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Is Orange County’s DNA Collection Scheme Really Voluntary?

by Jayson Hawkins

It’s no secret that anyone who commits a serious crime in the U.S. is likely to have their genetic profile catalogued in the FBI’s Combined DNA Index System (“CODIS”). This network has connected state DNA databases for over 20 years and houses upwards of 14 million “offender” profiles from convicted felons and forensic samples from crime scenes. The state databases are subject to strict regulations and intended to give law enforcement a valuable tool for solving crimes.

Since 2007, Orange County, California, has been building an independent database that targets people charged with minor misdemeanors. Unlike the system operated by most states, which allow DNA to be collected upon arrest for specific felonies but must be expunged if the person is not charged, Orange County does not even require that a person be arrested. Many of its samples are acquired through conditional plea bargains: If defendants agree to a cheek swab, shell out $110 to keep the database running, and sign a waiver not to sue the county over the questionable legality of the scheme, the misdemeanor will be dismissed.

Even though no crime has been recorded, the person’s DNA will be permanently recorded in the database. By 2019, Orange County already had more profiles than several states, with the genetic information of almost 200,000 individuals at its disposal. William Thompson, a former law professor at the University of California-Irvine (“UCI”), had heard about the scheme over the years from students caught with small amounts of marijuana or other minor infractions. Whereas the students had formerly been able to pay a $100 fine to settle the matter, once the database was created, they began to be threatened with having their charges enhanced to more serious crimes unless they gave up a sample of their DNA.

One of Thompson’s neighbors, also on the faculty of UCI, was cited for not having her dog on a leash and was shocked when the DA’s office demanded her DNA to resolve the issue. “She would have had to hire a lawyer; she would’ve had to make multiple court appearance. I mean, it would have been quite expensive and kind of arduous,” if she had chosen to fight it, Thompson said. “Large disruption to her life if she says ‘No, I don’t consent to give you my DNA.’ And so she ended up consenting, but it’s not really voluntary. She had her arm twisted, and she’s not happy about it.”

Simon Cole, a criminology professor at UCI, expressed concern that Orange County has been targeting individuals with petty offenses simply to get their genetic information. The program, Cole said, “might give the DA an incentive to file a lot of low level charges against people, knowing that they can then just make this deal, get their DNA, and dump them.” Orange County DA Todd Spitzer has defended the “indisputable” effectiveness and legality of the database, claiming it has “solved crimes that would have never been solved.” Statistics provided by the county, however, show that in 2018 only 0.67% of DNA left at crime scenes had a match in the database, and the majority of those were property crimes where no violence was involved.

Thompson and Cole joined a civil lawsuit filed in February 2021 on the grounds that the database infringes on individuals’ state and federal rights. It requested the DNA collection scheme in Orange County be stopped and that the estimated $11 million in fees that have been levied be returned. Judge William Claster ruled against the plaintiffs in May, but Thompson and Cole made adjustments and refiled it in June. “UCI Law School should issue a public apology for attacking a program that helps keep our communities safe,” DA Spitzer said after Claster’s ruling. “I certainly hope UCI Law School does a better job educating students to become lawyers than it does teaching them wasting public resources to attack lawful programs just because they don’t agree with them.”

While critics have questioned the supposed public benefit of maintaining a criminal database of leashless dog-walkers and pot smokers—the latter of which is now legal in California—other issues have arisen. Foremost on that list is the type of genetic data that Orange County is collecting. For forensic purposes, DNA gathered from crime scenes only contains pieces of an individual’s genome called “junk DNA” that can be used to identify suspects without revealing other personal information. The so-called “voluntary” DNA samples being taken in Orange County, however, offer an array of intimate details such as “familial relationships, genetic traits, propensity for diseases and the like,” noted Andrea Roth, law professor at University of California-Berkeley. “Are there reasons why you wouldn’t want your DNA in the database? Yes,” Roth said. “Are there uses to which it could be put in the future that we can’t even imagine right now? Yes.” 



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