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Government May Retain DNA After Sentence Over

The privacy rights of a convicted robber were not violated when the government demanded a sample of his DNA and then retained it in a federal database after his sentence was completed, a federal court in Washington, D.C., has ruled in a case of first impression.

The court concluded that the DNA Act and similar state statutes that allow the taking of a DNA sample from certain categories of convicted felons do not violate the Fourth Amendment's protection against unreasonable searches and seizures.

In addition, the court rejected the plaintiff's argument that the DNA Act violates the Health Insurance Portability and Accountability Act of 1996 by "disclosing highly sensitive medical and genetic information in which the plaintiff has a strong privacy interest." Because there is no private right of action under HIPAA, the court dismissed this claim as well.

Under the DNA Analysis Backlog Elimination Act of 2000, popularly known as the DNA Act, federal and state law enforcement agents are authorized to take DNA samples from those convicted of certain crimes for inclusion in CODIS, the FBI's Combined DNA Index System.

The District of Columbia has determined that 49 separate offenses qualify for DNA collection and storage in CODIS. Plaintiff Lamar Johnson was convicted of one of those crimes, unarmed robbery, and placed on probation for two years, court records say.

During Johnson's probationary period, D.C. officials demanded that he provide a DNA sample for inclusion in CODIS.

Johnson refused to provide the sample and filed suit in the U.S. District Court for the District of Columbia seeking a temporary restraining order to prevent the defendants from acquiring the sample or revoking his probation.

He challenged the demand for a DNA sample under a variety of laws, including HIPAA and a United Nations treaty called the International Convention on the Elimination of all Forms of Racial Discrimination, as well as under the Fourth and Fifth Amendments.

U.S. District Judge Reggie Walton dismissed all of Johnson's claims.

First, Judge Walton concluded that the statutory requirement that Johnson provide the DNA sample is reasonable under the Fourth Amendment's prohibition against unreasonable searches and seizures. The judge found that the legitimate governmental interests here trumped whatever right to privacy Johnson may have had in his DNA.

During the time he was on probation, Johnson had a diminished expectation of privacy, Judge Walton said. In addition, the DNA Act and the analogous D.C. statute further the compelling governmental interests of deterring future illegal conduct and of bringing closure to crime victims by solving past crimes. This balancing test favors the government, the judge found.

Next, Judge Walton addressed Johnson's claim under the International Convention on the Elimination of all Forms of Racial Discrimination. As with Johnson's HIPAA claim, the court determined that there was no private right of action under the international law. Therefore, this claim was dismissed as well.

Finally, Judge Walton rejected Johnson's contention that, because he is "free" from governmental supervision now that his probation has ended, his DNA sample should be discarded and the analysis of the sample expunged from the CODIS database.

Judge Walton explained that a DNA sample is an identification record, and Johnson's interest in keeping that identity private must be balanced against the public's interest in maintaining the CODIS records.

Law enforcement has a duty to compile and retain records to protect the public safety and welfare, and expunction is appropriate only when an arrest is shown to be illegal, he said. He emphasized that the rate of recidivism among ex-offenders is high.