Every state, the federal government, and the District of Columbia has a law mandating the collection of DNA from individuals convicted of specified crimes. But what should happen when a convicted offender refuses to sit quietly and open his mouth for a cheek swab? The Department of Corrections in Michigan acquiesces until it is time to release the prisoner. Some 6,000 Michigan inmates are believed to have refused to give DNA samples.

Delaying collection means that a prisoner who has committed other crimes for which DNA samples are in the unsolved-crimes part of a DNA database cannot be linked to those crimes, possibly for decades. Of course, the incarcerated prisoner is not in a position to reoffend until his release, but if his DNA profile had been in the offender database, a trawl might well have resolved other crimes. And that could have come as a relief to the victims or even cleared a falsely convicted individual.

What, then, should officials do with recalcitrant prisoners? The Muskegon county prosecutor had an idea. He obtained a search warrant from a magistrate-judge, and state police swooped down on 118 inmates at the Earnest C. Brooks and West Shoreline correctional facilities. The tactic is being touted as a model for the state.

This tactic raises two questions. Was it necessary to get the warrant, and should a warrant have been issued? A warrant is what a prosecutor desiring to obtain a sample from an uncooperative suspect during an ongoing investigation might want. If the suspect resisted the order, the police could use reasonable force to execute the order. This procedure does not make a lot of sense, however, when the convicted offender serving his sentence is not a suspect in any other crime. There is no significant fact-based question (such as probable cause) for the magistrate to decide. If the statute authorizes the use of force, no warrant is necessary. If it precludes the use of force, the warrant is inappropriate.

Yet, a corrections department spokesman said that the department believes a court order is needed to take DNA from reluctant inmates, except just before their release from prison. At the same time, some Michigan prosecutors and jailers seem to assume that the Michigan statute permits forcible collection at any time,

In reality, Michigan’s statutes are far from clear. Section 28.176(4) of the Michigan Compiled Laws reads as follows:

A sample shall be collected by the county sheriff or the investigating law enforcement agency after conviction or a finding of responsibility but before sentencing or disposition as ordered by the court and promptly transmitted to the department of state police. This subsection does not preclude a law enforcement agency or state agency from obtaining a sample at or after sentencing or disposition.

The section is silent as to the use of force. This silence is significant because another section does discuss “refusal to provide samples, penalties; provision of additional samples” — and this other section does not explicitly authorize force at any time. Instead, section 28.173a reads:

(1) An individual required by law to provide samples for DNA identification profiling who refuses to provide or resists providing those samples is guilty of a misdemeanor punishable by imprisonment for not more than 1 year or a fine of not more than $1,000.00, or both. The individual shall be advised that his or her resistance or refusal to provide samples described in this subsection is a misdemeanor.

This subsection requires prison officials to inform the unconsenting inmate that he will be charged with a misdemeanor if he persists. It does not authorize physical force.

Some support for the Department of Corrections’ idea that it can use force if it waits until the time of release comes from another statute governing the Bureau of Pardons and Parole. Section 791.233d(1) provides that

A prisoner shall not be released on parole, placed in a community placement facility of any kind, including a community corrections center or a community residential home, or discharged upon completion of his or her maximum sentence until he or she has provided samples for chemical testing for DNA identification profiling . . . . However, if at the time the prisoner is to be released, placed, or discharged the department of state police already has a sample from the prisoner that meets the requirements of the DNA identification profiling system act, 1990 PA 250, MCL 28.171 to 28.176, the prisoner is not required to provide another sample . . . .

Subsection (3) arguably authorizes forcible collection. It states that “The department may collect a sample under this section regardless of whether the prisoner consents to the collection.” It adds that “The department is not required to give the prisoner an opportunity for a hearing or obtain a court order before collecting the sample.” However, these provisions do not apply to most prisoners. They pertain only to offenders “serving sentences for certain criminal sexual conduct offenses.”

Thus, the Department’s use of force to extract DNA samples, even if waits until the time of release, seem illegal except for sexual offenders. Even reading the statutory authorizations generously, it seems that the statutes do not contemplate the use of force except when (1) the inmate is a sexual offender who (2) “is to be released.”

This contradicts not only the Department’s broader policy, but also the dragnet search warrant in Muskegon. On what basis can a court issue a search warrant as the magistrate in Muskegon did? There is no individualized suspicion that any of these inmates committed the thousands of unsolved crimes from which DNA samples were obtained and processed for inclusion in the database. The Fourth Amendment demands that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The fact that people have been convicted of one crime is not probable cause to believe that they are guilty of all other, unrelated, unsolved crimes.

The solution to Michigan’s problems in collecting DNA samples from prisoners is not dragnet search warrants that lack probable cause or even reasonable suspicion. It is an amendment to section 28.173a of the DNA database statute. Authorizing reasonable force to obtain a DNA sample by scraping cells from the surface of the skin or from the cheek epithelium of a person convicted of a serious criminal offense is within the state’s police power. Unless and until the legislature endorses the widespread and early use of force to secure DNA samples for inclusion in the state database, however, Michigan’s courts, prosecutors, and police should not force feed the state database.

References

John S. Hausman & Heather Lynn Peters, Muskegon’s DNA Collection in State Prisons May Start a Statewide Trend, Prosecutors Say, Muskegon Chronicle, April 2, 2011

United States v. Terry, 702 F.2d 299, 324 (2d Cir. 1983) (force permissible to obtain an arrestee’s fingerprint)