Collection of youths’ DNA called spotty

Sunday, February 9, 2014

An analysis of Arkansas Department of Human Services public data indicates that the agency hasn’t followed its own interpretation of state DNA-collection law regarding youthful offenders, the state’s juvenile-justice ombudsman said last week.

Scott Tanner, the coordinator of the Arkansas Public Defender Commission’s juvenile ombudsman division, wrote in a letter that he concluded from his own data analysis that the agency’s Youth Services Division “lacks a comprehensive system for identifying and collecting DNA samples for youth committed to its care.”

Tanner’s letter came a day after Human Services officials acknowledged that they were working to identify and fix potential procedural gaps in their DNA collection process.

On Friday, Human Services spokesman Kate Luck said her agency hadn’t yet conducted a review similar to Tanner’s analysis, and she couldn’t say whether his findings were reflective of a larger problem.

“We have not had an opportunity to review and verify the data that we were given this afternoon,” Luck said, referring to Tanner’s analysis. “We have already made changes to improve our DNA collection process, and we look forward to continuing to work with other agencies to make the DNA collection process as efficient as possible.”

The Human Services Department began reviewing its DNA collection process after questions arose about the agency’s practice of collecting the genetic material from youths who commit any felonies.

The agency’s DNA collection practice has been in place since 2003 at the Arkansas Juvenile Assessment and Treatment Center near Alexander. The facility, which is operated by contractor G4S Youth Services, serves as the state’s largest youthful-offender lockup and the intake point for nearly all juvenile delinquents committed to the Youth Services Division’s care.

Last month, a Saline County circuit judge said the facility should stop the collection practice because it was too broad. State law requires only the collection of genetic material from youths who commit 10 specific offenses, not all felonies, he ruled.

Circuit Judge Bobby McCallister warned that the agency could be creating a record of a juvenile’s delinquent past without the proper legal authority. The agency could be liable for the negative effects if one of the samples unnecessarily disclosed a youth’s troubled past, a situation that the state’s juvenile justice system is designed to avoid, the judge said.

McCallister’s ruling pertained only to the case of one child whose DNA was collected under the practice. But in the days after the ruling, representatives of the state’s prosecutors, public defenders and the state Crime Laboratory said that for years, they had interpreted the law as the judge did.

And Crime Lab analysts said they had been weeding out some samples sent in by the Youth Services Division because the lab staff believed that the samples didn’t meet the statutory requirements for entry into the FBI’s Combined DNA Index System, or CODIS. The system compiles the DNA information of adult felons and violent youthful offenders for use by law enforcement officers nationwide.

The lab and McCallister both cited Arkansas Code Annotated 9-27-357 in making their determinations. The law 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.

Since the judge’s ruling, the Human Services Department halted its broader collection practice temporarily and requested an opinion on the law from the office of Arkansas Attorney General Dustin McDaniel. As of Friday, a spokesman for the attorney general’s office said the opinion was still being prepared.

Human Services officials have said they’ll abide by the attorney general’s opinion even if it differs from their interpretation of the law. But they have defended the practice, saying they believe that state law requires the collection of DNA from the broader group of juvenile offenders.

The agency’s attorney based the decision on a reading of the State Convicted Offender DNA Data Base Act, which 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 provision that the Crime Lab maintain DNA records of “convicted offenders and juveniles adjudicated delinquent who are required to provide a DNA sample under this subchapter.” The law also includes a sentence that defines a qualifying offense as “any felony.”

Human Services Department officials have said they believe that reading the laws together requires DNA collection from a broader group of youth offenders because the more specific law doesn’t include language that limits collection to just the 10 offenses.

“We’re only interested in following the law,” Luck said Friday. “We don’t have any special interest in taking DNA samples that we don’t need. We just want to be covered by the law.”

But Tanner’s comparison of Youth Services Division data and preliminary information from the Crime Lab suggests that the agency hasn’t been adhering to the practice it is defending.

“Neither DYS nor its contracted agent appear to be submitting samples consistent with the number of felons committed to DYS,” Tanner wrote in the letter.

The Arkansas Democrat-Gazette obtained a copy of Tanner’s letter last week after requesting documents under the state Freedom of Information Act.

