At least 655 children who committed juvenile offenses during the past decade not only had their DNA obtained without any legal authority, but their genetic identifiers also slipped past state Crime Laboratory safeguards and into an FBI database.
That’s the finding of an internal Crime Lab review concluded Monday, about two months after a judge’s ruling revealed that the state’s largest youth lockup had been unlawfully collecting DNA samples from too broad a group of juvenile offenders since 2003.
The state Youth Services Division had directed the contractor that runs the youth lockup to collect DNA from youths adjudicated delinquent of any felony, even though state law only authorizes the collection of genetic material from children who commit specific violent and sexual offenses.
The discovery of the DNA information in the FBI’s system had been one of the concerns of public defenders and other youth advocates who worried that unlawfully collected information was being retained by the state.
In total, about 23 percent of the 2,879 DNA samples taken from juvenile offenders in Arkansas over the past decade corresponded to samples that were unlawfully retained. Those samples were put into the FBI’s Combined DNA Index System, or CODIS, a database most commonly used by law enforcement to identify DNA at crime scenes.
“It’s a lot of samples no matter how you slice it,” lab Director Kermit Channell said in an interview Monday. “I don’t look at it as a negligible thing because we’re not supposed to have them.”
Channell said that a listing of the 655 samples will be sent to the Youth Services Division’s lockupin the next few days. The agency will then have 30 days to find any proof that the samples were obtained legitimately.
If none is found, then the samples and any corresponding records will be destroyed and permanently wiped from the FBI database, he said.
According to the Crime Lab’s review, most of the unlawfully obtained samples were collected under the Youth Services Division practice at the Arkansas Juvenile Assessment and Treatment Center near Alexander. The facility, which is operated by contractor G4S Youth Services, not only houses about 100 youthful offenders but also handles intake for nearly all juvenile delinquents committed to state custody.
The Crime Lab’s review provides the first public assessment of the number of children affected by the practice. The Youth Services Division has denied requests to provide an estimate of how many youths the agency estimates had their DNA unlawfully collected.
According to the Crime Lab, more than 1,500 samples were found in the FBI’s database that were obtained from minors without legal authority.
But 868 of those samples corresponded to minors who initially had their DNA collected unlawfully but later committed an offense that required that the offender submit a genetic sample.
The juvenile 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, according to state law.
That law doesn’t apply to minors charged as adults. In accordance with state law, all adult felons and those arrested on certain violent or sexual offenses are required to submit DNA samples.
None of the 655 children uncovered in the review have been convicted of crimes that would require the collection of their DNA, Channell said. Nine of the children have had CODIS “hits” over the past decade, but none of those hits - a term for a match in the database - have resulted in “any legal actions,” Channell said.
“It’s just like if I entered in a DNA profile from a stolen car and it links back to the driver of the car, and the driver just happens to own the car,” Channell explained.
On Monday, Kate Luck, a spokesman for the Youth Services Division, said that the agency plans to review the Crime Lab’s list to make sure “that their list matches ours.”
Questions about what state law required in terms of DNA collection arose when Saline County Circuit Judge Bobby McCallister ruled on Jan. 22 that the Youth Services Division’s practice had led to the unlawful collection of genetic material from a boy at the Alexander facility.
In the days after the ruling, officials with the Arkansas Department of Human Services, which oversees the Youth Services Division, stuck by the practice and said the agency’s attorneys believed that state law required the broader practice at the Alexander facility.
But about three weeks ago, agency officials reversed their decision after Channell and the Arkansas Democrat-Gazette pointed out a 10-year-old attorney general’s opinion that mirrored the arguments against the practice that were put forth by McCallister and representatives from the state’s prosecutors, public defenders and the Crime Lab.
The same day the agency reversed its policy, Channell confirmed that the Crime Lab had found DNA samples in CODIS that shouldn’t have been put into the system.
Channell has said that the Crime Lab has always interpreted state law the same way McCallister did. In recent weeks, the lab disclosed that it had stopped 95 such samples from going into the system with safeguards meant to weed out those “ non-qualifying” samples.
But the discovery in late February that a random selection of samples had slipped through prompted the lab staff to comb through all of the samples to verify that they were obtained legitimately.
On Monday, Channell said the lab’s CODIS section “now know exactly” the crimes that require DNA collection because of the review.
And he’s considering requiring audits of the lab’s CODIS files every quarter to make sure only the correct genetic profiles are being put into the database.
Channell acknowledged that the Youth Services Division’s practice played a role in the samples getting into the national database, but he said the lab’s review also uncovered gaps in the lab’s safeguards.
“As much as I would like to say it’s someone else’s fault, I am willing to take responsibility for the ones that we have in there that we’re not supposed to because ultimately at some level we still need to be an appropriate gatekeeper for this information,” Channell said.
In ruling from the bench, McCallister told a G4S Youth Services staff member that the contractor or the Youth Services Division could be legally liable if the existence of unlawful samples somehow disclosed a youth’s confidential juvenile past and caused him to lose a job or some other harm.
On Monday, Luck, who is a spokesman for the Human Services Department, said the agency hasn’t been made aware of a situation where DNA information disclosed a minor’s confidential record.
“We’re not going to speculate on things that could happen until it does happen,” Luck said. “If that issue comes up, then we’ll deal with it then.”
Channell said he believes that McCallister had a legitimate concern about making sure the samples don’t disclose confidential information. And he hopes that destroying the unlawfully obtained samples will safeguard against that.
“I don’t think you can dismiss this concern,” Channell said. “That’s to a large degree why we’re making sure we’ve gotten these things taken care of. They are supposed to be sealed records. You don’t want this to follow someone, especially if it wasn’t supposed to be there in the beginning.”
Front Section, Pages 1 on 03/18/2014