California's proposition 69: A dangerous precedent for criminal DNA databases

Journal of Law, Medicine and Ethics

Volumn 33, Issue 2, 2005, Pages 279-293

  Simoncelli, Tania ^a   Steinhardt, Barry ^b  

^a ACLU

^b ACLU's Technology and Liberty Program   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 23944458889     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2005.tb00494.x     Document Type: Review

References (114)

1. See final vote tally for Proposition 69, available at 〈http://network.ap.org/dynamic/files/elections/2004/general/by_state/ ballot_other/CA.html?SITE=CSPANELN&SECTION=POLITICS〉 (last visited April 12, 2005).
2. See Proposition 69, "DNA Fingerprint, Unsolved Crime and Innocence Protection Act," available at 〈http://www.voterguide.ss.ca.gov/ propositions/prop69text.pdf〉 (last visited April 12, 2005).
3. See also Memorandum from Bruce E. Harrington to Tricia Knight, Initiative Coordinator, Office of the Attorney General, State of California, Regarding: "Request for Title and Summary for Proposed Initiative," (December 5, 2003).
4. J. Wildermuth, "Proposition to Take DNA at Arrest Stirs Privacy Fears," San Francisco Chronicle, June 12, 2004, available at 〈http://sfgate.com/cgi-bin/article.cgi?file=/c/a/2004/06/12/MNGOB7598T1. DTL〉 (last visited May 2, 2005).
5. See final vote tally for Proposition 69, supra note 1.
6. Statement by Dave Paulson, California District Attorney's Association (CDAA), at a Joint Informational Hearing on Proposition 69 before the California State Senate Public Safety and Assembly Public Safety Committees, September 23, 2004.
7. "DNA Fingerprint, Unsolved Crime and Innocence Protection Act," Initiative measure to be submitted directly to voters, Section III, Article 2, Section 296(a)(1), available at 〈http://www.protect-mydna.com/prop69/index. html〉 (last visited April 12, 2005).
8. Id. at Section III, Article 2, Section 296(a)(3).
9. Id. at Section III, Article 2, Section 296.1(a)(3).
10. Id. at Section III, Article 2, Section 296(a)(2)
11. Id. at Section III, Article 5, Section 299.
12. All figures are based on 2002 estimates taken from the Criminal Justice Statistics Center and the Data Analysis Unit of the California Department of Corrections, or the FBI Crime Index Statistics, unless otherwise noted. All statistics were rounded to the nearest 1,000.
13. See Crime in California, 2002: Dispositions, available at 〈http://caag.state.ca.us/cjsc/publications/candd/cd02/dispos.pdf〉 (last visited April 12, 2005), at 68.
14. Under the new law, "...any juvenile adjudicated under Section 602 of the Welfare and Institutions Code for committing any felony offense," must provide a DNA sample. See Cal. Penal Code § 296(a)(1). In 2003, 52,516 juveniles arrested for a felony offense were placed on probation. An additional 414 were convicted as adults. See California Department of Justice, Criminal Justice Statistics Center, "Juvenile Justice in California: 2003," available at 〈http://www.ag.ca.gov/cjsc/publications/misc/jj03/preface. pdf〉 (last visited April 12, 2005).
15. Total 2001 California prison population as reported by the California Department of Corrections (CDC). See "California Prisoners and Parolees, 2002," Table 9.
16. Total number of California Felony Parolees in 2001. See CDC, "California Prisoners and Parolees, 2002," Table 42.
17. See 〈http://justice.hdcdojnet.state.ca.us/cjsc_stats/prof02/00/8. htm〉 (Table 8, "Jail Profile Survey," 2002) (last visited April 12, 2005).
18. See 〈http://justice.hdcdojnet.state.ca.us/cjsc_stats/prof02/00/7. htm〉 ("Total Probation Caseload - Felony Offense," 2002) (last visited April 12, 2005).
