Terese J. Singer

Authorities Try to Coerce Cooperation in DNA Request to Former Prisoners

Under section 165.76 of the Wisconsin statutes, any person in prison on or after January 1, 2000, for a felony committed in Wisconsin must provide a DNA sample to authorities upon his or her incarceration. Those released on parole or placed on probation in another state before January 1, 2000, and currently under parole or probation in Wisconsin must also provide the state with a DNA sample.

The DNA information obtained serves as a biological fingerprint and is stored in a state databank. For authorities, such information can prove invaluable to the pursuit of future offenders and in securing convictions.
When the Wisconsin Department of Corrections recently discovered a gap in its DNA databank, authorities quickly sent out letters to released prisoners demanding they submit DNA specimens. In total, about 700 individuals have received the letter, out of about 12,000 with missing DNA samples.

In the letter, Wisconsin authorities demand a DNA specimen be supplied within 10 days and threaten legal action under section 165.76.

There's a problem, though.

The statute in question only requires individuals currently in prison or on parole to submit DNA samples. It says nothing about former prisoners who are no longer under supervision.

Officials in the Wisconsin Department of Justice are concerned that the letter oversteps its bounds by promising legal action if DNA is not submitted. There are also questions regarding the ability of authorities to use this DNA evidence if it is obtained in an improper manner. <

The letters pose potential problems not only for former offenders, but for law enforcement and citizens as well. For example, if a former offender submits DNA for fear of future prosecution, even though officials lack authority to punish noncompliance, the state may not be able to use the sample to prosecute the individual — even if the sample provided definitive evidence that the former offender committed a serious crime.

Without any basis to demand compliance, these letters from the Department of Corrections amount to little more than bullying. Law enforcement had the authority and the opportunity to take a DNA sample when the individual was in custody or being supervised under parole. If the state made a mistake and did not ask for a DNA sample, does it have the right to demand one after the fact, beyond the period specified in the statute?

For now, that question remains unresolved. Wisconsin Attorney General J.B. Van Hollen recently announced that his office is proposing legislation to address the issue. The legislation would state that offenders have a continuing obligation to provide DNA samples; it would also spell out the process for requesting and submitting DNA. Until the legislation becomes law — if indeed it does become law — former prisoners’ obligation to submit DNA to the state of Wisconsin remains unclear.

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