William Thompson is a professor emeritus of criminalology and law at University of California, Irvine. He lives in University Hills, a residential community on campus that allows low-paid academics to live close to work. A neighbor approached him, a member of the university faculty. He had a story to tell. She had been walking her dog unassisted in Orange County. Irvine was nearby when she pulled over and was cited for the misdemeanor. She was expecting to be fined $100 for her first offense, but it wasn't that easy. Instead, she was told she would need to give up a DNA sample to get the infraction dismissed. Thompson was not the first to hear a similar story. Thompson is a long-time DNA expert and has written extensively on issues related to DNA analysis and human biases that can affect forensic science. He was a regular on campus for DNA issues and has heard similar stories from students. Students sometimes found themselves in trouble with the law when they were dealing with minor issues such as pot possession. He said that this kind of stuff is common. He said that most minor cases could be resolved by people simply showing up and pleading guilty. Students are now coming in saying that they went in to pay their $100. I didn't want to hire an attorney. I did not want to tell my family. Thompson stated that I was going to pay my fine but they refused to let me. Instead, the prosecutors threatened to change the simple pot possession charge to possession and intent to sell if the student did not surrender a DNA sample. Students would question him, "Is this fair professor?" He said that they were threatening to charge me with a felony for possessing pot, but not for any other crime, to get my DNA sample.Since long, DNA databases have been maintained by states. They contain profiles of those convicted of felony offenses as well as profiles derived from crime scene evidence. These systems are publically funded and strictly regulated by legislation. They often link up with the Combined DNA Index System (an FBI-run network that covers the entire country) which was created to help solve and deter criminality.It is the only DNA database that has been managed by prosecutors in the country.The Orange County database, however, is not regulated and targets individuals who are charged with the most low-level misdemeanor crimes. It generates DNA samples that cannot be uploaded to CODIS by law. This is the only DNA database that has been established in the United States. Currently, prosecutors predicate many misdemeanor cases on the individual's willingness to share their genetic privacy. The database had nearly 200,000 DNA profiles as of 2019, which is far more than other state-run, legislatively established DNA databases. This scheme is both ethically and legally questionable. Prosecutors have created a vast genetic surveillance program that is not possible without the prosecution of minor petty misdemeanors. Andrea Roth, University of California Berkeley law professor, wrote this 2019 law review article about the OCDA program. Also known locally as spit or acquit, Roth was the first person to dive deep into the secretive database. The existence of the genetic database has led to an ongoing legal battle, which Todd Spitzer, Orange County District Attorney, has declared frivolous. However, it has raised serious questions about whether Orange County prosecutors manipulate defendants who are caught up in the misdemeanor justice process with one goal: expanding their database.The Plaza of the Flags, Orange County Superior Court May 1, 1997. Photo by Don Bartletti/Los Angeles Times via Getty ImagesBroken Windows Biometrics This national network of DNA databases dates back more than 20 years. It was originally created to store crime scene evidence and DNA profiles from individuals convicted for serious felony offenses. CODIS had more than 14,000,000 profiles of offender and 1,000,000 forensic profiles as of April. However, the practice of storing and collecting DNA for criminal legal systems has been controversial. In particular, states have tried to increase the number of people who can be DNA collected.Maryland's DNA collection statute was expanded to allow for the inclusion of those only arrested on felony charges. A suit challenging the law on Fourth Amendment grounds reached the U.S. Supreme Court which upheld it. The court argued that obtaining DNA samples from arrestees was a way to identify a person. It is not a method of identification. This comparison can be made with fingerprints which are routinely taken from detainees by police. The 5-4 majority agreed that DNA analysis is identical to fingerprint databases in this respect. As of 2018, DNA collection was allowed in 31 states according to the National Conference of State Legislatures. As of 2018, 29 states allowed DNA collection from arrestees for certain felony offenses like murder and rape. Eight other states allow DNA collection to be done in connection with serious misdemeanors. These laws allow a person to have their DNA profile removed from the database if they're not charged with a crime. CODIS has more than 4,000,000 profiles of arrestees. California voters passed their own law in this area in 2004. Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, not only increased DNA collection to all arrestees but also significantly expanded the range of crimes that are eligible for DNA collection, moving from a small list of felonies to any felony. It also extended collection to include certain misdemeanors, such as sex crime. Roth stated that Orange County prosecutors were key to the creation of the proposition. She also noted that the provision allowed DNA collection to be a condition of a plea agreement, even for non-criminal offenses that would otherwise be eligible for it. With 62 percent of the votes, Prop 69 was passed despite privacy advocates' concerns. Orange County prosecutors filed an ordinance to the local Board of Supervisors in March 2007 that would have allowed the district attorney office to create its own DNA database. It would be a database that focuses exclusively on misdemeanor crime. The laws that regulate the state system would not apply to the database. These included guidelines for quality control in DNA testing and a requirement that samples be uploaded to CODIS. It would contain samples from misdemeanor plea agreements, as permitted by Prop 69. However, it would also contain samples taken in connection to a prosecutors decision not to dismiss a case. Prosecutors sought to collect and store genetic information from people whose cases would never go to trial and who would not face any criminal sanctions for their alleged crimes. This was not authorized by Prop 69.Photo by Mark Rightmire/Digital First Media/Orange County Register via Getty ImagesTony Rackauckas was the elected DA of the time. He wanted his own stash of genetic profiles to address a backlog of DNA testing related to burglary, Voice of OC reported. Roth was told by a former prosecutor that Rackauckas believed that most violent crime was committed in the locality, where there were no higher-level criminal records. His office can combat serious violence by assembling a genetic material database from thousands of people who have done little, if any, that is criminal. The proposal was unanimously approved by the Board of Supervisors. Spit and Acquit Roth travelled from the Bay Area to Santa Ana in 2016 to see how the DNA collection scheme was unfolding. The sights she saw were troubling. This is the first appearance of a person in court. This is where a person's right to legal representation takes effect. This is a crucial juncture of the criminal legal process. However, it can also be chaotic. Roth was a Washington, D.C. public defender before she became a law professor. She is familiar with the way this all works. She described the Orange County situation as "baffling". Instead, the prosecutors would draw up a list of names before asking people if they would like to go into the hallway to discuss their cases. She said that she listened to some conversations and took down the verbatim notes. She said that I found it disturbing. I did not see any prosecutors trying to abuse or take advantage of unrepresented people. Roth stated that I saw prosecutors who just did their job and didn't think about it much. Everyone did it. It was done by everyone. The defendants sign a waiver agreeing to not challenge the constitutionality and giving up the right to request that their DNA is removed. There is no way for individuals to have their DNA removed in Orange County.People with the lowest risk cannot have their profiles erased. It will remain there for all time.Roth is not happy with the program for this reason. Roth tried to access the database, including demographic information about those whose data is stored there, but was denied by DAs. This whole scheme creates an absurd situation. The scheme creates an absurd situation. While people charged with the most minor crimes have for ever given up their genetic data, those charged with more serious offenses can, under certain circumstances, have their genetic information removed. Roth stated that the lowest-risk group of people cannot have their profiles erased. It will remain there for the remainder of your life. However, if you are arrested for murder and need to provide a sample, or if the case is dropped, your profile can be expunged. Experts raised a similar question: Does this constitute informed consent? Are you able to fully understand the choices that you make? Roth wonders if there are things you don't know about. Roth asks, for instance, how this database could be used in the future or who might have access. It is difficult for individuals to determine if the state case against them is strong because they have made the decision before speaking to an attorney. They might find out that it wasn't. If they ask for an attorney, they would win in court and not have to give up their DNA. Coerced consent is a problem with both the plea-bargaining process and the OCDAs DNA program. Roth believes that the office may be asking defendants to agree to an unconstitutional condition. This is not an actual benefit. Nearly 94 percent of state criminal cases can be resolved through plea agreements. Is it just a waste of time to add the DNA requirement? Roth stated that Roth was giving him something he would have received before. You are withholding it because you want me to accept this other thing. Think about William Thompsons neighbor who was caught walking her dog off the lead. He said she was worried about her DNA being in the dog's mouth, but she knew she couldn't refuse. She would have to hire a lawyer and would have to appear in court multiple times. He said that it would have been very expensive and difficult to fight the charges in court. It would cause a lot of disruption in her life if the woman says No, I don't consent to your DNA. But it is not voluntary. She was not happy with the way her arm was twisted.This is a significant point. The misdemeanor criminal system is far more extensive than the felony. 80 percent of the country's criminal dockets are made up misdemeanor cases. This is how the American criminal system operates most of the day and how most people will come across it, according to Alexandra Natapoff, an Harvard law professor who is an expert in the nation's misdemeanor system. According to records Roth collected in 2017, Orange County charges between 60,000 and 80,000 people each year with misdemeanor offenses. According to Natapoff, the Orange County spit and-acquit program as well as their DNA database reveal some of the greatest risks associated with running our misdemeanor systems the way we do. There is a risk that misdemeanors will be brought against people for reasons other that public safety. Also, there is the possibility that low-income and minority people, as well as people of color, will be indicted for crimes that they are not capable of defending themselves. There is also the possibility that we use the low-level criminal justice system to conduct surveillance and social control