Monday, September 13, 2010
AG Opinion: State May Take DNA From Dead Inmates
By SHERRI M. OKAMOTO, Staff Writer
Biological samples obtained from deceased inmates and parolees can be provided to law enforcement to aid in the investigation of unsolved crimes, Attorney General Jerry Brown said in an opinion made public Friday.
Brown told Sacramento District Attorney Jan Scully that a county coroner’s office may lawfully provide the Department of Justice DNA Laboratory with access to forensic identifying material from qualifying decedents, and that it cannot be subjected to civil liability for doing so without first providing notice to the decedent’s next of kin.
The attorney general explained that the DNA and Forensic Identification Database and Data Bank Act of 1998 requires all state prisoners and parolees “provide buccal swab samples and thumb and palm print impressions and any blood or other specimens required” to law enforcement if convicted of a felony.
While the act specifies that collection is to be made “when it is determined that a qualifying person has not given the required specimens, samples, or print impressions,” Brown reasoned that there could be occasions when this determination is only made after a qualifying inmate or parolee has died.
Even though the act contains no provision addressing deceased qualifying offenders, Brown opined that it was intended to be “comprehensive with respect to the collection of samples from all persons under [the California Department of Corrections and Rehabilitation] jurisdiction who have been convicted of a qualifying offense.”
Brown emphasized that the Constitution permits nonconsensual collection of blood specimens or other biological samples from living inmates and parolees, even though the extraction of such materials is considered a search for purposes of the Fourth Amendment. As persons incarcerated retain no constitutional privacy interest against their correct identification after conviction, Brown posited, such a person does not have a privacy interest in this regard that survives him. The government, however, maintains a compelling interest in ascertaining a felon’s accurate identification even after his death, and in potentially clearing unsolved cases, he said.
The attorney general further noted that the CDCR is required to notify the county coroner’s office of any inmate’s death as well as obtain verification of the death of a parolee under their supervision. Since blood specimens and biological samples are taken by a coroner in the normal course of a postmortem examination, and qualifying offenders would have been required to provide such materials to authorities while alive, the act allows authorities to obtain these materials after the decedent’s demise, Brown concluded.
He added that the act itself constitutes notice that all inmates and parolees convicted of a qualifying offense, without exception, must provide the required specimens and samples for inclusion in law enforcement’s DNA Database, and so “neither the qualifying offender, nor his or her next of kin, nor anyone else, has a right to be personally notified of the Act’s requirements and procedures.”
Brown also said that a decedent’s next of kin, who under California law has no property interest in the contents of the decedent’s body, would not be able to establish a civil cause of action against a coroner for performing a lawful postmortem examination and providing biological materials obtained in the normal course of such an examination to law enforcement in accordance with the act.
The opinion, No. 09-201, was prepared for Brown by Deputy Attorney General Marc J. Nolan.
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