BENTON - The staff at Arkansas’ largest juvenile lockup didn’t abide by state law when it took DNA from a boy last year, according to a copy of a judge’s order issued last week.
The ruling in Saline County has called into question the legitimacy of DNA samples taken from other juveniles for about a decade under the same Division of Youth Services’ practice that resulted in collection of the boy’s genetic material.
Under the practice, the Youth Services Division required its staff 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 juveniles who commit specific crimes.
The practice has been in place at least since 2003 at the 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 DNA collection for the Youth Services Division.
The practice came to light Wednesday during a hearing in Benton in which Circuit Judge Bobby McCallister warned a G4S Youth Services staff member that he should tell his bosses and the Youth Services Division staff to discontinue the practice because it’s not mandated by law.
McCallister said the practice is troubling because the agency is creating a record of a juvenile’s delinquent past without the proper legal authority.
If the samples somehow led to the disclosure of a juvenile’s confidential delinquency records, the judge said, the contractor or the Youth Services Division could be held responsible for the negative effects of unnecessarily airing a youth’s troubled past, a situation that the state’s juvenile justice system is designed to avoid.
But a spokesman for the Arkansas Department of Human Services, which oversees the Youth Services Division, said the agency’s attorneys disagree with the judge’s interpretation of the law.
Department spokesman Amy Webb said the attorneys believe that the agency is required to collect the samples from a wider range of youthful offenders because of a different law outside the juvenile code.
On Wednesday and Thursday, Webb said the Youth Services Division intended to continue to collect juvenile offenders’ DNA, which hadn’t been formally questioned by a judge before.
On Friday, Webb said the agency had decided to temporarily halt the blanket practice and would take samples only from juveniles who commit the specific crimes listed in the juvenile code until the Youth Services Division can get more “clarification” on the law’s requirements.
Webb said the agency hasn’t determined how many juveniles had their DNA taken at the facility under circumstances similar to that of the boy who challenged the practice.
The Youth Services Division denied an Arkansas Democrat-Gazette request under the state Freedom of Information Act for information that could be used to calculate the number of children who had cases similar to the boy’s.
Webb said the information couldn’t be determined without creating new documents, which the agency isn’t required to do under the state open-records law. Also, some older records may not exist any more because the lockup was operated by a different contractor until 2007.
McCallister’s order applies only to the case of the boy whose DNA sample was drawn last year while he was in state custody for criminal mischief and absconding from supervision, both felony offenses.
The judge’s order requires the Youth Services Division and the state Crime Laboratory to locate and destroy the boy’s sample within 60 days.
In the order, McCallister sided with the boy’s public defenders, Dorcy Kyle Corbin and Clay Ford, who had learned of the practice in December and filed a motion seeking the sample’s destruction.
The defense attorneys argued that G4S Youth Services had no right to take genetic material from juveniles who haven’t been adjudicated delinquent of one of 10 felonies listed in a DNA-collection law in the state’s juvenile code. Those offenses 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 boy’s DNA sample was taken with the intent of having the Crime Lab enter it into the FBI’s Combined DNA Index System, known as CODIS, which houses the DNA information of adult felons and violent juveniles for use by law enforcement nationwide.
But the lab’s DNA analysts haven’t been entering the genetic information into the system because they have interpreted the law in the same way McCallister did in his order.
Still, Crime Lab staff members say they have been retaining the samples - and additional records submitted along with the genetic material - in secure storage because the lab doesn’t destroy evidence without a court order.
In an interview, Webb said state law prevents her from commenting on the judge’s order as it pertains to the boy’s case or releasing any other information concerning specific juveniles affected by the practice.
But Webb said the Division of Youth Services’ attorneys believe that the agency’s DNA-collection practice is on firm legal footing because of sections 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 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.”
Webb said the agency believes that the law supports the broader practice and doesn’t conflict with the juvenile code, specifically Arkansas Code Annotated 9-27-357, which lists the crimes that require the taking of DNA.
“The [juvenile] law doesn’t say ‘only,’ and it does not provide any exception to 12-12-1100 and on,” Webb said. “We believe we are abiding by both laws.”
