The issue of illegal immigration carries with it an extraordinary level of political gamesmanship and manipulation on both sides of the ideological spectrum. However, whether you believe that illegal immigrants take American jobs or that they do the jobs most Americans aren’t interested in, one problem resulting from illegal immigration is fairly undeniable: Illegal immigrants flying under the radar of normal societal connectivity present unique challenges for law enforcement. No histories, no contacts with the “system,” no community “footprint,” leaves police with significantly fewer opportunities to solve crimes when illegal immigrants are involved.
But with all the talk of expensive fences and complicated paths to citizenship (attacked as veiled attempts at “amnesty”), there was actually one plan that made sense to pretty much everyone. Seven years ago, the decision was made to include in a DNA database those individuals identified as being in the United States illegally. A brilliant idea for several reasons. First, one of the most vexing problems surrounding the dynamic of illegal immigration is the issue of repeat offenders—those individuals stopped at the border or identified elsewhere in the country who are returned home only to cross the border the next day, week, or month. Their persistence often trumps our resources and our technology. Fingerprints can be useless in identifying those willing to burn their prints off after every new detention or arrest. And the fence, well don’t get me started.
And when illegal immigrants venture into criminal activity, law enforcement is at a decided disadvantage. Illegal immigrants often lack the social connections helpful to police in identifying suspects. They understandably try not to standout in a community. They've never been fingerprinted for a job. They may not have bank accounts, leases, or licenses. Their whole life, not just their criminal activities, is played out under the radar. Katie Sepich, the namesake of Katie’s law supporting arrestee testing, was raped and murdered by someone living in the country illegally. One of the nagging questions that persists in that case is whether he committed other crimes before he was arrested for Katie’s murder.
But a DNA database comprised of profiles of individuals identified as being in the country illegally? Now that could help with a whole number of issues associated with the problem of illegal immigration. No burning or filing away of your old DNA, as with fingerprints. And where criminal activity is involved, the database can be as effective as the current CODIS system is for convicted offenders.
It was a great idea. Congress even passed a law requiring the establishment of such a database AND allocated money to the FBI for its implementation. That's the way it should work. A serious problem with a reasonable and entirely feasible solution. It's not a new concept either. By now, we are pretty experienced with setting up and implementing DNA databases. One would figure a law passed in 2005 should start being integrated into our immigration/homeland security/criminal justice system by, let's say 2008?
Well not exactly. And unfortunately it's not just my overzealous enthusiasm that leads me to the conclusion that we are not where we should be. It's actually the opinion of the U.S. Department of Justice’s Office of the Inspector General.
The OIG laid out its findings in its 2011 Audit of the Federal Bureau of Investigations Convicted Offender, Arrestee, and Detainee DNA. According to the audit, prior to the enactment of the law, the FBI estimated that it would need to process up to 1 million DNA samples per year, primarily from detainees. However, what the Audit uncovered was that, "the FBI is not receiving the estimated volume of detainee DNA samples and does not have clear criteria from the Department of Homeland Security (DHS) regarding which DNA samples the DHS submits to the FBI Laboratory." The number of detainee profiles is actually closer to four thousand. Further, the Inspector General had to recommend that, "the FBI coordinate with the DHS to determine the criteria used to collect and submit detainee DNA samples."
Seriously? Six years later and we're still talking about collection criteria? The "DNA Sample Collection, Analysis, and Indexing regulation" was codified at 28 C.F.R. § 28.12 in 2008 and outlines the DNA-sample collection requirements for the DHS. The audit went on to say, "We contacted the FBI to determine how the DHS defines “detainee;” however, the Bureau said apart from the DNA Fingerprint Act of 2005 which legally establishes the collection of arrestee and detainee DNA, it did not know the criteria the DHS uses to determine when to collect detainee DNA." Furthermore, the Federal DNA Database Unit said that it was "under the impression that the DOJ and the DHS had communicated an agreement regarding detainee DNA collection." But when the Inspector General's Office contacted the Office of the Deputy Attorney General, an official there said they were not aware of policies regarding detainee DNA collection between the DOJ and the DHS. Finally they contacted the DHS Policy Office to discuss DHS criteria regarding DNA collection from detainees. As of the publication of the audit, they had not even gotten a response.
This is a pretty bad example of bureaucratic muck. It's not like we are trying to build a 3,000 mile super fence. The FBI is ramped up and ready to start DNA testing detainees on a large scale. But it appears that collection policy, or a lack thereof, is standing in the way. It's not money this time, or capacity, or backlog. This time it's the human part of the equation. I can't imagine what the excuse is for DHS not to be sending the samples to the FBI Laboratory. But while I don't know the excuse, it's not hard to guess the consequences: Agents on the front line of our border protection placed in greater danger because they have less information about who they are dealing with and people being victimized because law enforcement can't leverage the power of DNA technology against illegal immigrants the way we can with our own citizens. I think it’s time to make this a priority.
Chris Asplen consults with local, state, and foreign governments and law enforcement agencies on the use of forensic DNA technology. Chris is also the Executive Director of DNA 4 Africa and a member of the Crime Victim Bar Association. He may be reached at firstname.lastname@example.org.