Thursday, August 19, 2004

U.S. Court Allows Some Forced DNA Tests

http://channels.netscape.com/ns/news/story.jsp?id=2004081820080002792121&dt=20040818200800&w=RTR&coview=

In Reversal, U.S. Court Allows Some Forced DNA Tests

SAN FRANCISCO (Reuters) - The U.S. government can require certain criminals to submit to DNA testing after their release from prison, a divided U.S. federal appeals court ruled on Wednesday in a reversal of an opinion it issued last year. In October, a three-judge panel of the 9th Circuit Court of Appeals ruled that a federal law requiring people convicted of serious crimes to give blood for an FBI databank was unconstitutional. That 2-1 decision sided with the plaintiffs's argument that such a requirement violated Fourth Amendment rights against unlawful searches and seizures. An expanded panel of 11 judges overturned the opinion in a 6-5 decision on Wednesday. "Compulsory DNA profiling of qualified federal offenders is reasonable under the totality of the circumstances," Judge Diarmuid O'Scannlain, who was appointed by former President Ronald Reagan, wrote for the majority.
"Therefore, we today realign ourselves with every other state and federal appellate court to have considered these issues -- squarely holding that the DNA Act satisfies the requirements of the Fourth Amendment."
The case stems from a former Navy sailor Thomas Kincade who robbed a bank in 1993 with a gun. After his release from prison in 2000, tests showed cocaine in his urine and a court required him to undergo a drug program.
When his probation officer asked Kincade to submit a DNA blood test, he challenged the constitutionality of the 2000 law requiring certain criminals to provide DNA samples.
"The interests furthered by the federal DNA Act are undeniably compelling," the court ruled. "DNA profiling of qualified federal offenders helps bring closure to countless victims of crime who long have languished in the knowledge that perpetrators remain at large."
"DNA profiling can help to steer conditional releases toward law-abiding lives."
California's Attorney General Bill Lockyer hailed the decision. "California's DNA data bank contains profiles of 245,00 convicted felons," he said in a statement. "These data banks are crucial to match convicted felons to crime scene evidence and solve cases that were before deemed unsolvable."
STRONG DISSENT
Five judges dissented, with Judge Stephen Reinhardt calling the decision a "dangerous and drastic" limitation on liberties.
"All Americans will be at risk, sooner rather than later, of having our DNA samples permanently placed on file in federal cyberspace, and perhaps even worse, of being subjected to various other governmental programs providing for suspicionless searches," wrote Reinhardt, an appointee of former President Jimmy Carter, a Democrat.
"It is undoubtedly true that were we to maintain DNA files on all persons living in this country we would make the resolution of criminal investigations easier," he wrote.
"The same would be true were we to sacrifice all of our interests in privacy and personal liberty.
"We as judges do not have the authority to sacrifice those constitutional protections."
Monica Knox, a federal public defender in Los Angeles who represents Kincade, said she would seek to appeal the case to the U.S. Supreme Court.

08/18/2004 20:08 RTR