Two men serving prison sentences of more than 30 years were told by the state Appellate Court last week that they must submit DNA samples as required under the law, or face having the samples taken by force.
The ruling is just another example of a growing trend nationally that favors the interests of law enforcement when it comes to the taking of DNA samples from convicted felons or arrestees who have not yet been convicted.
Less than a month ago, the U.S. Supreme Court issued a major ruling concerning DNA evidence. In what was viewed as a major victory for law enforcement personnel, the court ruled 5-4 in Maryland v. King that taking a DNA sample from prisoners accused of serious crimes, but not yet convicted, does not violate the Constitution.
In Connecticut, state law requires all convicted felons to provide DNA samples, but it does not specifically say officials can use force. The state Appellate Court's actions last week upheld rulings by Superior Court Judge Edward J. Mullarkey, who said barring the use of force would undermine the law.
In two separate opinions penned by Judge Douglas S. Lavine, the Appellate Court agreed with Mullarkey that "prohibiting the state from using reasonable force would permit a felon to avoid his or her obligation to provide a DNA sample and thus frustrate the legislature's goal of creating a DNA data bank to assist in future criminal investigations.
"…The only way to ensure that the purpose of the statute is effectuated fully is to permit compulsory taking of DNA samples from each person required to submit one," continued Lavine.
The ruling was issued in the appeals of two inmates, Mark Banks and Roosevelt Drakes, who challenged the state's authority to take their DNA samples by force. Banks, 49, formerly of Bristol, is serving up to 34 years in prison on kidnapping, robbery and other convictions. Drakes, 34, formerly of Hartford, is serving a 30-year sentence for killing a 17-year-old boy near a middle school in Hartford.
Under the state statute, convicted felons can be charged with an additional Class D felony if they decline to provide a DNA sample. Both Banks and Drake said they preferred to face the extra charge rather than give the sample.
The defendants, through their appellate attorney, Senior Assistant Public Defender Lauren Weisfeld, noted that the legislature did not make mention in the statute about taking the sample by force so they argued that the legislators must not have meant for corrections officials to be permitted to do so.
Weisfeld, who was away on vacation last week and unavailable for comment, argued that the statute charging the men with a felony for failing to provide their blood or other biological sample for DNA analysis by force, violated their due process rights and the ex post facto clause of the federal constitution. The latter would be the infliction of punishment for an act that at the time it was committed was not illegal.
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