innocence blog

A Web log for the Innocence Institute of Point Park University

Wednesday, October 04, 2006

Inmates Seek a Legal Pass out of State's DNA Databank

This article appeard in the New Jersey Star-Ledger on September 27, 2006:

Inmates seek a legal pass out of state's DNA databank

BY RICK HEPP, Star-Ledger Staff

Convicts may check their liberty at the prison door, but forcing them to provide samples of their DNA to state officials violates their civil rights, an attorney representing inmates told the state Supreme Court yesterday.

"You don't lose all your rights in prison," said Lawrence Lustberg, contending that requiring inmates to donate their DNA samples to the state's crime-fighting databank is unconstitutional.

State attorneys argued that collecting DNA samples helps solve crimes and set free innocent inmates.

The state's high court is trying to decide who must submit DNA to the state's databank and whether the state can keep those samples forever. Two appeals courts have ruled the collection is constitutional but have split on whether or not the state can retain the samples.

Lustberg argued that if the Legislature crafted the 2003 law to help police solve crimes, it should conform with the strict rules police must follow in any other crime investigation -- including how they conduct searches.

Despite the law's "vast array of benefits," Lustberg said collecting DNA is "unconstitutional because it's a search, and a search is only allowed under certain circumstances. You still have your Fourth Amendment rights."

The Attorney General's Office argued the collection of DNA samples is no different than the collection of fingerprints, saying the samples are used primarily to identify offenders in the system but can also be employed by law enforcement to solve other crimes.

"There is no expectation of privacy in a criminal's identity," said Senior Deputy Attorney General Larry Etzweiler. "You sacrifice it permanently."

Etzweiler argued that since its primary purpose was keeping an accurate database of offenders, the law meets a set of "special needs" that exempts it from the rigorous standards for a typical search.

At one point, Chief Justice Deborah Poritz asked Lustberg whether his argument would change if he considered that DNA samples collected from offenders have been used to exonerate other prisoners wrongly accused of crimes.

"Exoneration is the flip side of law enforcement," Lustberg said. "The investigation continues until you make sure you got the right person. This is what law enforcement does."

The constitutionality of DNA databanks established by the federal government and all 50 states has long stood. Without exception, courts have ruled the ability of DNA to solve crimes and exonerate the innocent outweighs the minimal intrusion of requiring a blood sample or cheek-swabbing.

New Jersey has collected 141,658 DNA samples since 1994, when it started requiring them from all convicted sex offenders. It expanded that program in September 2003 to require all adults and juveniles convicted of crimes to provide samples.

Since 2003, the database has produced 315 matches with DNA samples collected from crime scenes, according to Peter Aseltine, a spokesman for the Division of Criminal Justice. Information about those matches is forwarded to police and prosecutors for further investigation.

As usual, the justices reserved their decision.


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