The boy’s attorneys said in interviews that the agency’s argument is flawed.
They argue that the Youth Services Division’s interpretation of the law “repeals an entire section of the juvenile code.” And the practice 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.
“If the Legislature wants to repeal any section of the juvenile code, they can do that,but it’s not for the courts and especially an agency to do that,” Corbin said, noting that an effort to have the DNA Data Base Act apply to all juveniles failed when the law was being debated in the General Assembly.
“We are sitting here trying to tell these children to follow the law, and then the adults aren’t doing it. What kind of message does that send a child?” she added.
No one from the Youth Services Division attended the boy’s hearing last week, but the agency received a copy of the order, which wasn’t opposed by a county prosecutor in the case.
The newspaper obtained the order from the attorneys of the boy involved in the case after the boy and his mother gave permission for its release. The Arkansas Democrat-Gazette is withholding the boy’s name and other identifying information because it does not publish the identities of children involved in juvenile delinquency matters.
Under Arkansas law, juvenile delinquents have the right to an open public hearing. The judge did not close the hearing Wednesday, and a reporter attended.
During the hearing, McCallister questioned not only the Youth Services Division’s practice but also how staff members at the youthful-offender lockup handle the DNA samples it sends to the Crime Lab.
Lamont Daniels, a staff member at G4S Youth Services, testified that the facility’s employees take the DNA samples by scraping the inside of a juvenile’s cheek several times with a plastic collection device that resembles a tongue depressor with filter paper attached to it.
The samples are then sealed in an envelope and placed in the lockup’s mailroom where they are supposed to be sent to the state Crime Laboratory.
But during the hearing, Mary Robnett, the section chief of the Crime Lab’s CODIS department, testified that lab staff members couldn’t find the sample for the boy and didn’t have any record of receiving one under the boy’s name.
A day after the hearing, though, the sample turned up at the lab in a batch of recent submissions, Robnett said in an interview, noting that she will now destroy the sample per the judge’s order.
Robnett said it’s rare for a sample to be lost at the lab. More often, samples are misplaced by the agencies that collect them.
But Webb, the spokesman for the Human Services Department, said Division of Youth Services records show that the boy’s sample was included in a box of samples sent via FedEx to the lab on Nov. 13. The agency got confirmation that it was received at the lab on Nov. 14 at 2 p.m.
“We have no reason to believe that the sample was not in the box that was sent to the Crime Lab,” she said, noting that the boy’s case has prompted G4S Youth Services to review its DNA-collection procedures.
The contractor keeps the samples in a locked box in a locked cabinet and logs who handles the samples. But in light of the judge’s concerns,the contractor is working to add more safeguards, including providing the Crime Lab with an inventory of the samples it submits to the lab, Webb said.
Crime Lab Director Kermit Channell said that in response to the judge’s order, he will be making changes in the lab’s policies.
The Crime Lab hasn’t had a specific policy addressing what to do with DNA it receives that isn’t supposed to be obtained from juveniles, but Channell said he believes that analysts “shouldn’t be” retaining the samples.
Channell said his staff is starting work on a new policy that will require lab analysts to document “any juvenile samples that do not qualify under our interpretation of the statute.”
Under the new policy, the lab will not retain those DNA samples or others that don’t qualify for entry into CODIS. The lab will also notify the agencies that collected the DNA when a sample doesn’t fit the legal criteria for entry, he said.
Webb said the Youth Services Division wasn’t aware until last week that the Crime Lab wasn’t entering the samples into the DNA database.
Webb said the agency decided Friday to seek a meeting with the Crime Lab and the Arkansas Public Defender Commission to “address the larger issue” raised in the boy’s case. She said the date of the meeting hadn’t yet been determined.
Corbin said that if the Youth Services Division’s policy remains in place, she’ll fight it.
“I’ll just continue to go seek orders to destroy the DNA or hopefully the Crime Lab will take care of it by just doing it on their own,” she said, adding: “It’s just a waste of space and time and effort for everybody.”
Front Section, Pages 1 on 01/26/2014