DNA Samples OK for Nonviolent Felons

SAN FRANCISCO — A federal appeals court ruled Thursday that collecting DNA evidence from nonviolent drug offenders doesn't violate their privacy rights.

The 9th Circuit U.S. Court of Appeals' 2-1 decision came in the case of Thomas Kriesel, a nonviolent drug offender who refused to give a DNA sample after his release from prison.

A 2000 federal law requiring that violent felons give a DNA sample to be kept in a national law enforcement database was extended to all felons in 2004.

Writing for the majority, Judge M. Margaret McKeown said the law was constitutional.

"The government's significant interests in identifying supervised releasees, preventing recidivism, and solving past crimes outweigh the diminished privacy interests" of convicted felons, McKeown wrote.

The dissenter, Judge Betty Fletcher, said the decision was made with "an air of shrugging inevitability."

Fletcher said the decision "approves, without flinching, a statute that effects a far broader and far less justified erosion of the Fourth Amendment."

The judge said if Kriesel's DNA is collected it will be retained in a database, submitting him to "repeated searches of his DNA whenever the government has some minimal investigative interest."

Samples can be removed from a database, but only after the convicted criminal has served an entire sentence and submitted the proper paperwork.

"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," she said.

"But (the law) requires constitutional means, not just effective ends," she added.

Kriesel had pleaded guilty in federal court in Washington state to possession with intent to distribute methamphetamine. He was sentenced to more than two years in prison and three years of supervised release.

In 2005, the probation department asked a lower court to revoke his parole. The district court ruled against Kriesel, but postponed the required DNA sample while his appeal was pending.

Federal prosecutor Mike Dion in Tacoma, Wash., applauded the court's decision, saying that safeguards prevent the misuse of DNA and that the law is fair.

"Someone can be a nonviolent offender today and a violent offender tomorrow," he said.

Kriesel remains on supervised release but is employed and law abiding, according to his public defender Colin Fieman, who said he now plans to ask for a hearing before the full appeals court panel.

"We're just hopeful we'll get further review because it is an important issue," Fieman said.

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