19. This number was estimated assuming a 40.3 percent conviction rate from arrested sex offenders. Total number of sex offender arrestees (15,944) was taken from the FBI's "Crime in the United States, 2002," available at 〈http://www.fbi.gov/ucr/cius_02/html/web/arrested/04-table69.html〉 (last visited April 12, 2005).
20. See FBI, "Crime in the United States, 2002," available at 〈http://www.fbi.gov/ucr/cius_02/html/web/arrested/04-table69.html〉 (last visited April 12, 2005).
21. According to the CDC, in 2001, 75,173 people were imprisoned for "crimes against persons." These include homicide, robbery assault and battery, sex offenses, and kidnapping and are comparable to "serious, violent crimes" as defined by California law. See CDC, "California Prisoners and Parolees, 2002," Table 9.
22. About 25 percent of felons paroled in the year 2002 were convicted of serious, violent crimes, and would have been included in the database under previous law, leaving 75 percent of this population eligible as new additions to the database. See CDC, Policy and Evaluation Division, "Recidivism Rates for Felons Paroled in California," March 24, 2003.
23. Members of the county jail population with a past felony conviction qualify for testing under the new law. We estimate this portion of the population roughly at 25 percent.
24. We assume here that those convicted of a "serious, violent felony" are generally not placed on probation in lieu of a prison commitment, and therefore all of the persons in this population represent new additions to the database under Proposition 69.
25. A 40 percent conviction rate was reported for adult felony arrests in 2002. We assume that conviction rates for murder and forcible rate are similar to conviction rates for all felonies. See "Crime in California, 2002: Arrests," at 32;
26. "Crime in California, 2002: Dispositions," at 68.
27. The California Department of Justice DNA Laboratory received for processing: 45,478; 56,682; and 41,475 samples in 2001, 2002, and 2003, respectively, or an average of 47,878 samples per year. Communication with Hallye Jordan, Press Secretary to the California Attorney General, April 9, 2004.
28. As of September 2004, the California DNA database housed 220,000 criminal offender samples, profiles and associated information. Statement by Dave Paulson, California District Attorney's Association (CDAA), at a Joint Informational Hearing on Proposition 69 before the California State Senate Public Safety and Assembly Public Safety Committees, 23 September 2004.
29. See "Crime in California, 2002: Arrests," 32.
30. A 40 percent conviction rate was reported for adult felony arrests in 2002. See "Crime in California, 2002: Arrests," at 32
31. and "Crime in California, 2002: Dispositions," at 68.
32. Letter to Attorney General Lockyer from Elizabeth Hill, LAO and Donna Arduin, Department of Finance, January 20, 2004.
33. Lance Gima, Bureau Chief, California Department of Justice Bureau of Forensic Services, Statement at a Joint Informational Hearing on Proposition 69 before the California State Senate Public Safety and Assembly Public Safety Committees, September 23, 2004.
34. "DNA Fingerprint, Unsolved Crime and Innocence Protection Act," Section III, Article 3, Section 297(b)(1).
35. See National DNA Index System, at 〈www.fbi.gov/hq/lab/codis/ national.htm〉 (last visited April 12, 2005).
36. See S. Axelrad, "Survey of State DNA Database Statutes," (2004), available through 〈www.aslme.org〉.
37. See Va. Code Ann. § 19.2-310.2:1.
38. See Tex. Government Code Ann. § 411.1471.
39. See La. Rev. Stat. Ann. § 15:609.
40. See Cal. Penal Code, § 296(a).
41. Ibid. Id.
42. See 2003 DNA Database Expansion Legislation, prepared by Smith Alling Lane on behalf of Applied Biosystems, (December 2003), available at 〈http://www.dnaresource.com/2003%20DNA%20Expansion%20bills.pdf〉 (last visited April 12, 2005).
43. Ibid. Id.
44. See Pub. Law 108-405, "Justice for All Act of 2004," § 203(a)(1).
45. See Department of Justice, Federal Bureau of Investigation, Crime Statistics in the United States 2002, available at 〈http://www.fbi.gov/ucr/ cius_02/html/web/index.html〉 (last visited April 12, 2005).
