A civil rights clinic at UC Irvine Law School is seeking a restraining order to stop Orange County prosecutors from coercing low-level defendants into forfeiting their DNA to a one-of-a-kind local database.
A lawsuit filed this week against District Attorney Todd Spitzer alleges the DNA collection from misdemeanor defendants is illegal and, with its $110 collection fee, among other things, disproportionately affects poor people.
“The District Attorney’s Office has created a secretive system of genetic surveillance that was never authorized by state law,” said William C. Thompson of the UCI School of Social Ecology, one of the plaintiffs in the suit. “They sold this system to the county Board of Supervisors by promising it would solve a lot of crime, but that promise has not been kept.
“Instead, we’ve seen a distortion of the justice system in which fundamental fairness and common sense have been sacrificed in an effort to coerce ever more people into giving up their constitutional rights in order to feed an unaccountable, ineffective bureaucracy,” Thompson continued. “It is time to bring this wasteful failure of a policy to an end.”
Program not coercive
Spitzer responded that the Orange County collection program has indeed helped solve crimes, is in no way coercive and has multiple layers of safeguards.
“This program helps to prevent mass incarceration in Orange County while having a significant positive impact on stopping future crime. …The OCDA DNA program protects the public, prevents additional victimization, and provides individuals with a path out of the criminal justice system,” Spitzer said, referring to a 2017 study that found recidivism was reduced by 43% in the year after an individual submits his or her DNA.
“The professor plaintiffs should know better and I had much higher expectations for the University of California, Irvine, and their professors that their legal research would have been thorough and accurate,” he said.
182,000 DNA samples
Spitzer’s office privately owns the DNA of more than 182,000 people, without any controls or outside scrutiny, the lawsuit alleges. As far as crime-fighting, the database has been ineffective, with less than 1% of the samples providing matches in 2018, according to the lawsuit. Prosecutors in a 2019 report, however, credited the database for 8,077 “investigative leads” for local police.
The local DNA database was founded in 2007 by former District Attorney Tony Rackauckas and was heavily criticized by Spitzer while he was campaigning for the office in 2018. Spitzer, however, decided after his election to keep the tax-funded program after learning of its potential as a crime-solving tool.
State and federal law allow DNA to be collected and stored in state and national databases for felony and some misdemeanor offenses, such as arson and some sexual crimes. Orange County collects DNA for misdemeanors, such as driving under the influence, and then offers to drop or drastically reduce the charges in exchange for the defendant’s permission to keep the DNA on file. The practice has become known around the courthouse as “spit and acquit.”
Inadequate controls?
The local DNA is kept privately by the District Attorney’s Office under the premise that small-time offenders may later commit felony offenses as well. The lawsuit said the genetic evidence is stored indefinitely and without adequate controls on its use and dissemination.
Often, the defendants are unable to talk to lawyers before surrendering their rights to withhold their DNA, said the suit. DNA submission is often part of a package deal, and the defendant doesn’t know to decline only that portion of the agreement, the suit added.
Spitzer and the lawsuit’s plaintiffs disagree on whether the Orange County DNA provision is authorized by the state Penal Code and whether it violates both state and U.S. constitutions.
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