agency’s director of policy and legal services, also signed off on the interpretation, Webb said.

Mosley-Sims has since been promoted. On Feb. 18, she became the assistant director of community-based services, a position on the executive staff of the Youth Services Division. The new position has a salary of about $72,000. She made about $65,000 in her previous job.

“The attorneys made a legal interpretation, and clearly there were differing opinions on that. The AG opinion is what we expected it to be, and our policy and practice are now in compliance with that,” Webb said.

Since McCallister’s ruling, the state Crime Laboratory has determined that 655 children not only had their DNA unlawfully obtained over the past decade, but that the genetic information of those youths was mistakenly put it into an FBI database for felons and people convicted of certain violent and sexual offenses.

The samples slipped through lab safeguards in place to weed out “nonqualifying” DNA samples so they wouldn’t be put into the FBI’s Combined DNA Index System, known as CODIS.

The lab has since added more safeguards and marked the samples and accompanying records for destruction in the coming weeks unless the Youth Services Division can produce evidence that the samples should be lawfully maintained in CODIS.

Youth Services officials believe eight samples were incorrectly included among the Crime Lab’s list of nonqualifying samples, Webb said.

The determination regarding the eight samples was made after reviewing the agency’s internal records, which showed those youths committed qualifying offenses, she said.

The Crime Lab’s determination was based on information from the Arkansas Crime Information Center’s law enforcement database, which contains court and arrest information.

Webb said the agency’s objections would be sent back to the Crime Lab for further review.

In addition to its list of 655 children, the Crime Lab also identified samples for 868 youths who had their DNA unlawfully collected at some point but later committed an offense that qualified their information for entry into CODIS. The lab plans to retain those samples.

Arkansas, Pages 7 on 04/03/2014

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