March 14, 2009
Colorado's current law already requires the taking of DNA samples from all CONVICTED felons, whether violent or not, and allows storage, search and use of that DNA in perpetuity. Current law allows investigators to collect, use and store any or all DNA found at any crime scene, which IS appropriate to help identify perpetrators and solve crimes.
However, SB 09-241 expands that to include all persons arrested on a felony (accused but not convicted) and the ability to take it by "reasonable force" if necessary. Prior to conviction, these people are presumed innocent. This law would sweep in nearly 25,000 innocent people every year into a permanent government controlled DNA data-base, with very little legal protections about its future use. It creates a process where the burden falls on the innocent person, if they wish to extract or expunge their DNA from the government database. In fairness for full disclosure I was the only "no" vote in committee and it passed with bi-partisan support.
WE NEED TO SLOW DOWN AND REALLY THINK ABOUT THIS!
Like most of you, growing up I learned that in the United States of America we are innocent until proven guilty.
This premise is behind why we require probable cause under the 4th Amendment for all Search and Seizure, notice of charges against a citizen, right to counsel, right against self-incrimination or torture to extract confessions, right to confront (cross-examine) witnesses against you and why we require the government to PROVE each and every element of a criminal charge beyond a reasonable doubt before a jury of your peers.
Historically, we did this because of past government abuses on other countries that meant that innocent people lost their rights and lives and led to tyranny. The government's ability to take your freedom or your life is one of the greatest potential powers they hold. Therefore, the presumption of innocence is key.
The proponents of this bill rightly point out that this is a very useful tool for law enforcement and for solving crimes. They are right. It is. They indicate that early capture of more DNA will increase the probability of finding and catching bad guys earlier, and thus, preventing possible future crimes. This too, is true. However, we can serve those aims by our current law of to capture DNA from CONVICTED (rather than accused) felons.
The proponents liken DNA to fingerprints, which is in part true in that it can be a forensic biological tool for identification. However, DNA is more more, with 3 billion markers and contains our most intimate private biological markers for life: past, present and future.
In a nutshell here are the current problems with the measure:
- It moves the line from convicted to accused, doing violence to the notion of innocent until proven guilty.
- It allows the taking of DNA, by force if necessary.
- Thousands of innocent people's DNA under the current law will be swept into the DNA database every year.
- There are little to no parameters about the future use of the DNA.
- The DNA can be kept and searched in perpetuity in the future.
- It does not allow the accused person to also request and seek access to the DNA database for possible exoneration or mitigation.
- The bill as drafted does not prevent "familial searches" of DNA where by mitochondrial DNA your families or relatives DNA (who may have NEVER had any contact with law enforcement) may be identified and searched.
- The bill has no reporting or accountability measures to provide accountability to its intended v. actual use.
The passage of this bill will no doubt be a helpful tool to law enforcement . However, we need to be careful, swabbing all of us at birth to create and store in the government DNA database would probably be the most useful tool of all but it does not make it right, legal or constitutional.
The bill costs us $1.7 million dollars and is headed to Senate Appropriations for consideration.
February 24, 2009
Today we heard the "sunset bill" for the Civil Rights Commission in Colorado (SB 110). We review this Division once every 10 years and consider making recommendations for its improvements.
Employees who have had their civil rights violated by employers with less than 15 employees have no meaningful remedy, yet the civil rights violations to the victims can be every bit as severe.
Even though we have had the federal Civil Rights Act since 1964, Colorado has failed to adopt the parallel remedies found in Title VII. Senator Morse, Senator Hudak and myself worked to bring these remedies to Colorado and while we initially had the votes to include them in the bill, we did not have the votes to keep them in the bill.
Where there is a right, there needs to be a remedy and if the conduct (i.e. violating someone's civil rights) is as serious in 2009 as it was in 1964 then we should have no problem following in the footsteps of our federal predecessors 45 years ago.
Senator Newell brought a particular interest in education and prevention of civil rights violations through increased training and education.
Even without any remedies in the bill, all 3 Republicans voted against continuing the Civil Rights Division at all.
Tomorrow we will have a final vote on SB 09-88 which provides domestic partnership benefits to state employees. In our capacity as an employer, I believe the state has an obligation to not discriminate but also to act as a model employer for best practices. In this economy we need as many jobs, with as many benefits as possible, to weather this down-turn and fight for a stable middle class.
For many of us, "equal protection under the law" means "equal protection under the law" which affords no place for 2nd class citizens in the United States of America. The need for civil rights and civil rights champions is as critical now as it was in 1964.