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Law Professor Peeks at Prosecutor’s Veiled DNA Database

by Douglas Ankney

In April 2007, the Orange County (California) District Attorney (“OCDA”) began what has become the largest database of DNA profiles not created by legislative act. Shrouded in secrecy until now, UC Berkeley Law Professor Andrea Roth has pulled back the curtain to reveal a perverse creature.

The procedure for obtaining the DNA profiles, colloquially known as “Spit and Acquit,” begins with the OCDA charging between 60,000 to 80,000 people annually with misdemeanors. Indeed, superior court judges suspect that the OCDA files some of those charges simply to get the DNA with no intention of prosecuting the charges. Nearly all of the defendants are not in custody but are herded into a large public courtroom for arraignment. Without any defense counsel present, the OCDA calls a group of defendants into a hallway and explains that they can have their case dismissed or plead to a lesser charge if they submit a DNA sample. The defendants are told to put a cotton swab in their mouth to collect the sample and pay $110. Around 15,000 people per year accept the deal, and as a result, the OCDA has collected over $11 million since the program began. And the defendants are required to sign waivers permitting the OCDA to keep their profiles forever, foregoing any future legal action or right to expungement.

To date, the OCDA has collected over 176,000 profiles. But since the profiles are collected from people charged with petty crimes, such as walking an unleashed dog, the value of the database is questionable. The database has “matched” a profile to a crime scene just 766 times in more than a decade. And of those “leads,” only five resulted in convictions—convictions that could have been obtained using existing state and federal databases. By contrast, a similar database in Arkansas created by state statute to include DNA profiles of only convicted persons has 166,494 profiles with 5,262 matches.

Unlike the databases created by the federal government and state legislation, the OCDA’s database has almost no oversight. The federal government’s Combined DNA Index System (“CODIS”) holds DNA samples from offenders convicted of serious felonies across the U.S. The DNA profiles submitted from the prisoners and those from crime scenes submitted for comparison must be developed by a state certified laboratory. But the OCDA uses a device known as “Rapid Hit DNA Machines,” making the profiles ineligible for uploading into CODIS. As such, the OCDA’s database is managed by a private firm — Bode Cellmark Forensics (“Bode”) in Virginia. Since DNA is used to determine everything from hereditary diseases to relatives, the potential for abuse of the information is astounding. Partnering with Bode—and the concurrent profits earned — may explain why the OCDA has the unnecessary database. 

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Sources: ocweekly.com, thecrimereport.org, “Spit and Acquit: Prosecutors as Surveillance Entrepreneurs” by Andrea Roth (California Law Review)

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