46. Ibid. Id.
47. Ibid. Id.
48. Ibid. Id.
49. See 2003 DNA Database Expansion Legislation, supra note 39.
50. See, e.g., D. McCullagh, "What to Do With DNA Data?" Wired News (February 6, 1999), available at 〈http://www.wired.com/news/print/0,1294, 32617,00.html〉 (last visited February 26, 2005).
51. See Michigan Communication on Genetic Privacy & Progress, Final Report & Recommendations (1999).
52. See J. Stanley, The Surveillance-Industrial Complex: How the American Government is Conscripting Businesses and Individuals in the Construction of a Surveillance Society, American Civil Liberties Union (August 2004), available at 〈http://www.aclu.org/Privacy/PrivacyMain.cfm〉 (last visited April 12, 2005).
53. States that do not require expungement of DNA records upon reversals of conviction include Colorado, Florida, Hawaii, Iowa, Kansas, Ohio, Nevada, Mississippi, Tennessee, and Washington. See Axelrad, supra note 33.
54. See id.
55. These states include Alabama, Arkansas, Indiana, Louisiana, Massachusetts, Missouri, New Jersey, North Carolina, Pennsylvania, Rhode Island, South Carolina, Texas, and Wyoming. See id.
56. See Ala. Code § 36-18-31.
57. See "DNAPrint Genomics is Encouraging Law Enforcement Agencies to Include DNAWitness in Their NIJ Grant Proposals," (August 16, 2004), available at 〈http://www.dnaprint.com/2003/pressreleases/pr_08_16_04. htm〉 (last visited April 12, 2005).
58. See "DNAPrint Announces the Release of RETINOME™ for the Forensic Market: Eye Color Prediction from Crime Scene DNA," (August 17, 2004), available at 〈http://www.dnaprint.com/2003/pressreleases/ pr_08_17_04.htm〉 (last visited April 12, 2005).
59. See F. R. Bieber, "Science and Technology of Forensic DNA Profiling: Current Use and Future Directions," in D. Lazer, ed., DNA and the Criminal Justice System: The Technology of Justice (Cambridge, MA: MIT Press, 2004).
60. See also B. Mitchell, "Police Warning to Criminals over DNA Breakthrough," The Scotsman, November 19, 2004.
61. R. Williams, "Making Do with Partial Matches: DNA Intelligence and Criminal Investigations in the United Kingdom," Presentation for DNA Fingerprinting and Civil Liberties: Workshop #2, American Society of Law, Medicine & Ethics, 17-18 September 2004.
62. Some states do allow but do not require the eventual destruction or return of the samples upon reversals of convictions. See, e.g., R.I. Gen Laws § 12-1.5-13; N.Y. Exec. Code § 995-c(9).
63. The U.S. Senate recently approved federal legislation that would prohibit employers from using genetic information in hiring and firing decisions and bar insurers from using such information to deny coverage or raise premiums. See J. Abrams, "Senate OKs ban on genetic discrimination," ABC News (February 17, 2005), available at 〈http://abcnews.go.com/Politics/print9id= 509566〉 (last visited April 12, 2005).
64. See P. Z. Smith, Felony Defendants in Large Urban Counties, 1990: National Pretrial Reporting Program (Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 1993), at 13.
65. See U.S. v. Potts, 347 F.3d 873 (10th Cir. 2003).
66. See Hudson v. Palmer, 468 U.S. 517, 523 (1984).
67. "DNA Fingerprint, Unsolved Crime and Innocence Protection Act," Section III, Article 5 (b)(1).
68. Id. at 5(c)(1).
69. Ibid. Id.
70. Pub. Law 108-405, "Justice for All Act of 2004," § 203(a)(1).
71. Id. at Section III, Article 3 (b)(1).
72. See M. Cho, "Forensic Genetics and Ethical, Legal and Social Implications Beyond the Clinic," Nature Genetics 36 (2004): S8-S12.
