The Legislative Black Caucus and civil rights activists criticized yesterday Gov. Martin O’Malley‘s plan for implementing a new program for collecting DNA samples from crime suspects, accusing the administration of turning its back on hard-fought compromises for safeguards and oversight.
O’Malley made the DNA bill one of his priorities this year and worked hard to win passage of the legislation in the Maryland General Assembly – but only after significant changes during lengthy negotiations, particularly with the Black Caucus. The law calls for DNA samples to be taken from those charged with violent crimes and burglary; previously, samples were taken only after a conviction.
The Maryland State Police issued the proposed regulations to implement the law last month. But concerns from lawmakers have prompted the Joint Committee on Administrative, Executive and Legislative Review to put a hold on the regulations. The committee doesn’t have the authority to overturn the regulations, but it often seeks tweaks during the promulgation of rules.
Leading black lawmakers, the American Civil Liberties Union, the National Association for the Advancement of Colored People and the state public defender’s office say the proposed regulations don’t ensure that DNA samples are taken only when someone has been charged with a crime, rather than at the time of arrest as would have been the case under language originally proposed by O’Malley. They also say the regulations don’t adequately address access to DNA samples or procedures for expungement, which would be required when someone isn’t convicted.
“I am really challenging the O’Malley administration to come forth and put their cards on the table,” said Sen. Verna L. Jones, a Baltimore Democrat and caucus member. “If they were not going to be fair and aboveboard with us, they should not have been in negotiations with us just to make sure that legislation got passed.”
O’Malley said his administration would entertain any suggestions for changing the regulations. The Democratic governor had championed the expansion of the DNA database as a crime-fighting tool but ran into fierce objections in the legislature, where some said it would be unconstitutional and would exacerbate racial bias in the criminal justice system because the database would primarily comprise information about African-Americans and Latinos.
“We welcome the input of the Black Caucus. We welcome the input of the ACLU,” O’Malley said. “And we also welcome the ability that local enforcement will have to solve violent crimes, to solve murders and rapes, and to lock up people for very long periods of time once we have a case on them.”
It is unclear whether substantial changes will be made to the regulations. Kristen Mahoney, head of the Governor’s Office of Crime Control and Prevention, disputed many of the issues raised by activists and emphasized that the administration would have no reason to circumvent the compromise provisions it agreed to during the General Assembly session.
“At some point, the ACLU and public defender needs to work with what the General Assembly passed rather than continuing to object to this. They just don’t like the law. That’s what this is,” Mahoney said. “And they are looking in every corner to take this tool away from law enforcement.”
The dispute could escalate. Lawmakers and activists called for hearings on the proposed regulations and threatened to sue if the administration doesn’t make changes. They argue that the proposed regulations fail to follow the spirit and letter of the newly enacted law, and in particular the negotiated provisions that were meant to limit potential abuses.
The critics contend the regulations do not explicitly address procedures for expungement from federal databases or how to prohibit familial searches that could give rise to racial profiling with DNA collected by the state when it is uploaded to the federal level. They also say the regulations invite excessive force by police officers by not defining the “reasonable force” that can be used in collecting samples.
But Mahoney said those concerns are unfounded. She said that when records are expunged from the state database, they are automatically deleted from the federal database, and she noted that Maryland regulations can’t be applied to the federal government. She also said that “reasonable force” is defined in case law and insisted that the regulations limit the taking of DNA samples to suspects who have been charged.
A number of problems with the state’s crime labs have surfaced in recent years. Last month, the Baltimore Police Department’s crime lab director was dismissed after revelations that analysts had contaminated evidence with their own DNA. A few years earlier, officials say, police practices and disorganization at the lab led to contamination and unreliable gunshot residue test results.
The legislature approved a bill in 2007 to bolster oversight of crime labs, and O’Malley is expected to appoint members to a forensic advisory board by the end of the year. While the board is expected to have support from existing state staff, lawmakers yesterday said the governor needs to step up oversight efforts not only in response to past problems but also as the database grows.
Sen. Delores G. Kelley, a Baltimore County Democrat, said, “We need to have staff and experts go out and certify to the public that we are not a kangaroo court with regard to the way we run forensic labs.”