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Wider samples of DNA argued

The Baltimore Sun

Lawmakers clashed yesterday with civil liberties advocates over a proposal to expand the collection of DNA samples to those who are arrested for serious crimes -- whether they are convicted or not. The debate was the first phase of what could be one of the most contentious issues in this year's legislative session.

Gov. Martin O'Malley has made the idea a centerpiece of his agenda, and several delegates are sponsoring similar legislation.

A hearing in the House Judiciary Committee yesterday over a bill sponsored by Del. Benjamin F. Kramer pitted those excited by the technology's potential to solve crimes against privacy advocates who worry that the genetic information could be misused.

Kramer's bill would authorize the state police to collect genetic information from all those arrested on suspicion of committing felonies, but O'Malley's proposal would require it for all those arrested in violent felonies or some burglary offenses.

Kramer, a Montgomery County Democrat, said the technology would provide the state with a powerful new way to solve crimes. "This is an important tool in our effort to change our status as the fifth-most violent state in the nation," he said.

Opponents of the idea said it violates constitutional privacy protections, would cost millions of dollars to carry out, could tax police departments and raises the specter of government misuse of its citizens' personal information.

"There are upward of 20,000 to 30,000 people arrested in Baltimore City alone and released without charge," said Cindy Boersma, legislative director of the American Civil Liberties Union of Maryland. "When you overwhelm an already under-resourced system you dramatically increase the risk of error."

A bill similar to the one debated yesterday failed to pass the House committee last year, in part because of its cost.

But this year, O'Malley has proposed spending $1.3 million to pay for an expansion of Maryland's DNA database. And with the governor's backing, the chances of some version of the bill passing are much better, said Del. Samuel I. Rosenberg, vice chairman of the judiciary committee.

"I think it is far more likely than not that we will pass a bill," said Rosenberg, a Baltimore Democrat. "I think it is a legitimate law enforcement tool that exonerates the innocent and helps identify the guilty. But we want to have adequate safeguards."

Senate President Thomas V. Mike Miller said that while Virginia has approved DNA testing at the time of arrest, the concept will be a "hard sell" in Maryland, particularly with civil libertarians. O'Malley has modeled his proposal on Virginia's program.

Miller said he supports the idea. "Every so often government has to get involved to protect people in spite of themselves," he said.

House Speaker Michael E. Busch said that while he hasn't staked out a position on the idea yet, he is gratified that the governor is making public safety a major theme in his agenda this year.

"I told the governor as long as you have a record number of homicides in Baltimore, you've got to do something," Busch said.

In his testimony yesterday, Kramer tried to allay concerns about government abuse of a huge DNA arrest database.

He noted that the only permissible uses of the DNA sample -- collected through a swab on the inside of a cheek -- would be to check the genetic information for a match against genetic samples collected at crime scenes.

Under Kramer's bill, any other use of the sample, such as to discover communicable diseases or mental illness, or to create a genetic "profile" to check for predisposition to criminality, would be a felony punishable by up to five years in prison.

According to an analysis by the Department of Legislative Services, 44 states, including Maryland, require all convicted felons to provide the government with a DNA sample.

Eleven states have passed laws authorizing genetic sampling of arrestees, including Virginia, where the state's highest court recently upheld a constitutional challenge to the law.

"This has been exceedingly successful in Virginia ... resulting in hundreds of arrests," Kramer said.

But the constitutionality of the practice remains unsettled, because the Supreme Court has not ruled on the matter.

In 2006, Minnesota's Court of Appeals overturned a statute authorizing DNA sampling of arrestees. And last year, South Carolina Gov. Mark Sanford vetoed a similar law passed in the state legislature, writing to lawmakers: "I believe this bill takes too big a bite from the foundation of civil liberty and privacy that are the hallmark of the American way of life."

Stephen B. Mercer, a criminal defense attorney from Rockville who tried in 2004 to persuade the state's highest court that Maryland's DNA databank was unconstitutional, told lawmakers yesterday that the Maryland Court of Appeals would likely overturn the legislation.

"The proponents are putting before you legislation that the Court of Appeals in very strong and forceful language has indicated it very likely would be treated as unconstitutional," he said.

In 2004, the databank survived a constitutional challenge, but a majority of the court's judges indicated that they were troubled by the implications of collecting genetic profiles.

Under Kramer's bill, people who are arrested but not convicted would have the right to have their DNA sample and genetic information expunged from local, state and federal records.


Sun reporter Laura Smitherman contributed to this article.

DNA legislation

Several lawmakers have proposed legislation to increase state collection of DNA samples from those accused of crimes whether they are convicted or not. Gov. Martin O'Malley is backing a similar bill. Currently, the state only takes samples from those convicted of felonies, fourth-degree burglary or breaking and entering into a motor vehicle.

Some details about the legislation:

Samples would be collected from those arrested for violent crimes and certain other serious offenses.

Similar statutes are on the books in 11 states: Alaska, Arizona, California, Kansas, Louisiana, Minnesota, New Mexico, North Dakota, Tennessee, Texas and Virginia.

Analysts estimate that the state could collect as many as 120,000 samples in the first year at a cost of $3.7 million.

People would be able to petition the state to have their DNA information deleted from the state's database if they are not convicted or if certain other conditions are met.

Source: Department of Legislative Services

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