73. Shelton v. Ann Arbor Police Department, Vol. 95-1994 NZ (Mich. Cir. Ct. Washtenaw County, 1995).
74. See "Men Targeted by 'DNA Dragnet' Demand Return, Destruction of Samples," The New Standard, November 9, 2004, available at 〈http://newstandardnews.net/content/?action=show_item&itemid= 1211〉 (last visited April 12, 2005).
75. See "Police DNA 'Sweeps' Extremely Unproductive: A National Survey of Police DNA 'Sweeps,'" A report by the Police Professionalism Initiative, Department of Criminal Justice, University of Nebraska at Omaha, Coordinated by Samuel Walker, September 2004. Since this study was published, at least one additional DNA sweep took place in Truro, Massachusetts.
76. See P. Belluck, "To Try to Net Killer, Police Ask a Small Town's Men for DNA," New York Times, January 10, 2005, at available at 〈http://query.nytimes.com/gst/abstract.html?res= F40E13FC345DOC738DDDA80894DD404482&incamp=archives:search〉 (last visited May 2, 2005).
77. See T. Duster, Backdoor to Eugenics, 2d. ed., (New York: Routledge, 2003): at 146-63.
78. See J. G. Miller, "From Social Safety Net to Drag Net: African American Males in the Criminal Justice System," Washington & Lee Law Review 51 (1994): 479-90;
79. S. Nazano, "Odds Grim for Black Men in California," Washington Post, December 12, 1993, at A23.
80. See J. McAlpin, "Documents Reveal Profiling," Associated Press, November 27, 2000;
81. "Turnpike Shooting Settlement," Associated Press, February 2, 2001;
82. M. Jennings, "Verniero Impeachment Decision Due by Collins," Trenton Times, April 25, 2001, at B1.
83. Joint Application for Entry of Consent Decree, United States v. New Jersey (Civil No. 99-5790 (MLC)) (D.N.J. 1999), available at 〈www.usdoj.gov/crt/split/documents/jerseya.htm〉 (last visited April 12, 2005).
84. A. Cannon, "Driving While Black - Motorist Are Fighting Back against Unfair Stops and Searches," U.S. News & World Report, March 19, 1999;
85. K.B. Carter and R. Marisco, "Whitman Fires Chief of State Police" New Jersey Star Ledger, March 1, 1999, at A3.
86. See, e.g., Miller, supra note 73, at 55.
87. M. Higgins, "Looking the Part: With Criminal Profiles Being Used More Widely to Spot Possible Terrorists and Drug Courriers, Claims of Bias Are Also on the Rise," American Bar Association Journal 83 (1997): 48-73;
88. see also T. Duster, "Selective Arrests, an Ever-Expanding DNA Forensic Database, and the Specter of an Early-Twenty-First-Century Equivalent of Phrenology," in D. Lazer, (ed.) DNA and the Criminal Justice System (MIT Press, Cambridge: 2004): 321-322.
89. T. Ginsberg, "Profiling Charged on Nightmare Flight," Philadelphia Inquirer (September 19, 2002), available at 〈www.philly.com/ mld/philly/news/4102992.htm〉 (last visited May 2, 2005);
90. see also C. Eisenberg, "A Troubling Year for Muslims in America," Newsday, September 2, 2002, available at 〈http://www. newsday.com/news/local/newyork/ny-muslims0903.story〉 (last visited May 2, 2005);
91. M. Taylor, "Operation Game Day' Tied to Super Bowl Preparations," San Diego Union-Tribune, January 22, 2003, available at 〈http://www.signonsandiego.com/sports/superbowl/metro/20030122- 9999_1n22ins.html〉 (last visited April 12, 2005).
92. For example, a number of experts have testified that false positives in DNA testing are impossible, and this sentiment has been repeatedly stated in appellate court opinions. See W. Thompson et al., "How the Probability of a False Positive Affects the Value of DNA Evidence," Journal of Forensic Science 48 (2003): 98-106.