In an interview Friday,Tanner said he was asked to review the Youth Services Division figures after a Crime Lab analyst said that her records show that as of last week, the lab had 91 DNA samples that were obtained from youthful offenders without statutory authority.

Public defender Dorcy Kyle Corbin, who represented the child who appeared before McCallister, said the numbers didn’t make sense if the Youth Services Division was adhering to its practice over the past decade.

“If you’re testing every kid who has a felony … then that number should be higher,” Corbin told officials at the meeting that included Youth Services Division Director Tracy Steele and Human Services Deputy Director Keesa Smith.

The day after the meeting, Tanner said he culled data from the Youth Services Division’s annual reports and looked into some more detailed information that he has access to in his role as ombudsman.

In his letter, Tanner cited figures that show that since the DNA collection practice went into effect in 2003, the agency has received more than 3,000 youthful-offender commitments for felonies. The numbers vary per year, but on average a little more than 320 youthful-offender commitments occurred each year, according to Tanner’s analysis.

Tanner cautioned that the number of felony commitments includes some youths who could be counted multiple times. But even accounting for that and other potential limitations of the data, Tanner said, the numbers suggest that there hasn’t been a uniform DNA collection process in place in the state’s juvenile justice system.

Looking at only fiscal 2013 - which ended last June - Tanner said he has identified at least 33 samples that were potentially obtained unlawfully and should have been weeded out by the Crime Lab.That would indicate that just one year could account for at least a third of the 91 samples.

Tanner said he’s still uncertain whether the 91 samples were the only ones collected under the decade-long practice. And Human Services officials said they hadn’t been given any different figures as of Friday.

Mary Robnett, the chief of the Crime Lab’s CODIS section who reported the numbers, has said they were the only ones currently at the lab that she had identified as having been potentially obtained unlawfully. A phone message left during business hours Friday for Robnett wasn’t returned.

In an interview Friday, Luck said top officials in the Youth Services Division were looking into the potential for better tracking of DNA samples. The agency has already required that its contractor submit an inventory of samples contained in the boxes it mails to the Crime Lab.

Currently, the agency doesn’t keep a comprehensive list of the youths that can easily show which ones have been tested. Instead, staff members are having to go back through the individual files of each youth to determine whether each has been tested, agency officials have said.

Last week, Steele said the agency has records going back to 2007, when G4S Youth Services took over the Alexander facility. But the agency doesn’t know whether it still has records from the years before that, he said.

Steele said his review already has determined that there could be a need for adding a DNA collection process to other facilities because in some rare cases, juvenile offenders aren’t making it to the Alexander facility for intake.

“There could be breakdowns elsewhere,” Steele said last week, noting that some of those gaps could be outside his agency’s control.

“We’re certain we can fix this issue, and test every juvenile that needs to be tested,” Steele said after the Wednesday meeting.

Steele reviewed Tanner’s letter Friday after the Democrat-Gazette asked for comment on the findings. Steele directed G4S Youth Services to look into the matter, Luck said, but Steele was unavailable for an interview Friday.

When asked whether the Youth Services Division is confident that it tested every youth who should have fallen under the agency’s interpretation of the law, Luck said she couldn’t say until officials verify Tanner’s figures.

“We’re not going to be so naive as to think that there are not areas for improvement. There may be some spots where kids haven’t gotten tested, but I wouldn’t think that it’s an overwhelming problem,” she said, adding that “without having looked at the numbers myself, it’s hard to gauge.”

Tanner, who believes the agency’s broader policy is unlawful, said he thinks that Steele and Smith, who both have been in their current positions less than a year, are making a “good faith effort” to look into the matter.

But looking into the discrepancy has revealed the need for the Youth Services Division to do a better job of tracking DNA samples, he said.

His main concern is that the Youth Services Division follows the law, he said. But there’s another concern if DNA samples are being stored on children who didn’t commit the crimes that require the collection of the genetic material, he said.

The longer the state hangs onto the samples, the larger the potential for them to be used for purposes other than solving a crime, particularly if a future law allows for their use in a way that could reveal a child’s confidential delinquency past, he said.

“We’re not sure what may happen in the future, and so we need to be vigilant today and only collect that which we know is provided for under the law,” he said.

Front Section, Pages 1 on 02/09/2014