CLEVELAND, Ohio -- Ohio is among more than 30 states in recent years that have expanded their reach to collect DNA samples from people when they are arrested, rather than convicted, of serious crimes.
But for those who are never convicted, removing a DNA profile from state and federal databases used to solve crimes, is rare and, some say, burdensome.
Cuyahoga County officials recently have made a push to make sure all DNA samples are collected in all arrests for a felony offense, which has been required by Ohio law since 2011.
The Plain Dealer reported in June that thousands of DNA samples -- often on cheek swabs -- were going uncollected here, a problem identified by the prosecutor's office as it reinvestigated thousands of old rape cases. The office since has worked with the Common Pleas court, the Sheriff's office and others to close gaps that led to the oversights.
The prosecutor's office, along with researchers from Case Western Reserve University's Begun Center, is formulating a plan to collect some of the missing or "owed" samples from people with active court cases or on parole or probation.
However, there is a flip side to the issue.
It is just as important to make sure that people who are found not guilty, have charges dropped or dismissed, or who never end up being charged after an arrest, can easily have their DNA removed -- or expunged -- from the crime databases, said Cuyahoga County Chief Public Defender Mark Stanton and Deputy Chief Public Defender Cullen Sweeney in a recent interview with The Plain Dealer.
The issue disproportionately affects low-income people of color who are more often stopped, searched and arrested, and already are unfairly overrepresented in government DNA databases , Stanton and Sweeney said.
Unfortunately, the process is not simple in Ohio, and the burden is placed on a person who was wrongfully accused to get a court order to remove DNA from the databases, often referred to as CODIS, said Sweeney.
The public defender's office handles thousands of requests each year to help people seal criminal records.
They fall into two main categories: people with an old felony or misdemeanor conviction, and people who were arrested for, but never convicted of, a crime. Having a public record of a charge can hinder job or housing prospects.
Those people are also eligible to have their DNA removed, so long as they don't have other convictions that would also require it to be kept.
What's unclear is how a person would ask to have their DNA excluded if they were arrested, had their DNA collected, but were never charged with a crime.
Removal is rare
In Cuyahoga County, which has the most felony arrests in the state, requests to seal records that include the removal of DNA appear to be relatively rare.
Just how rare is difficult to estimate. The Common Pleas Court doesn't track how often its judges grant those requests, a court spokesman said, and the information isn't public record because it is sealed.
In interviews with The Plain Dealer, public defenders, criminal defense attorneys, court officials, judges and state officials had differing understandings of how, exactly, the process was supposed to work. Some thought individuals or their attorneys had to request DNA expungment separate from sealing a record. Others thought judges had to specify for state officials that the DNA be removed in addition to sealing a person's criminal record in cases where they were never convicted.
Ohio's Bureau of Criminal Investigation, which receives copies of the record-sealing orders from county judges -- thousands each year -- is responsible for removing the information from state databases. It doesn't keep track of how many of the orders involve removing DNA profiles from Ohio's DNA database, spokeswoman Jill Del Greco said.
Del Greco said BCI reviews each order for records sealing and, if the person has no other arrest or conviction that would require their DNA to be included, it is sealed from the database -- whether or not the order specifically states it should be.
However, if the state failed to properly expunge DNA as a judge ordered, though, Ohio law still allows searches of that DNA to be used in investigations and court cases, Sweeney said.
Stanton said he's not convinced the process is handled in a standard and consistent manner by BCI, and also wonders why, if that critical safeguard is in place, it isn't well-known or discussed by criminal defense attorneys.
Common Pleas Judge John P. O'Donnell includes wording in each of his orders in cases where a person was not convicted specifying that DNA also be sealed. Not all judges do that and it isn't included on a standard order the court uses for the process. He said it would be fair for BCI to remove the DNA without the order but likely beyond their authority.
"To me, the better practice would be to inform the court of its omission and ask for a revised order," he said.
More attention to the issue
The public defender's office plans to streamline ways to determine which clients are eligible to have their DNA removed, though it would prefer that burden be on the state, officials said.
Determining who is eligible can be tricky because requirements and time frames for sealing a record and for expunging DNA in certain cases might not be the same, Sweeney said.
"Once it is determined that the arrested person is not convicted of a crime, his or her DNA should be automatically expunged -- that is the law in several states," Sweeney said.
A few states do make the DNA expungement process automatic, though in most it is upon a person to make the request, either by letter or, as in Ohio, by requesting a court hearing, which often means hiring a lawyer.
Larger privacy concerns
Beyond practical concerns about the DNA expungement process, public defenders, private criminal defense attorneys and civil liberties groups say it is overly invasive to allow the government to take and retain biological information that identifies a person, or even members of their family, when they've not been convicted of a crime.
That was an argument made by the ACLU of Ohio six years ago when Ohio's laws changed to allow DNA to be collected from people arrested for felonies. The controversial provision was tucked into a sweeping criminal justice reform bill that also included changes as to how suspect lineups were conducted and how long DNA evidence had to be retained in murder and rape cases.
Providing a path for sealing DNA was a late addition to the bill, likely to balance some of the concerns, Gary Daniels, chief lobbyist for the ACLU, said.
Since the law was passed, the number of DNA hits, or matches that lead to possible suspects, in Ohio criminal cases handled by the state lab has more than doubled each month, according to lab officials. DNA included in the database also has helped exonerate some who were wrongfully convicted.
The state last year started to let law enforcement agencies request broader database searches that could use the DNA of family members to identify a suspect in a crime, though so far it can only be done narrowly for unsolved violent crimes.
The ACLU would again push to put the onus on the government, rather than a citizen, to expunge the DNA if the issue comes before lawmakers again, Daniels said.
"It gave, and still gives, us great concern because of the amount of information that can be discovered about people and their families from their DNA. We are talking about innocent people, yet their DNA is in the government's hands," Daniels said.
It's not clear whether that will happen.
The U.S. Supreme Court in 2013 effectively cemented the ability of law enforcement to routinely collect pre-conviction DNA. The 5-4 ruling in Maryland v. King called DNA swabbing a "reasonable" part of the booking process, akin to fingerprinting and photographing an arrestee.
Former Justice Antonin Scalia's dissent blasted that contention. The point of collecting DNA is not to identify a person but to connect them to crimes. "Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches," Scalia wrote.