Georgia DNA database legislation called unconstitutional

Georgia DNA database legislation called unconstitutional

March 30th, 2011 by Joy Lukachick Smith in News

A bill that would have required a DNA sample to be taken from anyone arrested on a felony charge in Georgia was revamped after several lawmakers questioned its constitutionality.

Senate Bill 80, which was changed in a House committee last week to require only that a swab of saliva be taken from all convicted felons, is in the House Judiciary Non-Civil Committee.

Sen. Joshua McKoon, R-Columbus, has argued that Georgia has isolated itself from its surrounding Southeastern states, which require DNA sampling at the point of a felony arrest and have matched some of those arrested to previously unsolved crimes.

"We need to have a real serious debate about what the priorities of government are," McKoon said. "I don't think it gets more basic than keeping people safe."

Now, 24 states require DNA testing upon a felony arrest, including Tennessee, he said.

Since Tennessee's legislation was approved in 2007, authorities have solved 115 crimes by matching DNA samples taken from felony suspects after they were arrested, according to a Tennessee Bureau of Investigation report.

"Being able to take the sample earlier in the process was seen as a good crime-fighting tool," said TBI spokeswoman Kristin Helm.

But critics of the legislation in Georgia argued that the law assumes that suspects are guilty upon arrest and violates their constitutional rights.

"[You] can't take an underlying felony charge and use it to do anything," Rep. Ed Setzler, R-Acworth, said Thursday in the Judiciary Non-Civil Committee meeting. "Constitutionally, it presents a challenge."

Critics also questioned whether the sample would be destroyed if the charges on a suspect were dropped or acquitted after trial.

But McKoon, whose bill was backed by the Georgia Police Chief's Association and several victims' rights groups, argued that the U.S. 9th Circuit Court of Appeals ruled in September that the federal law authorizing DNA samples was constitutional.

In the case U.S. v. Pool, the court decided the federal law that requires DNA to be taken from individuals charged with a federal felony didn't violate defendant Jerry Pool's constitutional rights. Pool was required to give a sample after being charged with possession of child pornography.

Rep. Jay Neal, R-LaFayette, who sponsored the House bill that was used in place of McKoon's bill, said his legislation makes it easier for those who were arrested to get their records expunged if their charges are dropped or they are acquitted.

Neal added that the Georgia Bureau of Investigation has the money to begin implementing a law to sample all convicted felons, including those on probation. Currently, the law requires only that certain violent felons who are convicted must provide DNA samples.

But the additional cost that would come with all felony arrests is too high for the state to pay at this time, he said.

McKoon estimated the initial cost of the program would be about $3.8 million and each year would cost about $3.1 million. He said a provision was added into his bill that would require the sampling only when funds were provided.

Tennessee law enforcement was able to afford its program after former Gov. Phil Bredesen directed about $1.3 million to it in 2008, Helm said.

GBI spokesman John Bankhead said it's important that Neal's bill is passed so DNA of all convicted felons can be documented and kept in the state database. While the GBI isn't opposed to McKoon's version, he said the money isn't there for the added cost and the GBI crime lab has bigger financial problems ahead.

Next year, a federal grant for the GBI crime lab will run out and the state must appropriate $2.7 million or the department will lose positions, Bankhead said.

Walker County Sheriff Steve Wilson said while McKoon's bill would help solve crimes, he didn't see how any local agency could afford it.

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