Court upholds collection, archiving of prisoner DNA

Saying the benefits of solving crimes outweigh concerns about prisoner rights, the state Supreme Court yesterday declared that state prisons may take DNA samples from inmates and add them to a permanent electronic catalog.

In unanimous rulings issued in two similar cases, the state's high court decided that DNA testing is one of several privacy rights convicts must forfeit.

"In short, we find the intrusions on a person's privacy interest occasioned by the DNA test are akin to the intrusions a convicted person will already undergo in the taking and maintaining of fingerprints and a photograph," Justice John Wallace wrote for a unanimous court. "The DNA test results are merely a more accurate way of identifying that person."

In arguments before the court in September, lawyers representing inmates argued their clients don't lose all their rights just because they go to prison. The samples, they argued, were essentially unconstitutional searches.

State attorneys countered that the samples help solve crimes and can establish the innocence of some inmates. Before yesterday's decisions, two appeals courts both had endorsed the collections' constitutionality, but were split over whether the state could keep the samples.

The judges declared the "slight intrusion" on the convict's privacy rights had to be weighed against the "state's compelling interest in maintaining a database that will permit accurate identification of persons at the scene of a crime, as well as other laudatory purposes." Criminal sanctions are in place, they added, to avoid abuse of the data.

Larry R. Etzweiler, the senior deputy attorney general who argued on behalf of the state in one case involving a juvenile offender referred to as A.A., applauded the ruling. "It's a very important case. DNA helps to convict the guilty and, equally importantly, it helps to exonerate the innocent," he said.

"The court has held that the state has a special need to collect and maintain information identifying people who have committed crimes." He said the Supreme Court has "completely endorsed" the state's program. "It's a complete affirmation of the process we have been following and we will continue to follow," said Etzweiler.

The ruling upholds a 1994 law that let the state collect samples from sex offenders. The program was expanded in 2003 to require all adults and juveniles convicted of a crime to provide samples.

Since the law went into effect, the state has collected more than 141,650 DNA samples, and at least 93,000 of them have been turned into searchable DNA profiles, said Etzweiler. Those profiles have been matched with 563 DNA samples collected in other cases. The law also requires the DNA data be sent to the FBI for inclusion in its national database.

Lawrence Lustberg, one of the lawyers who unsuccessfully challenged the DNA collection law along with the American Civil Liberties Union of New Jersey, called the decision "disappointing."

"We had hoped the New Jersey Supreme Court would continue to be a trailblazer in the area of constitutional liberties," he said. Still, he was pleased with the court's opinion because it "limits the damage" to how far law enforcement can go in conducting searches and seizures.

As for the decision in the juvenile case, Lustberg was disappointed that the Supreme Court rejected the fundamental notion that crimes committed as a child should not follow an offender into adulthood by allowing the DNA profiles to remain in the database.

Deborah Jacobs, executive director of ACLU of New Jersey, agreed the precedent is disturbing.

"In light of New Jersey's history of respect for privacy rights, it's hard to believe that our state would allow a law that requires a teenager or preteen to have his DNA extracted, catalogued, and maintained by the government for the rest of his life because of a minor act of delinquency," she said.

"By ruling that we have no greater privacy interest in our DNA than we do in our fingerprints, the court has set the legal framework that could allow the government to require and obtain all New Jerseyans' DNA samples upon birth," she added.

Lustberg and the ACLU represented A.A., who pleaded guilty to the adult equivalent of aggravated assault in 2002, and Jamaal Allah, who pleaded guilty to drug charges in 2001.

Another defendant in the case, John O'Hagen, who pleaded guilty to a drug charge in 2002, was represented by the Public Defender's Office. Spokesman Tom Rosenthal expressed disappointment with the ruling. An appeal to the U.S. Supreme Court is unlikely, he said, because similar laws have been upheld around the nation.

Jacobs said no decision has been made on whether to appeal the case.