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Sunday, July 30, 2006

Ind. Law - Indiana felons must provide DNA

Richard D. Walton of the Indianapolis Star reports today that:

Thousands of convicted Indiana felons are being required to give DNA samples at county probation offices.

Starting Monday, felons in Marion County must begin providing the samples. Felons in counties surrounding Indianapolis must begin the process in August, with the rest of the counties phased in after that.

Previously, only those who committed the most violent crimes were routinely tested. But under a 2005 state law, all felons in the state must submit to the procedure. * * *

"I'm not sure simply being convicted of any felony ought to subject you to ... that kind of intrusion," said Paula Sites, assistant executive director of the Indiana Public Defender Council.

Sites is concerned that the public may put too much faith in DNA testing. The substance is not recovered from many crime scenes, and samples can be contaminated, she said. "It's not the sort of across-the-board panacea that the public is maybe led to believe."

All 50 states have criminal DNA databases. Some test only those convicted of murder or other violent offenses. Some states collect samples from juveniles convicted of crimes that would be felonies if committed by an adult. Several states, including Virginia, permit DNA tests on people upon their arrests.

The law is IC 10-13-6, passed in 2003. Section 10, listing the persons required to supply DNA samples, and Section 11, "guidelines relating to procedures for DNA sample collection and shipment," were last amended in 2006.

Who may be required to provide DNA samples has been looked at by a number of federal circuit courts, including the 7th Circuit. See this ILB entry from 1/9/04, on the Wisconsin case of Green v. Berge, upholding a Wisconsin law compelling felons in Wisconsin prisons to submit a DNA sample for analysis and storage in a data bank. In a concurring opinion Judge Easterbrook posits that:
there are at least four major categories, potentially subject to differing legal analysis.

Prisoners make up the first category. Their privacy interests are extinguished by the judgments placing them in custody. * * * Persons on conditional release—parole, probation, supervised release, and the like—are the second category. * * * One common condition of release is submission to tests for drugs, without the need for person-specific suspicion. DNA may be extracted from samples obtained through these tests without any incremental invasion of privacy. * * * Felons whose terms have expired are the third category. Established criminality may be the basis of legal obligations that differ from those of the general population. “A broad range of choices that might infringe constitutional rights in free society fall within the expected conditions . . . of those who have suffered a lawful conviction.” McKune v. Lile, 536 U.S. 24, 36 (2002). One need only think of Megan’s Law and its variations across the nation. * * *

Those who have never been convicted of a felony are the last distinct category. What is “reasonable” under the fourth amendment for a person on conditional release, or a felon, may be unreasonable for the general population. Just as parolees’ homes may be searched without a warrant or probable cause, while both are required to search a free person’s home, so it may be that collection of DNA samples from the general population would require person-specific cause—or at least a “special need,” whatever the meaning of that phrase in recent decisions turns out to be. See Indianapolis v. Edmond, 531 U.S. 32 (2000); Ferguson v. City of Charleston, 532 U.S. 67 (2001).

See also this August 19, 2004 ILB entry.

Posted by Marcia Oddi on July 30, 2006 12:15 PM
Posted to Indiana Law