A legislative proposal in Georgia is drawing attention for potentially requiring DNA swabs from immigrants taken into custody, even for minor offenses. This measure could apply to immigrants who are not ultimately deported following their detention.

Expanding DNA Collection Beyond Convictions

While DNA collection from convicted criminals has been standard for three decades, many states now swab individuals arrested for serious felonies. Georgia's proposed measure targets those charged with less serious misdemeanors, provided federal immigration authorities request their detention.

If passed, Georgia would become the third state to specifically mandate genetic material collection from immigrants believed to be in the U.S. illegally, a practice not applied to others arrested for similar offenses. Florida enacted a similar law in 2023, and Oklahoma authorized such collection in 2009, although its implementation is subject to funding.

Concerns Over Broad Surveillance

Stevie Glaberson, director of research and advocacy at Georgetown University's Center on Privacy and Technology, noted this as an example of government entities collecting DNA in "all available contexts." The FBI's National DNA Index System, launched in 1998, now holds over 26 million profiles.

A federal law from 20 years ago permitted the Attorney General to expand collection to arrestees and noncitizens detained under federal authority. During former President Trump's first term, a Department of Justice rule removed discretion, leading the Department of Homeland Security to add over 2.6 million detainee profiles to the national database.

Details of the Georgia Legislation

Currently, only 10 states collect DNA from those arrested for certain misdemeanors, like sex offenses, and none collect it for all misdemeanor arrests, according to an AP analysis of Boise State University data.

The Georgia bill, sponsored by Republican State Sen. Tim Bearden, would mandate DNA collection for immigrants facing any misdemeanor or felony charge if U.S. Immigration and Customs Enforcement (ICE) issues a detainer but fails to pick up the individual within 48 hours.

Justification and Criticism

Senator Bearden argued the measure is a tool for solving crimes, stating that DNA technology "help[s] us tremendously when we’re trying to make sure to bring justice to victims." The Department of Homeland Security affirmed that law enforcement partnerships are vital for arresting "criminal illegal aliens across the country."

This legislation builds upon a 2024 Georgia law requiring local police cooperation with federal authorities to detain immigrants illegally, under penalty of losing state funding.

Mazie Lynn Guertin of the Georgia Association of Criminal Defense Lawyers pointed out that traffic offenses considered civil violations elsewhere are misdemeanors in Georgia, potentially subjecting drivers to this law. She questioned the public safety benefit, stating the link between a broken taillight and a DNA-solvable crime is "pretty attenuated in most cases."

Legal and Constitutional Questions

Kyle Gomez-Leineweber of Common Cause Georgia explained that individuals subject to federal immigration detainers may later prove legal presence. He argued the law creates a "two-tiered system" based on the perception of immigration status.

Maryland's law, which allows DNA collection from those charged but not convicted of serious crimes (with deletion if no conviction occurs), is often cited to justify expansion. However, advocates question if civil immigration detainers meet the probable cause threshold required by the Fourth Amendment.

Jorge Loweree of the American Immigration Council stated there seems to be no meaningful justification for states to mandate DNA collection from noncitizens merely accused of a crime. He suggested the action appears to be "just an effort to increase the surveillance of noncitizens."