work that makes our criminal system more complicated, unfair and unequal. Another concern is that the DA might be motivated to file a lot low-level criminal charges against people knowing they can just make this deal, get their DNA and dump them. Simon Cole, a professor of criminology at UC Irvine, also expressed concern. This could lead to a worrying trend of overcharging vulnerable people. Roth, who is a professor of criminology at UC Irvine, stated that the OCDA targets individuals who are not a risk to public safety. She said that the office wouldn't consider offering DNA-based plea bargains or dismissals for those charged with more serious offenses. This seems to go against the stated goal of the database, which is to solve or deter violent crime. Talking about felonies is already referring to a group of people. She said that we were referring to misdemeanors. These are the people at lowest risk, even among them. This is your criteria for granting them a deal that ensures they're not a public safety risk. They are unlikely to be committing rapes or murders if they pose no risk to the public.Todd Spitzer, Orange County District Attorney, speaks at a Santa Ana meeting on February 21, 2020. Photo by Paul Bersebach/MediaNews Group/Orange County Register via Getty ImagesUncertain Success Story. When DA Todd Spitzer was a member of his county Board of Supervisors, he was a vocal opponent of the OCDAs involvement with DNA collection and testing. After he was elected district lawyer, however, he changed his mind. It is unclear whether Spitzer actually opposed the program, or if his opposition was just another chapter in an ongoing feud between Tony Rackauckas and Spitzer. Spitzer is now a staunch supporter of the county's genetic surveillance program. He claims it is a success story for public safety. Spitzer claimed that his office's DNA program solved crimes that wouldn't have been solved. This was according to an opinion piece that Spitzer published in the Orange County Register in April. It was responding to an op-ed Thompson had written that explained why he and Cole signed on to a civil suit challenging the collection scheme. Spitzer clearly was not happy. The OCDA DNA collection program, he wrote, is legal and effective. Spitzer has recently provided two examples to prove how efficient his database is. In 2009, two brothers were charged with murder in connection to the death of a woman they had strangled and set on fire. The OCDA claims that the crime was connected to the pair based upon a hit between crime scene evidence, DNA and the brother who had provided it to the county previously in connection to a misdemeanor domestic abuse case. Although Spitzer did not name the defendants in his Register piece the case involved Zenaido and Gabino Vadivia-Guzman. The OCDA released a press release at the time that the brothers were arrested, but it did not mention any mention of their capture being based upon a hit to its database. Roth also asked for five success stories from the office when she asked in 2016. The Valdivia Guzman case wasn't among them. It would have been expected that the case would have been included, as it was a 2009 case. Spitzer also highlighted the case of Santos ODell. He was accused in a cold-case kidnapping and rape as well as murder in Arizona. The OCDA stated that ODell provided his DNA to the database following a violation of a protective order which prohibited him from harassing his ex wife. Roth was not given five stories by the OCDA. In a press release in 2011, the OCDA stated that the case was solved by a CODIS hit and not one to the county's database. Roth discovered a similar pattern in the five cases that the OCDA had provided in 2016. Two of the three cases could have been connected to the county database, while two couldn't. One of those cases was solved by a CODIS hit. The fifth involved DNA from the defendants that had never been uploaded into the OCDA database. The county's data also suggests that the database isn't performing as it was intended. The office reported in 2018 that only 0.67 percent of genetic samples were matched to DNA taken from crime scenes. Most of these hits were for nonviolent property crimes. Kimberly Edds was a spokesperson for OCDAs. She declined to answer a number of questions regarding the DNA program due to ongoing litigation. Big Brother to the Extreme A civil lawsuit naming Thompsons and Coles was filed in Orange County civil court on February 2. The OCDA's DNA scheme was challenged on constitutional grounds. It was deemed a violation to state privacy rights, federal due process and legal counsel protections. A California statute allows taxpayers to sue government programs that are illegal or wasteful. The lawsuit asked for a court to stop the program and to return the fees to defendants to have their DNA taken. The complaint states that the program has had very few positive matches to criminal offenses since its inception. However, it permanently compromises misdemeanor defendants' genetic privacy rights and constitutional rights. The DNA-driven plea agreements are therefore unnecessary and do not provide any public benefit, Spitzer stated. In response, the county filed an objection to the plaintiffs' complaint. This is the legal equivalent to saying "There is nothing to see here." The plaintiff's complaint was based on argument and contention, not facts. Late May saw Judge William Claster issue a ruling in favor of the county, at least for now. Thompson and Cole were given the option of retooling and refiling the suit. They did this on June 29. Spitzer, however, was tetchy in a press statement announcing Clasters decision. He used it as a platform to attack Thompson and UC Irvines legal school. He said that UCI Law School should apologize for attacking a program which helps keep our communities safe. UCI Law School should do a better job of educating students to be lawyers than teaching them how to waste public resources attacking lawful programs because they disagree with them.Is that consent? It almost seems like a sting.
