CA: Thousands of convicts to avoid DNA samples (ACLU'd by Prop 69 'defect')

Bakersfield Californian ^ | 4/27/05 | David Kravets - AP

[NormsRevenge]

SAN FRANCISCO (AP) - California's ex-cons are not required to submit DNA samples under a sweeping anti-crime measure voters approved last year, as civil rights groups had feared, a federal judge ruled.

U.S. District Judge Fern Smith's decision, released Wednesday in San Francisco, reinforces an opinion by the state attorney general's office that Proposition 69 does not apply to the thousands of convicts who served time for crimes and completed their post-incarceration supervision before voters passed it Nov. 2.

The class-action was brought by the American Civil Liberties Union, which sought to clarify a statewide initiative approved by California voters bolstering California's law requiring arrestees and convicts to submit their DNA to state and federal law enforcement databases.

"It's a very important decision clarifying for thousands of people that they won't be subject to testing under Proposition 69," said Julia Harumi Mass, an ACLU attorney.

Smith did not decide the larger constitutional question of whether it was OK to demand DNA samples from anybody arrested for a felony, even if they aren't charged.

That provision, the most controversial of Proposition 69, requires such sampling beginning Jan. 1, 2009. It also requires those arrested for murder and sex crimes to immediately provide a DNA sample.

Smith did not rule on either of those provisions because the ACLU's named plaintiffs were not subject to those requirements. That means a legal challenge to the most constitutionally suspect part of the law - requiring samples taken from anybody arrested for a felony beginning in 2009 - won't likely be heard until arrestees are forced to surrender DNA.

Attorney General Bill Lockyer's office did not immediately return phone calls seeking comment.

But in court briefs, the office told Smith that the ACLU's lawsuit was based on the "mistaken assumption" that Proposition 69 applied to convicts who had finished their terms and were no longer on parole or probation. The attorney general also said the measure does not apply to people who were arrested and never charged before the initiative passed.

Law enforcement agencies, who would have been overwhelmed by having to track down those former convicts to get their DNA, supported the judge's decision and Lockyer's interpretation.

Still, the measure requires a DNA sample from anyone convicted of any felony in California after the measure was adopted. It also applies retroactively to those who were incarcerated or under court supervision for felonies when the measure passed, even if their crimes did not demand a DNA sample when they were committed.

The measure replaced the law requiring samples for just 36 various sex crimes and crimes of violence.

California Department of Justice officials who collect the samples estimated that it would have to process samples from an additional 440,000 people convicted of felonies that did not require processing before.

As of Dec. 31, about 350,000 samples have been entered into California's database, which has assisted in 1,400 investigations, the Justice Department reported.

The case is Weber v. Lockyer, 04-5161.