3 youths’ DNA in FBI database

DNA samples of at least three youths were put into an FBI database for felons and violent offenders, even though those children shouldn’t have had genetic samples taken from them in the first place, the director of the state Crime Laboratory confirmed last week.

The discovery of the three DNA samples, which were chosen at random from a larger list of potentially unlawfully obtained samples, prompted the Crime Lab to begin reviewing all of the estimated 3,600 youthful-offender samples that the lab has entered into the database over the past decade.

Lab Director Kermit Channell said he’s almost certain that the lab’s review will uncover more samples entered into the system without the proper legal authority.

“With my experience with DNA statistics, when I pull three at random and those three at random actually are in and don’t have qualifying offenses, that’s not a good statistical start. The probability is higher that I’m going to find more,” Channell said.

Channell disclosed his findings Friday, the same day that the state Youth Services Division reversed its position on the legality of a practice that led to the collection of the unlawfully obtained samples.

Youth Services Division officials have said that for the past 10 years they’ve believed that state law required the collection of DNA from youths who committed any felony.

In January, Saline County Circuit Judge Bobby McCallister ruled that the practice had led to the unlawful collection of one boy’s DNA. And the judge warned that the practice should be stopped because state law required only the collection of DNA from youths who committed any of 10 violent or sexual felony offenses.

The Youth Services Division initially defended the practice. But Friday, a spokesman said agency leaders had decided, after reviewing a 10-year-old attorney general’s opinion pointed out by Channell and the Arkansas Democrat-Gazette, that the broader practice isn’t supported by state law.

The Youth Services Division’s decision comes after a month in which representatives of the state’s prosecutors, public defenders and the Crime Lab have all said they had interpreted the law the same way the Saline County judge did.

And Crime Lab officials said that over the past decade, analysts there have taken steps to intercept youths’ DNA samples - the majority of which were sent in by a Youth Services Division contractor - that the analysts believed were taken without legal authority.

In recent weeks, the lab disclosed that it had weeded out at least 91 such samples before they were entered into the FBI’s Combined DNA Index System, called CODIS.

But the latest findings confirm that samples were still able to slip through the lab’s safeguards.

The three samples in question pertained to juvenile delinquents who didn’t commit any of the 10 offenses that require DNA collection, but the genetic material was taken from them anyway under the Youth Services Division practice.

The DNA collection practice had been in place since at least 2003 at the Arkansas Juvenile Assessment and Treatment Center near Alexander, which is the state’s largest youth lockup and the intake point for nearly all of the state’s youthful offenders. The facility is operated by G4S Youth Services under a contract with the Youth Services Division, which is part of the Arkansas Department of Human Services.

On Friday, Channell said the three random samples involved children who committed residential burglary, theft and criminal mischief. The offenses that require DNA collection are 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 three names were brought to Channell’s attention Thursday by Dorcy Kyle Corbin, a public defender looking into the Youth Services Division’s DNA collection practices.

Corbin, who handled the case in which McCallister ruled on the DNA collection policy, said Friday that the three names were picked at random from a list of 21 children whom she had identified as potentially having their DNA put into CODIS without legal authority.

Corbin said she identified the 21 after comparing a list from the Youth Services Division and a list from the Crime Lab. Corbin said the Youth Services Division list contained the names of 32 children that the agency identified as having their DNA taken even though they hadn’t committed any of the 10 offenses required under state law.

Only 11 of those names appeared on a list that the Crime Lab compiled of children whose DNA samples were weeded out from being entered into CODIS.

Corbin said she believes that a few hundred children likely had their DNA entered into CODIS without any legal authority because the Youth Services Division’s list pertains to only one of 10 years in which the agency took DNA samples from youthful offenders under the broad practice.

Corbin said she believes that the practice sent the wrong message to youths who committed nonviolent offenses by subjecting them to a law meant for violent and sexual offenders.

“I think when you take these children and swab them, what you are telling them is that there is a presumption that someday you will do something bad. It’s not even a presumption of innocence, here we’re presuming guilt,” she said.

“I don’t think that helps anything with the psyche of a developing child,” she added.

On Friday, Channell said he expects it to take two weeks for the lab to determine how many DNA samples were entered into the CODIS without legal authority.

Once those samples are found, Channell said the lab will send out a letter notifying the agencies that handled the DNA collections that the lab intends to destroy the samples and any associated records. Channell said if the lab doesn’t hear back from an agency within 30 days, it will follow through with destroying the samples.

He said he will also be reviewing whether the lab needs to implement more safeguards to make sure his staff is entering only the DNA samples required by law. It’s important, he said, because when the database matches a DNA sample in the system with one connected to a crime, that match can be used as probable cause for an arrest, he said.

If an unlawfully collected sample was used as the basis for charging someone with a crime, a judge would have to decide whether the arrest was legitimate.

“We don’t want to get to that point. We want to correct on the front-end. … We want to protect the rights of juveniles under the appropriate statute so that juvenile data is not where it doesn’t belong,” he said.

“If you let it fester, it’s just going to be an even bigger problem,” he added.

The potential for DNA samples to be mistakenly entered into CODIS was one of the concerns that arose after McCallister’s ruling. The judge warned during the Jan. 22 hearing that the Youth Services Division and its contractor could be held liable if the DNA samples unnecessarily disclosed a youth’s troubled past, a situation that the state’s juvenile justice system is designed to avoid.

After the judge’s ruling, the Youth Services Division halted the practice temporarily and requested an opinion on its legality from the office of Arkansas Attorney General Dustin McDaniel.

But a document obtained Friday by the Arkansas Democrat-Gazette shows that the attorney general’s office issued an opinion more than 10 years ago that addressed the same question.

In 2003, then-Attorney General Mike Beebe, who is now governor, issued an opinion that said state law required the taking of DNA samples only from juveniles who committed any of the 10 specific felonies listed in the juvenile code.

The opinion mirrors the arguments advanced by public defenders who opposed the Youth Services Division practice.

The opinion was included in materials that the Crime Lab recently mailed to the Youth Services Division. It is also publicly available on the attorney general’s website.

In response to questions about the opinion, Human Services spokesman Kate Luck said late Friday that the agency has reversed its position on the law and now agrees it should halt the broader DNA collection policy.

“After reviewing the opinion 2003-227 from the Arkansas Attorney General that was recently brought to our attention and after consulting with our legal team, we believe the law is clear in that DNA should only be taken from children who meet the ten offenses,” Luck said in an email.

In an interview, Luck said the Youth Services Division had already developed new policies to govern the collection of DNA over the past month. Those policies will now become permanent unless the agency receives a different interpretation of the law from McDaniel’s office, she said.

McDaniel spokesman Aaron Sadler said the attorney general’s office will still respond to the request for an opinion. Sadler said he couldn’t comment on what the response might say.

In the meantime, Luck said the agency is looking at its records to make sure that it has collected DNA from children in its care who committed the 10 offenses in the law. She said the agency will also be working with the Crime Lab to help determine what steps need to be taken to identity and destroy the unlawfully obtained samples.

Luck said the agency’s leaders hadn’t yet researched whether the agency could be legally liable for having collected the DNA samples that the lab is now searching to take out of CODIS.

“Our legal team was unaware of this previous opinion,” Luck said. “We were responsible for sending the samples, clearly, but we thought we were following the law.”