To reflect recent developments in the case, this article has been updated since it was originally posted on November 3, 2003.

As scientific advances provide law enforcement with better, more efficient tools for solving crimes, questions are being raised about whether or not certain technology-driven practices infringe upon personal liberties.  DNA sampling, in particular, has become the center of a debate in some western states after a recent decision by the United States Ninth Circuit Court of Appeals regarding the constitutionality of forcibly collecting DNA samples from convicts.

In early October, the Ninth Circuit reversed a lower court judgment that upheld the DNA Analysis Backlog Elimination Act of 2000, which requires those in federal custody, on parole, on probation, or on supervised release to provide DNA samples.  The Ninth Circuit ruled in the case U.S. v. Kincade that without reasonable suspicion, collecting DNA samples by forced blood extractions violates the Fourth Amendment.

The Ninth Circuit's decision could have a broad impact because the court handles appeals for many states, including California, Nevada, Utah, Oregon, Washington, Arizona, Montana, Hawaii and Alaska.  In the wake of the ruling, a dispute over DNA collection has emerged in Alaska, where a judge has issued a preliminary injunction blocking the state from obtaining DNA samples from some convicted sex offenders.    

The day after the Ninth Circuit's decision, a suit was filed in federal court against the state on behalf of sex offenders who have finished their sentences.

"We filed a class action and the class is limited to those people who are required to register as sex offenders and are off of probation or parole," said attorney Darryl Thompson, who represents the plaintiffs.  "For all constitutional purposes, they are free people."

When an Alaska U.S. District Court judge first issued a temporary restraining order and then a preliminary injunction preventing the collection of DNA samples from convicted sex offenders, he cited the Ninth Circuit ruling as grounds for his order--despite a mandate under state law to collect those samples.

This is where the debate begins.

"Our legal position is that the Ninth Circuit decision shouldn't apply [to the DNA collection that is taking place in Alaska]," said Dean Guaneli, the state's Chief Assistant Attorney General.

Drawing DNA Differently

According to Guaneli, the law should stand because Alaska uses swabs to collect DNA samples from the mouth rather than drawing blood.  The Ninth Circuit ruling pertained specifically to a case involving forced blood extractions, he pointed out.

Thompson, however, believes that the manner in which the state obtains the DNA sample is irrelevant.

The state claims that the fact that the use of a swab makes a "constitutional difference," Thompson said.  "It's our position that [it's] a distinction that makes no difference at all."

Either way, whether a needle or a swab is used, the state is infringing upon the personal freedoms of ex-offenders, who are now free citizens, by requiring them to provide DNA samples, Thompson said.

"The state has no business sticking things in my body," Thompson said.  "I think that it really undermines the whole concept of the right of privacy."

According to Thompson, people have zones of "zealously guarded privacy", which include the body and the bedroom.

"When you force someone to give up biological data, you're intruding on one of those zealously guarded zones of privacy," Thompson said.

In order for the government to enter these private areas of an individual's life, it must have a warrant, probable cause or individualized suspicion, according to the Fourth Amendment, Thompson said.  "[If not], you can't do that to free people."

DNA Data: A Law Enforcement Tool

In its decision, the Ninth Circuit held that in order for the government to intrude on these privacy zones, by searching parolees for law enforcement purposes without their consent, there must be, at least, a reasonable suspicion to do so.

"There's a lot of [searching mechanisms] that would be very useful for law enforcement purposes," Thompson said.  He noted that it would be helpful to law enforcement if they were permitted to enter homes with no reasonable suspicion, but they are not allowed to intrude on people's privacy that way.

"The fact that it works doesn't justify it," Thompson said.  "There has to be a [legal] process."

State officials believe, however, that DNA sampling of convicted sex offenders does not constitute a violation of an individual's privacy.

"It's a really important law enforcement tool," Guaneli said.  "It takes just a few seconds to get a mouth swab from a person," he added.  "It's not a big intrusion."

Guaneli also pointed out that DNA is useful in not only convicting people of crimes, but also in exonerating them.

Thompson is critical of this argument, however, pointing out that many states are reluctant to hold post-conviction DNA exoneration hearings, but still want to collect DNA for the purpose of convicting people of crimes.

The issue at hand, however, is how and when DNA samples are collected which may change soon in Alaska, because of a judge's ruling last week.

The Future of DNA Sampling

With the Alaska judge issuing a preliminary injunction and continuing to block the state from collecting DNA samples from convicted sex offenders, more cases focusing on the constitutionality of DNA testing will likely appear in Alaska.

"Other people may jump on the bandwagon," Guaneli said.  "I think that's probably a logical consequence of it.  It remains to be seen whether they're going to try to expand it to cover other types of people."

"Ours is a fairly narrow class of people," Guaneli said.  "Right now it doesn't implicate our corrections department," he added, because the lawsuit pertains to people who are convicted of sexual offenses, but are no longer on probation or parole.

According to Guaneli, there will be much more action on the legal battlefront, both at the state and federal level, before there is a final decision about the legality of DNA sampling.

"There's a lot of legal work to be done before we get this issue resolved," Guaneli said. "What we expect to happen is that the federal government will be taking some action to challenge the Ninth Circuit ruling."

Guaneli predicts that the Supreme Court will become involved because of an earlier Ninth Circuit ruling on a different case, where the court held that an Oregon statute requiring DNA samples from convicted murders and sex offenders did not violate the Fourth Amendment.

Alaska is now waiting to see if the federal government challenges the Ninth Circuit ruling on which the ban on DNA sampling in the state is based.

"This has the potential to stop DNA sampling as a law enforcement tool," Guaneli said of the Ninth Circuit's ruling.

Thompson, who agrees with court's decision, wouldn't mind seeing an end to DNA sampling, at least for convicted sex offenders who are no longer on probation or parole.

"It's the government taking another shot at control over people who are supposed to be free," Thompson said.  "[Why don't we] do away with the Bill of Rights, do away with the Fourth Amendment?"

Resources:

To contact Dean Guaneli, call (907) 465-3428

To contact Darryl Thompson, call (907) 272-9322

To access the Ninth Circuit's Opinion, go to http://www.ce9.uscourts.gov/