A California law that went into effect this year intended to enable the state’s DNA "Data Bank Program to become a more effective law enforcement tool," has been challenged in a federal court by the ACLU. The organization claims the law is an unconstitutional violation of privacy. ACLU attorneys argue that the law, Proposition 69, “dramatically expanded the scope of mandatory, suspicionless, and warrantless seizure and testing of DNA in California.”

The law states that DNA will now be collected from all felons and those, including juveniles, who are arrested or charged with certain crimes whether they are convicted or not. Previously the law required DNA samples to be taken only from persons convicted of serious felony offenses.

ACLU attorney Michael Risher, describing his organization's stance on the law, said: “Our position is before you take somebody’s genetic information, you need either a warrant or that person needs to be convicted of a felony with all the procedural protections anybody gets when you are charged and tried with a felony.”

DNA samples that are taken are stored in state and FBI databases and can be compared to evidence from as many cases as necessary. In addition, samples will be subject to “familial searches,” a practice used when authorities cannot find an exact DNA match to a suspect and begin to investigate people with similar DNA.

California Justice Department statistics show that out of 332,000 people arrested in 2007 for felonies, 101,000 individuals were never convicted of any crime but nonetheless still have their DNA on file.

The lawsuit is not challenging the DNA sampling of convicted felons but the ACLU does not agree with “the mass, programmatic DNA testing of hundreds of thousands of persons — persons not convicted or who are otherwise not under supervision of the criminal justice system — as to whom the long-recognized constitutional prerequisites to such searches and seizures have been established.”

There is an enormous backlog of untested samples (at least 350,000) from murder and rape cases in "underfunded and understaffed crime labs" all over the United States. Previous investigations have shown that new federal and state laws requiring DNA samples from people not convicted of, or simply arrested for, nonviolent crimes are the reason the backlog is growing. This large quantity of untested samples delays and sometimes prevents real criminals from being caught and convicted.

The story of Kellie Greene is a prime example. In 1994, Kellie came home one evening to her Orlando, Florida apartment from doing laundry and was attacked by David Shaw, a man with a history of burglary and rape.

Kellie was raped and beaten for nearly an hour. The perpetrator got away, but there was semen found on her leggings. Unfortunately for Kellie, the Orlando crime lab was flooded with samples and they could only afford to test those in cases where the suspects were already identified. 

Finally in 1997, three years after her attack, a detective said they had identified Shaw. Kellie also learned that Shaw had raped another woman only six weeks before her. His DNA had been collected from that crime scene as well, but was shelved for two years due to the overabundance of DNA samples waiting to be tested.

"Had they been able to test the DNA in that earlier case, my rape would have never happened," she said. "If there weren't a backlog, we'd be getting these criminals off the streets."

In a similar case, Debbie Shaw, no relation to the perpetrator in the Kellie Greene case, waited 19 years to find out who her attacker was. In 1986 a man broke into her Dallas home and raped her. The rape kit was shelved away, and by the time it was tested almost two decades later, the time limit for prosecution had passed. The perpetrator, Johnny Patton, would never serve time for raping Shaw.

Currently there are ten other states that have statutes like Proposition 69 in place: Alabama, Alaska, Colorado, Florida, Kansas, Louisiana, North Dakota, South Carolina, South Dakota, and Vermont. If the ACLU is successful, the similar laws in these states could be overturned.

Melissa Burns is a freelance writer living in Appleton, Wisconsin with her family.

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RP said:

	Unbelievable The ACLU filed a lawsuit that makes sense! Of course, they probably filed it to protect their sleaze bag lawyers and the scum they usually defend.
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October 13, 2009
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DDW said:

	I wonder Why there has been no federal edict demanding we all give DNA samples Iwillingly or by force). I'm also completely surprised that DNA samples are not teken by stealth from new born babies or even murdered (aborted) babies. The government at all levels grows more loathsome and detestable with each passing day.
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October 13, 2009
Votes: +3