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November 30, 2007 - San Francisco Chronicle (CA)

Court Affirms Law That All Federal Felons Provide DNA For U.S. Database

By Bob Egelko, Chronicle Staff Writer

Return to Drug War News: Don't Miss Archive

A divided federal appeals court on Thursday upheld a law requiring all convicted federal felons to provide DNA samples for a database available to any police agency in the nation.

The law, passed by Congress in 2004, expanded a previous statute in 2000 that covered only prisoners and parolees who had been convicted of violent crimes in federal court.

In a 2-1 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco said requiring DNA from all felons would aid law enforcement agencies without intruding seriously into the privacy of drug offenders and other nonviolent criminals.

"While DNA evidence is often central to the investigation of violent crimes such as murder or sexual assault ... it can be useful in solving nonviolent crimes as well," said Judge Margaret McKeown in the majority opinion.

The case involved a Washington state man, Thomas Kriesel, who challenged an order to provide a DNA sample after serving 2 1/2 years in federal prison for a methamphetamine conviction.

Although nonviolent criminals are less likely than violent offenders to commit new crimes after their release, they still have significant rates of recidivism, McKeown said, quoting a U.S. Sentencing Commission report.

She also said the privacy rights of a convict who is on supervised release -- the post-imprisonment system for former federal inmates, similar to parole supervision in state laws -- are less than those of noncriminals.

The law protects privacy by making it a crime to knowingly disclose information on the database to anyone outside law enforcement, McKeown said.

McKeown said the 2004 law has been upheld by the seven other federal appeals courts that have considered it, but Judge Betty Fletcher, in a dissenting opinion, said the government has failed to justify the expansion of the law to nonviolent felons.

Drug offenders like Kriesel have relatively low recidivism rates, Fletcher said, and federal officials did not explain how DNA profiling would solve such crimes.

She noted that the government preserves the samples indefinitely, even after a convict's supervised release ends.

"An ever-expanding and unerasable electronic index of DNA profiles, monitored by the government's unblinking digital eye, may no doubt prove to be an effective law-enforcement tool," Fletcher said.

"But our compact with the government requires constitutional means, not just effective ends."

Kriesel's lawyer, Colin Fieman of the federal public defender's office, told the Associated Press he was encouraged by Fletcher's dissent and will ask the full appeals court for a new hearing.

E-mail Bob Egelko at

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