Suit Seeks Limits on DNA Sampling

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The420Guy

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When New Jersey's law requiring anyone convicted of a crime to hand over a DNA sample was enacted on Sept. 21, it reminded Ed Forchion - a marijuana-legalization activist better known as "NJWeedman" - of Minority Report.

In Minority Report, a short story by sci-fi author Philip K. Dick that became a movie starring Tom Cruise, crime rates are reduced to zero as the police arrest people for wrongs they only plan to commit.

The new law is an ominous step toward that Big Brother-type scenario, Forchion believes. As DNA will be used to solve crimes that have not yet been committed, he says, it requires searches of people who are not yet suspects.

"When you watch that movie, you're thinking, this is incredible. They're arresting people and convicting them of a future crime. And now they're taking our DNA," Forchion says. "You're not supposed to round people up for future crimes. I figured I'd be the one to step up and challenge it right away."

On Oct. 23, Forchion filed a pro se habeas corpus petition in U.S. District Court in Camden. He is challenging the constitutionality of the law on the basis that it requires an invasive search without probable cause and wrongly applies retroactively to those who made plea deals in which DNA was never discussed.

Forchion's rap sheet is too long to be described here - he's been arrested more than 30 times - (mostly 1st amendment protests) and his list of self-generated press cuttings is even longer. He's currently in the Intensive Supervision Program after being released from a 16-month jail spell on a marijuana-dealing conviction.

Not surprisingly, eight days after Gov. James McGreevey signed the expansions to the DNA Database and Databank Act, N.J.S.A. 53:1-20.17 (amended at PL 2003, c. 183), Forchion received a letter from his ISP judge, Superior Court Judge Shirley Tolentino, demanding that he "submit to having a blood sample drawn, or other biological sample collected, for purposes of DNA testing."

In the past few weeks, thousands of similar letters have gone out across the state as county sheriffs' departments and ISP officials gear up to take cheek swabs from former criminals who thought they had paid their debt to society.

The state Parole Board had taken 970 cheek swabs at its 13 offices across the state as of last Thursday, according to Executive Director Michael Dowling. Between 11,000 and 12,000 people are in the parole system at any one time, and all eventually will provide the state with their DNA.

As a result, criminal defense attorneys have been fielding telephone calls from former clients worried about the new requirement. The American Civil Liberties Union of New Jersey has received about 30 such calls so far. The original law and amendments in 2000 had focused only on serious crimes, such as sexual assault, murder, manslaughter, endangering and luring a child, and certain aggravated assaults.

Forchion's challenge has gotten some attention. The ACLU last week filed an amicus brief in the case, Forchion v. Intensive Supervision Program, Civ. A. No. 03-5063. "Mr. Forchion is seeking only a preliminary injunction, and it's clearly reasonably likely that he will succeed on his challenge to the DNA law as the Ninth Circuit has already come to that conclusion," says Edward Barocas, the ACLU's legal director.

Barocas refers to the Ninth Circuit's Oct. 2 holding, in UNITES STATES Vs KINCADE, 345 F.3d 1095 , that an armed robber on parole was within his rights to refuse to provide his blood for a DNA database. The case involved the "most fundamental and traditional preserves of individual privacy, the human body," the court wrote. To allow DNA collection would be to allow suspicionless searches prohibited by the Fourth Amendment.

County prosecutors in New Jersey, however, take a jaded view of Forchion's motion. They argue that Forchion should have thought about his privacy rights in 1997, before he was caught delivering a 100-pound bale of marijuana hidden in a cooler to his brother.

"Convicted offenders forfeit certain rights even under the constitution. This may be one of them," says Burlington County Prosecutor Robert Bernardi. "It seems to me that the state has a compelling interest in developing this database which would override the rights of these individual defendants to be able to refuse to give a sample," he says.

As for the Minority Report scenario, "I don't buy that argument," says Andrew Yurick, a former Gloucester County prosecutor and president of the New Jersey Prosecutors' Association. "We're not assuming they'll do anything, we're hoping they don't commit other crimes. But about 80 percent of those who commit crimes commit more than one."

Post-Plea Sampling 'Debatable'

Two prosecutors allow that Forchion's ex post facto argument - that his plea deal is wrongly being altered to include this DNA test - may be his strongest.

"Truthfully, I believe he might have a point on the retroactivity," says Passaic County Prosecutor James Avigliano. "If someone enters a plea agreement and this was not part and parcel, I can understand why they would be upset at this," says Avigliano, though he supports the law.

Bernardi also pauses for thought on that issue. "That's obviously a debatable question," he says. "I'm sure [the Attorney General's Office] had their people research this so it would withstand constitutional scrutiny."

Attorney General Peter Harvey, whose lawyers wrote the law, and Deputy Attorney General Christopher Josephson, who is defending the case, decline to comment.

A similar ex post facto issue in Megan's Law involving community notification of a released offender's presence had its constitutionality tested in a string of state and federal courts, with the most recent ruling coming in August, in A. A. v. New Jersey, 341 F.3d 206. That decision reiterated the U.S. Supreme Court's holding in March, in Smith v. Doe, 538 U.S. 84, that the new, post-conviction burden on the offender was a necessary collateral effect of the state's more compelling need to prevent child abuse.

The meat of the ACLU's interest, however, is to prevent the state from legalizing a generalized search without cause or suspicion. DNA does more than merely definitively identify someone the way fingerprints do; medical history and eugenic information is also potentially divinable from a DNA source.

"What makes this case compelling is that this is bodily fluid," says Lawrence Lustberg, a partner at Newark's Gibbons, Del Deo, Dolan, Griffinger & Vecchione who wrote the brief with Gibbons fellow Gitanjali Gutierrez. "The Supreme Court has long viewed taking bodily pieces, blood or swabs or anything, as among the greatest intrusions that you can imagine, so that's the standard by which we think this could be judged. What could be more personal or private than your DNA?"

Bernardi rejects that. The genetic sample itself isn't being kept, he points out, just the lab information that describes it. "The sample is only being tested for one thing, only a DNA profile. They're not testing for hepatitis B or a drug screen or any type of disease at all. It's strictly DNA. So I don't see that as an invasion of privacy," Bernardi says.

U.S. District Judge Joseph Irenas has yet to set a date for oral arguments.



Jim Edwards
New Jersey Law Journal
11-07-2003