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IN THE |
SUPREME COURT OF THE UNITED STATES |
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Plaintiff-Appelle,
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Defendant-Appellant.
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BRIEF AMICUS CURIAE OF THE |
The Criminal Justice Legal Foundation (CJLF) (1) is a nonprofit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the constitutional protections of the accused into balance with the rights of the victims and of society to rapid efficient, and reliable determination of guilt and swift execution of punishment.
The DNA Backlog Elimination Act of 2000 is part of the most important development in forensic sciences since fingerprinting. Like the fingerprinting of arrestees, the DNA typing of the felons subject to the DNA Act will protect the community, aid the felon's rehabilitation, and make the criminal justice system more accurate. Upholding the constitutionality of the Act is consistent with the interests CJLF was formed to protect, and hence CJLF has an interest in the case.
The issues involved are complex. CJLF believes that the authorities and argument in the attached brief, in addition to those submitted by the Government, will be helpful to the court in arriving at the correct decision in this case.
On May 20, 1997, the defendant entered a guilty plea for one count of unarmed bank robbery. United States v. Meier, No. CR 97-72 HA (D. Or. August 6, 2002) in Appellant's Excerpts of Record ("ER") at 102. He was sentenced to 30 months in prison followed by 3 years of supervised release. Id. at 102-103. The defendant was subject to the standard conditions of supervised release, including the condition that he not commit another crime. Id. at 103.
The DNA Analysis Backlog Elimination Act of 2000 (2) ("DNA Act") was enacted on December 21, 2000. The act requires a DNA sample to be collected from individuals convicted of certain federal offenses who are serving time in prison, or on probation, parole, or supervised release. See 42 U.S.C. §§ 14135a(a)(1), (2). Failure to comply with the act is a Class A misdemeanor. Id. § 14135a(a)(5).
On January 29, 2002, the defendant's probation officer informed him that he must submit a blood test at his office for DNA identification. ER at 103-104. The test would be administered by a nurse and take less than 15 minutes. Id. at 104. Failure to comply with the request is a misdemeanor and could lead to the revocation of his supervised release. See ER at 103-104. The defendant objected to this requirement on a variety of grounds, including the Fourth Amendment prohibition against unreasonable searches and seizures. See id. at 104. The District Court denied his motion. Id. at 111. The defendant filed a notice of appeal on August 15, 2002.Id. at 112.
A panel of this Court has previously upheld the DNA testing of convicted criminals. Even if that decision does not control, there is no reason to decide differently in this case. Because there is a special need for identifying convicted criminals through their DNA, the DNA Act withstands Fourth Amendment scrutiny.
Ferguson v. Charleston, 532 U.S. 67 (2001) and Indianapolis v. Edmond, 531 U.S. 32 (2000) do not compel a different result. These cases regulate searches in which the immediate or primary purpose is to discover evidence of wrongdoing from the general public. They are motivated by a need to prevent special needs searches from extending to the public at large and thus turning into a general authority to conduct suspicionless searches.
One way to control special needs searches is by limiting the search to those with a diminished expectation of privacy. This is common to most special needs searches. Persons who voluntarily engage in activity subject to intense government scrutiny, such as a heavily regulated industry, thereby reduce the expectation of privacy that society regards as reasonable. This also applies to individuals such as students who volunteer for sports. It also applies to those who choose to commit a serious crime.
By choosing to commit a crime those subject to the DNA Act have substantially reduced their privacy. Whether the punishment is prison or probation, the convicted criminal is entitled to far less privacy than the average citizen. Therefore, searches of probationers and other denizens of the penal system are not governed by Ferguson and Edmond.
The felons covered by the DNA Act pose a particular danger to society. The best predictor of future criminal conduct is prior criminality, as the ever-high recidivism rates show. The Supreme Court has recognized this danger and has upheld society's special need to supervise probationers through an expansive authority to search that would violate the Fourth Amendment if applied to the general public.
DNA fingerprinting serves the special needs of community safety and rehabilitation. DNA identification, like the fingerprinting of arrestees, protects the community by deterring escape through accurate identification. Its utility in solving past crimes provides a more complete assessment of the danger posed by felons, and prevents the premature release of those posing an excessive risk to public safety. DNA's powerful identification also deters future crimes of those in the database, which protects the community and aids the felons' rehabilitation. Requiring individualized suspicion would hamstring the Act by needlessly limiting the database.
A balancing of the interests of society and the felons shows that the DNA Act is reasonable, and thus satisfies the special needs exception. Balanced against the compelling interest in the most important forensic development since fingerprinting is a privacy interest that approaches zero. The minimal privacy interest of those serving their sentences is further reduced by the pinprick intrusion of DNA testing. It is difficult to imagine a less intrusive act that is still a search. Like fingerprinting, the DNA Act satisfies the Fourth Amendment.
Even if the special needs exception does not apply, then the DNA Act is still valid under the Fourth Amendment totality of the circumstances test. A search that is reasonable after examining the relevant circumstances withstands Fourth Amendment scrutiny without regard to any particular test. The eminently reasonable DNA Act satisfies this standard.
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1. CJLF has written consent of all parties to file this brief.
2. Pub. L. No. 106-546, 114 Stat. 2726 (Dec. 19, 2000).