Special Counsel Henry J. Kerner today released the following statement after the Department of Justice released a proposed rule mandating that U.S. Customs and Border Protection (CBP) begin collecting DNA samples from detained criminal subjects. The new rule comes after the U.S Office of Special Counsel (OSC) in August alerted the President and Congress that CBP has for years failed to comply with the 2005 law.
“I applaud the Departments of Justice and Homeland Security for taking action to initiate DNA collection from criminal detainees," said Special Counsel Henry J. Kerner. “CBP's longstanding noncompliance with the law, based on a decade-old exception, allowed criminal detainees to walk free. Because whistleblowers spoke up, DNA samples from criminal detainees will be cross-checked in a database to see if individuals have been accused of violent crimes. This rule will bring more expeditious justice for victims and will help get criminals off the streets."
Background:
Under the DNA Fingerprint Act of 2005, federal law enforcement agencies are required to collect DNA samples from arrested or detained individuals. However, the law authorizes the Attorney General to grant exceptions in certain circumstances. In March 2010, citing a lack of agency resources, then-Secretary of Homeland Security Janet Napolitano requested a DNA collection exception for certain classes of individuals. But with respect to criminal arrestees, Secretary Napolitano clearly stated that she “intend[ed] to phase-in implementation [of DNA collection] over the next year." In July 2010, then-Attorney General Holder similarly stressed the importance of expeditious compliance with criminal DNA collection requirements, and noted exceptions were granted “at the present time" because of “operational exigencies and resource limitations."
The whistleblowers who came to OSC asserted that pursuant to these memoranda and based on the language of Secretary Napolitano's request and Attorney General Holder's approval, DHS operated under the assumption that it had one year to initiate the collection of DNA from criminal subjects. The whistleblowers alleged that after the one-year period lapsed, CBP did not start collecting DNA samples from detainees, and that this failure allowed individuals with serious criminal offenses to avoid prosecution. Crimes committed by individuals detained multiple times went unsolved for extended periods of time, in some instances even decades.
In letters to the President and Congress, Special Counsel Kerner determined that CBP's investigative findings did not appear to be reasonable. He also recommended the Department of Justice review the applicability of the 2010 memorandum CBP continued to use as a basis for its inaction.
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