JUVENILE DNA

Opinion awaited on DNA collecting

Youth Services practice on hold

State juvenile-justice officials said Wednesday that they are awaiting an opinion from Arkansas Attorney General Dustin McDaniel’s office to decide whether to continue a DNA collection practice that a judge has already ruled unlawful in the case of one child.

Under the practice, the state Youth Services Division required employees at the Arkansas Juvenile Assessment and Treatment Center near Alexander to take DNA samples from youths who committed any felony, even though a state law requires that genetic material be taken only from youths who commit specific crimes.

The practice went on for about a decade at the state’s largest youth lockup until two weeks ago when reaction to the judge’s order revealed that not only did the judge believe the practice was unlawful, but the state Crime Laboratory’s staff members also had thought so for years.

The DNA samples were collected with the intention of having the Crime Lab enter them into the FBI’s Combined DNA Index System, or CODIS, which compiles the DNA information of adult felons and violent youthful offenders for use by law enforcement nationwide.

But the lab’s DNA analysts have said they haven’t been entering the genetic information into the system because they have interpreted the law the same way the judge did.

The request for an attorney general’s opinion came to light Wednesday during a meeting in which Crime Lab officials said that they have identified 91 DNA samples that, like the child’s, they believe were obtained from youths without proper legal authority since the practice began in 2003.

And in response to questions from a public defender, the officials with the Youth Services Division acknowledged that even under the blanket policy, some youths who are supposed to have their DNA collected under the more specific state law are slipping through the cracks.

The comments during the meeting came two weeks after a ruling by Saline County Circuit Judge Bobby McCallister called into question the legitimacy of the blanket DNA collection practice.

During a hearing in Benton, McCallister ruled that DNA collected from a boy last year was obtained unlawfully because the boy was in state custody for committing two felony offenses - criminal mischief and absconding from supervision - which aren’t among the 10 listed in the juvenile-justice code that require DNA collection.

The boy’s DNA was collected at the Alexander facility, which is operated by contractor G4S Youth Services. The facility serves as the intake point for nearly all of the state’s juvenile delinquents and handles most DNA collection for Youth Services Division.

In ruling that the boy’s sample should be located and destroyed, McCallister also warned that the Youth Services Division should cease the blanket policy and stick to only those offenses listed in the state’s juvenile-justice code.

In the days after the ruling, the Youth Services Division halted the practice, but the agency’s attorneys have said they disagree with the judge’s interpretation of the law. They argue that a state law outside the juvenile-justice code required the agency to collect DNA more broadly.

That disagreement led the Human Services Department to request the attorney general’s opinion in a letter dated Jan. 29, a copy of which was released to the Arkansas Democrat-Gazette on Wednesday.

In the letter, Human Services Director John Selig asks McDaniel’s office for clarification on the intersection of two state laws.

One law, Arkansas Code Annotated 9-27-357, is in the juvenile section of the code. It requires that DNA samples be taken from youths adjudicated delinquent of 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 second law, the State Convicted Offender DNA Data Base Act, requires that adult felons and those convicted of certain sexual or violent misdemeanors have their DNA entered into CODIS.

The statute, which begins at Arkansas Code Annotated 12-12-1100, includes the line that the Crime Lab should maintain DNA records of “convicted offenders and juveniles adjudicated delinquent who are required to provide a DNA sample under this subchapter.” A section of the law defines a qualifying offense as “any felony offense.”

In the letter requesting the opinion, Selig writes that reading the provisions together, the “Division of Youth Services has interpreted the Code as requiring DNA collection in all cases identified in the statute - the ten offenses listed in the Juvenile Code, as well as the broader classes of felonies and misdemeanors designated … in the DNA Database Act.”

Selig writes that the agency is asking for broader clarification of two questions - whether the juvenile-justice law provides “an exhaustive list of all offenses” that require DNA collection or whether the DNA Data Base Act, which has the broader language, applies to youths.

Selig notes that the agency is not challenging McCallister’s order in the Saline County case because the child’s DNA sample was “destroyed as ordered.”

On Wednesday, McDaniel’s spokesman Aaron Sadler said that the office received Selig’s request on Monday, but he didn’t know how long it might take for the opinion to be prepared. Attorney general opinions aren’t binding, but state agencies often adhere to them.

In an interview Wednesday, Human Services Deputy Director Keesa Smith said her agency, which includes the Youth Services Division, will abide by the attorney general’s interpretation of the law, even if it differs from the agency’s interpretation.

“We’re trying to do what the statute requires us to do. We have no benefit of taking samples that we shouldn’t be taking,” Smith said, noting that “until we receive that opinion, we are holding off on any testing of juveniles outside the 10 felonies.”

If the opinion sides with the Human Services Department, Smith acknowledged that the agency’s temporary halting of the practice may remain in place for a longer period because the issue will likely be “litigated in the courts.”

Dorcy Kyle Corbin, the public defender who represented the boy in the case before McCallister, has said she’ll continue to fight the practice if it remains in place.

Corbin said she believes that the Youth Services Division’s interpretation goes against legal precedents that say laws shouldn’t be read where one makes the other entirely moot, and laws that are more specific should govern those that are more general.

Officials with the state Crime Lab, the state Prosecutor Coordinator’s office, the Arkansas Public Defender Commission and the state’s juvenile-court judges also said Wednesday that they disagree with the Human Services Department’s interpretation of the law.

Mary Robnett, chief of the lab’s CODIS section, said the lab is already working on ways to authorize the destruction of the 91 samples from youths that it received, but that process is on hold until the attorney general clarifies the law.

Connie Hickman-Tanner, the state director of juvenile-court programs, told representatives from those agencies Wednesday during the meeting at the Justice Building in downtown Little Rock that the state’s judges “are in unison that it’s only these ten offenses.”

Hickman-Tanner said that the main concern was that the samples somehow could lead to the disclosure of a youth’s confidential delinquency records, a situation that the state’s juvenile-justice system is designed to avoid.

“The issue is that you’ve got this DNA out there that you don’t want to come back and haunt a kid,” Hickman-Tanner said.

Front Section, Pages 1 on 02/06/2014

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