This story was co-published with ProPublica.
Seven months after the federal government gave final approval to a controversial plan to collect DNA samples from undocumented immigrants, the program has yet to launch.
As of mid-June, the FBI had given federal agencies more than 55,000 kits to collect DNA from people arrested or detained, an FBI spokeswoman said in an interview. The FBI lab had received 697 DNA samples in return, but all of them were from people arrested in criminal cases, not detained immigrants.
A spokesman for Immigration and Customs Enforcement, a division of Homeland Security, said the agency isn't currently collecting DNA from detained immigrants. Two ICE officials told us they weren't even aware of the program.
"Given the enormity of the issue, we are still working through implementation," said Matthew Chandler, a spokesman for Homeland Security, which oversees the immigrant DNA collection mandate.
Chandler declined to discuss the specific problems that have to be solved before the program can begin. "We have the largest law enforcement force in the federal government and it's a matter of making sure we're implementing this in the best way possible," he said.
Under the program, which the American Civil Liberties Union and other groups have argued amounts to an unconstitutional search and seizure, some 1.2 million DNA samples would be sent each year to the FBI's already overburdened crime lab in Quantico, Va. Scientists there will then enter the samples into the national DNA database.
If and when the program is implemented, federal agents will take most of the DNA samples by swabbing the inside of a person's cheek, a process that proponents of expanded DNA testing say is no different from taking someone's fingerprint.
Supporters of the 2005 DNA Fingerprint Act say the expanded database will help law enforcement officers catch dangerous criminals like Angel Resendiz, a serial killer who was executed in Texas in 2006. Resendiz, an undocumented immigrant, was apprehended and returned to Mexico many times before reentering the U.S., where he was arrested and charged with murder in 1999.
Sen. Jon Kyl, R-Ariz., who co-authored the DNA Act, wrote in a 2005 press release, "If his DNA had been taken at one of those deportations, Resendiz would have been identified as soon as that sample was tested."
Immigration lawyers and civil liberties advocates object to the law because they say most undocumented immigrants are held for suspected violations of civil, not criminal, laws and therefore shouldn't be entered into a criminal database.
David Leopold, a Cleveland attorney and president-elect of the American Immigration Lawyers Association, has said that some people rounded up during immigration raids turn out to be U.S. citizens. Those who are, in fact, undocumented immigrants "are mostly hard-working folks, not criminals," he said, adding that collecting their DNA "serves no legitimate law enforcement purpose."
Others oppose collecting DNA from immigrants because of the strain it will put on the FBI's lab, which has a backlog of more than 293,000 untested DNA samples from people arrested or convicted of federal crimes. Also waiting to be tested are unidentified DNA samples from about 2,000 crime scenes.
As we've previously reported, victims' advocates argue that testing delays allow rapists and murderers to remain on the streets.
Originally, the FBI's DNA database was limited to these convicted violent offenders. Over the years, however, its scope has expanded. Under the 2005 law, it now includes DNA samples from anyone arrested or detained by federal authorities, even if they aren't ultimately charged or convicted. People later acquitted of crimes can petition to have their DNA profiles expunged from the FBI's database.
Homeland Security Secretary Janet Napolitano assured Kyl at a hearing in May that her agency intends to carry out the mandate. She said Homeland Security "has been working with [the Department of Justice] and the FBI to resolve outstanding operational questions."
She did not specify what those operational questions might be.
Kyl’s office referred questions to a Republican staffer for the Senate Judiciary Committee, who told us that Republicans are satisfied with the department’s progress.
Michael Risher, a staff attorney with the ACLU of Northern California, said he was not surprised that the effort still isn't off the ground.
"The rule was not thought out well enough," Risher said, "and now we are stuck with it just because of politics."