The plaintiff, who is currently incarcerated, brought an action seeking a declaratory judgment that he is not required, under St. 1997, c. 106, § 8, to submit a deoxyribonucleic acid (DNA) sample for inclusion in the State DNA database created by G. L. c. 22E. A judge in the Superior Court entered a declaratory judgment in favor of the plaintiff. The Commonwealth ap
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Statute 1997, c. 106, codified at G. L. c. 22E, requires an individual convicted of any offense set out in G. L. c. 22E, § 3, to provide a DNA sample to be included in the State’s DNA database. This statutory scheme was recently uphеld in Landry v. Attorney Gen., ante 336 (1999). Section 8 of the statute, which was not codified, states that any person who has been convicted of a crime listed in G. L. c. 22E, § 3, “who is incarcerated ... on the effective date of this act, notwithstanding the date of such conviction, shall submit a DNA sample to the department within 90 days of the effective date of this act or prior to release from custody, whichever first oсcurs.”
The plaintiff was convicted in 1985 of armed robbery, an offense listed in § 3. He completed his sentence and was released in 1993. He was later convicted of another offense not listed in § 3 and remained incarcerated for that offense on the effective date of the statute. The Department of Correction informed the plaintiff that he would be required to submit а DNA sample because he had been previously convicted of a listed offense and was incarcerated on the statute’s effective date. The plaintiff sought a judgment declaring that the statute did not require him to submit the sample, arguing that § 8 applied only to those who were incarcerated for a listed offense on the effective date.
The judge, who did not have the benefit of our opinion in Landry, supra, and therefore рerhaps gave greater weight to the privacy interests implicated here than did we, ruled in favor of the plaintiff, reasoning that reading the “literal terms” of the statute would “produce a number of results and distinctions with no apparent rational basis.” The judge set, out two scenarios, the juxtaposition of which he deemed to produce an irrational result. In the first, an individual convicted of a listed offense in the past, who “had led a blameless life since then but . . . found herself serving a one-week sentence for OUI on the act’s effective date would be required to submit a sample.” In the second hypothetical, although the person just described
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An unambiguous statute must be construed according to its plain language unless such a construction would produce an absurd result. See Church of the Holy Trinity v. United States,
The Superior Court judge thought it irrational that an individual who had been previously convicted of a listed offense, and subsequently imprisoned for a less serious offense on the effective date, be required to submit а sample. We do not share that view. The purposes of the statute, as set out in the statute itself, include “deterring and discovering crimes and recidivistic criminal activity,” and “identifying individuals for, and excluding individuals from, criminal investigation or prosecution.” St. 1997, c. 106, § 1. Moreover, the Legislature specifically found that “the collection and analysis of DNA samples is an integral part of the investigation and prosecution of criminal offenses.” Id. at § 2. The Legislature has evidently determined that the statutory purpose is best served by collecting DNA samples from individuals convicted of the set of of
Ill
On appeal, the plaintiff argues that § 8 violates equal protection
He asserts that the fundamental right to privacy is burdened by the statute, and thus that the statutory classification should be subjected to strict scrutiny. This court’s recent decision in Landry v. Attorney Gen., supra, makes clear, however, that the taking of a bloоd sample from a convicted person for use in the DNA database does not burden a fundamental right. Convicted persons have a diminished expectation of privacy and, moreover, the “obtaining of a very small amount of blood by pin prick” is only a “minimally intrusive” procedure. Id. at 347.
Where, as here, the statute in question neither burdens a fundamental right nor targets a suspect class, the statute “will be upheld as long as it is rationally related to the furtherance of
The plaintiff argues that, even if rational basis scrutiny is applied in this case, § 8 must be judged unconstitutional becausе it has no rational purpose. If the plaintiff’s objection were merely that the Legislature has distinguished between individuals who are incarcerated and those who are not, it would fail because that distinction is made in the interests of practicality, administrative convenience, and lessening the burden on convicted persons, which are permissible and rational purposes under the equal protection clause. See, e.g., Mathews v. Lucas,
The Legislature has wide discretion to create statutory classifications that do not burden a fundamental interest or discriminate against a suspect class. As long as the classification “rationally furthers some legitimate, articulated state purpose,” it will not be overturned. McGinnis v. Royster, supra at 270 (upholding “good time” crеdit statute distinguishing between inmates who had been incarcerated prior to sentencing and those who had not). In the absence of evidence that the Legislature harbored an illegitimate motive or had no rational reason tó draw the distinction as it did, the court must defer to the Legislature’s classification. See Clayborne v. Califano,
This deference is required even where the lines of distinction seem imprecise or improvident and where it appears that, had the line been drawn differently, a more just outcome would have resulted. “In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ ” Dandridge v. Williams,
There must, however, exist some conceivable basis for a statutory classification. It may not be arbitrary or capricious. See McLaughlin v. Florida,
It is clear, for the reasons stated, that this seеmingly arbitrary classification presents a troubling question under the equal protection clause. We need not decide whether the statute violates equal protection, however, because it is clear that construing the statute in a literal manner would produce an absurd result. In order to avoid such an absurd result, and in
The Superior Court judge chose a remedial construction that inserted a further distinction into the statute: that § 8 would apply only to those persons who were incarcerated for listed offenses. Under such a construction, the statutе would not apply to the plaintiff. That construction has the defect of eliminating from the scope of the statute a category of persons the Legislature evidently wished to include and had good reason to include. Thus, such a reading frustrates rather than fulfils the Legislature’s intention. Accordingly, we adopt the construction suggested by the Commonwealth, that § 8 be read to aрply to anyone incarcerated on or after the statute’s effective date. This construction presents a minimal deviation from the literal language of the statute and directly addresses the problem — that the statute’s application is arbitrarily based on incarceration on a particular day.
The Superior Court judge reasoned that this construction was supported by the language in § 8 concerning persons on parole or probation on the effective date.
For these reasons, we construe St. 1997, c. 106, § 8, to apply to individuals incarcerated on or after December 29, 1997. The judgment is vacated. The case is remanded to the Superior Court for the entry of a declaration that St. 1997, c. 106, § 8, applies by its terms to the plaintiff.
So ordered.
Notes
Both parties moved for judgment on the pleadings.
The standard of review for equal protection is identical under the State and Federal Constitutions. See Dickerson v. Attorney Gen.,
The plaintiff argues that, because it is privacy that is at stake, even if the interest affected is not fundamental, the court should review the statute with some form of heightened scrutiny. He аsserts that privacy is not the type of interest normally subjected to rational basis review and that submission of a DNA sample “represents no petty indignity” and permits the government to “conduct intimate inquiries.” We decline to employ such a “rational basis plus” level of scrutiny. See English v. New England Medical Ctr., Inc.,
Even if we were to decide that the statute violates the equal protection clause, this construction would be permissible. When a statute is judged to be unconstitutionally underinclusive, the court may either construe the statute to extend to the class not included or may declare the statute a nullity, see Heckler v. Mathews,
The second sentence of § 8 states: “Any person currently on probation or parole as the result of a conviction or judicial determination resulting from a charge of any of the above listed offenses, notwithstanding of the date of such conviction or judiсial determination, shall submit a DNA sample to the department within 90 days of the effective date of this act.”
This scheme does create the anomaly that persons previously convicted of a listed offense and currently under supervision for an unlisted offense will not be required to produce DNA samples, whereas if incarcerated they would. This anomaly is not of a degree as to invoke equal protection concerns.