Gov’s prosecutorial roots surface

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Martinez wants DNA samples for all felony arrests

By Hal Rhodes

During the recent campaign, New Mexicans heard a great deal from their Republican and Democratic gubernatorial candidates, Susana Martinez and Diane Denish, about the proposals they would submit to the 2011 legislature for dealing with the state’s wickedly unbalanced budget.
Those proposals, with variations on themes, boiled down to promises neither to hike taxes nor to cut spending on education and Medicaid. Hardly anyone versed in the realities of New Mexico’s budget woes considered the candidates’ budget balancing notions in the least plausible.  
So upon taking office last week, media types and others wondered if the new governor would reveal the balanced budget alchemy behind her claim that there was a realistic way for the upcoming legislature to match necessary expenditures to anticipated revenues without raising taxes or cutting spending on the two programs, education and Medicaid, that constitute the largest share of that budget.
Unable or unwilling to answer such questions, Gov. Martinez cleverly changed the subject by making it known that she wants the upcoming legislature to broaden the state’s law mandating DNA sampling of adults arrested for violent felony offenses, such as murder, armed robbery, and sex crimes, including rape.
Martinez, however, wants the legislature to authorize DNA sampling of anyone arrested for any and all felony offenses, including non-violent crimes where DNA forensic value is often less.
Clearly some of the new governor’s old prosecutorial predilections accompanied her to the Round House.
And, like it or not, an enlarged DNA sampling program will cost still more scarce revenue.
Not that anyone should doubt that DNA samplings can play a vital role in the criminal justice system. Only last week a Texas man who spent 30 long years behind bars for a crime he didn’t commit walked out of prison exonerated because DNA evidence proved his innocence conclusively.
Nonetheless, the practice of sampling individuals charged but not convicted of felony crimes is unsettling to many who subscribe to the doctrine of innocent until proven guilty.
Which is why in 2000, when Congress first acted on DNA sampling for federal law enforcement purposes, mandatory sampling was legislatively restricted to persons convicted of or on probation or parole for federal felony offenses. Within six years, however, Congress changed that law to embrace persons who had simply been arrested or were facing charges for a felony offense.
There’s a big difference here. To be convicted of a violent felony crime is one thing. To be arrested or charged is something else.
Nevertheless, when New Mexico lawmakers got around to legislating on the matter a few years back they too mandated DNA sampling of persons arrested and/or convicted of such violent felonies as rape, murder and robbery.
Now New Mexico’s new governor wants that mandate broadened to include anyone arrested for any felony. It represents a sweeping change, to say the least, and it raises questions about another traditional safeguard of individual civil liberties in this country, namely the constitutional prohibition against unreasonable searches and seizures.
The question is, does it represent an unreasonable search to require DNA sampling of some pre-trial detainee accused of, say, a non-violent felony of the “white collar crime” where DNA has scant relevance?  
A federal judge in Pennsylvania recently ruled DNA sampling does, indeed, constitute a search and that in some instances such searches do not meet the constitutional test of “reasonable.”
That ruling is on appeal and could end up before the U.S. Supreme Court, leaving some state lawmakers to wonder if it might not be smarter to balance the budget before adding on the costs of an enlarged DNA sampling regimen and wading into the troubled legal waters surrounding the program.

Hal Rhodes
NM News Services