A push to pass a new version of a state DNA law, which was overturned this week by the state’s highest court, will be hotly contested, supporters and opponents say.
The controversial law, which the Maryland Court of Appeals ruled Tuesday was unconstitutional, was to sunset on Dec. 31, 2013. The sunset provision was necessary for the measure to gain enough votes in the General Assembly in 2008.
Supporters, who already were planning to lobby on behalf of a new version of the law in 2013, say they hope the appeals court ruling ends up before the U.S. Supreme Court.
Under the state law, authorities collected DNA evidence from those arrested. But the Court of Appeals ruled the practice violated the constitutional right against unreasonable searches of the arrestees.
Initially, the DNA was collected from those convicted of sexual assaults. The practice was expanded to those convicted of violent crimes. In 2008, it was expanded to those arrested but not convicted of the crimes, said ACLU of Maryland attorney David Rocah.
“We had fought very hard against this then,” Rocah said. “We said at the time we thought this was unconstitutional.”
The ruling sends the case on which the Court of Appeals ruled back to Wicomico County Circuit Court for a new trial, excluding the DNA evidence collected from a man who was convicted of rape.
“The rapist will go free unless the Supreme Court overturns the Court of Appeals decision,” said Lisae C. Jordan, general counsel for the Maryland Coalition Against Sexual Assault.
“[The 51-year-old victim] went through the difficult exam right after being brutalized and to now be told the prosecutors can’t use the evidence we collected from your body — it offends justice,” Jordan said.
The group, which had been gearing up for a planned effort in the 2013 legislative session to make a DNA collection law permanent, now faces a more difficult task.
“It will be a challenge to have the legislature address this before the sunset because of the Court of Appeals decision,” Jordan said.
Sen. Brian E. Frosh (D-Dist. 16) of Bethesda, chairman of the Senate Judicial Proceedings Committee, agreed. But he added the legislature is likely to tackle the issue in some form because so many oppose the Court of Appeals decision.
“It’s a very interesting, difficult, controversial subject. We want to give law enforcement the tools they need, but obviously, we’re restrained by what the Constitution requires,” Frosh said. “It’s going to be a hot topic in the next session.”
Because the Court of Appeals based its decision on the U.S. Constitution and not the state constitution, it is fitting for the Supreme Court to take up the case, Frosh said.
The DNA testing is no more intrusive than the strip searches for even minor offenses that the Supreme Court has found constitutional, Frosh said.
State police and other law-enforcement agencies are urging the Maryland Attorney General’s Office to appeal the case to the Supreme Court.
In a joint statement issued Wednesday, the Montgomery County State’s Attorney’s Office, the Montgomery County Police Department and the Montgomery County Sheriff’s Office said the appeals court overturned a major tool that has proved useful to law enforcement, with 190 cases solved through DNA samples taken at the time of arrest.
In Montgomery County, 106 cases were solved off DNA matches, including 23 from samples taken at the time of arrest.
The DNA collection practice also has allowed for a wrongly accused person to be exonerated, the statement said.
“These DNA hits enable law enforcement to apprehend repeat offenders that prey upon our citizens, thereby making our communities safer for everyone,” said Montgomery County Police Chief J. Thomas Manger.
But the ACLU’s Rocah said the court’s 5-2 ruling protects the public from government encroachment.
The ACLU and others will challenge efforts to make the DNA collection permanent, Rocah said. Many legislators were skeptical of the state’s effort in 2008, and he thinks the court ruling shows those who opposed the bill then were right in questioning it.
"It makes clear that there are limits on the government's ability to collect DNA from people who are not convicted of a crime," Rocah said.
"I am very glad that the court has finally put up a roadblock to the continued expansion [of DNA collection]."
“It’s one of those tightropes you have to walk,” said Sen. Nancy Jacobs (R-Dist. 34) of Abingdon, who supported the legislation in 2008.
During passage, there was considerable “back and forth,” and she expects intense debate to occur again when the legislature reconsiders the issue.
“Based on what’s going now, we’re going to have to take another look at it to make sure it passes constitutional muster,” Jacobs said. “I thought we had plenty of safeguards in it already. I’m a little surprised [by the court decision].”