93. See R. Khanna, "Suspended Lab Workers Blame HPD for Problems," Houston Chronicle, September 24, 2003.
94. See R. Khanna and S. McVicker, "State Might Overhaul Crime Labs," Houston Chronicle (February 20, 2005), available at 〈http://www.chron.com/cs/CDA/ssistory.mpl/front/3047430〉 (last visited April 12, 2005).
95. See R. Khanna, "Lab Workers' Penalties Reduced," Houston Chronicle, September 25, 2003.
96. See T. Simoncelli, "Retreating Justice: Proposed Expansion of Federal DNA Database Threatens Civil Liberties," GeneWatch 17, no. 2 (2001): 3-6. Available at 〈http://www.gene-watch.org/genewatch.articles/17- 2Simoncelli.html〉 (last visited April 12, 2005).
97. See L. Cadiz, "Md. Case Rattles Confidence in DNA Evidence," Baltimore Sun, November 19, 2004, at B1.
98. See G. Puit, "Man Files Lawsuit in False Imprisonment," Las Vegas Review-Journal, July 6, 2002, available at 〈http://www.reviewjournal. com/lvrj_home/2002/jul-06-Sat-2002/news/19129355.html〉;
99. G. Puit, "Wheels of Justice Turn Slowly," Las Vegas Review-Journal, July 30, 2002, available at 〈http://www.reviewjournal.com/ lvrj_home/2002/jul-06-Sat-2002/news/19129354.html〉 (last visited April 12, 2005).
100. For a detailed discussion on computer-generated graphs in DNA typing, see W. C. Thompson, S. Ford, T. Doom, M. Raymer and D. E. Krane, "Evaluating Forensic DNA evidence: Essential Elements of a Competent Defense Review," Champion (April 2003), available at 〈http://bioforensics.com/articles/ champion1/champion1.html〉 (last visited April 12, 2005).
101. Ibid. Id.
102. See W. C. Thompson, F. Taroni and C.G.G. Aitken, "How the Probability of a False Positive Affects the Value of DNA Evidence," Journal of Forensic Science 48, no. 1 (2003), available at 〈www.astm.org〉 (last visited April 12, 2005).
103. See W. C. Thompson, "Review of DNA evidence in State of Texas v. Josiah Sutton" (District Court of Harris County, Cause No. 800450), February 6, 2003.
104. Personal Communication with Lance Gima, Bureau Chief, California Department of Justice Bureau of Forensic Sciences, March 2003.
105. See National Research Council Report, DNA Technology in Forensic Science (Washington, D.C.: National Academy Press, 1992), available at 〈http://www.nap.edu/books/0309045878/html/index.html〉 (last visited April 12, 2005).
106. Letter to Attorney General Lockyer from Elizabeth Hill, LAO and Donna Arduin, Department of Finance, January 20, 2004.
107. $50 sample cost estimate provided by Lance Gima, Bureau Chief, California Department of Justice, personal communication, March 17, 2004.
108. Joint Hearing on Proposition 69 Before the California State Senate Public Safety and Assembly Public Safety Committees, September 23, 2004.
109. The California DNA Laboratory's operating budget for 2003-04 was $15.1 million. Electronic Communication with Les Kleinberg, California Department of Justice, June 3, 2004. This figure does not include an additional $1.2 million in grant funds.
110. According to Lance Gima, Bureau Chief, CA DOJ, the difference in the cost of testing blood and testing saliva samples is $50; the higher cost of blood testing is due to the cost of drawing blood.
111. See Letter from Carl Matthies California State Senator Kevin Murray, July 26, 2004.
112. The total amount of revenue generated by the state penalty assessment (which levies $10 for every $10 fine) for 2002-03 was $204 million. Existing law provides that of this revenue, 70 percent is transmitted to the state and 30 percent goes to the county. The state portion of the fund is then distributed among a series of specified funds. So even if the full 10 percent surcharge on criminal penalties were collected, this would generate only $15.7 million for the DNA initiative.
113. See Cal.Penal Code Section 1464(d).
114. See Letter from Carl Matthies, supra note 98.