Proposition OKs Seizing, Storing DNA of Innocent People

July 28, 2004 by Maya Harris, The Daily Journal

The advertisement is as appealing as it is unlikely: “Imagine a world without crime, where perpetrators are caught before they commit a criminal act. The Department of Pre-Crime: It works!”

In the hit movie “Minority Report,” Tom Cruise is the hard-charging captain of the Department of Pre-Crime who, with the assistance of impressive technology and three prescient humans, is able to identify individuals who will commit crimes before they act. Set fifty years into the future, Cruise is a true-believer in the infallibility of the Department he represents and its latest high-tech crime fighting tools—a true believer, that is, until the system mistakenly pre-identifies Cruise himself as the murderer of a person he does not even know.

The desire to prevent crime before it occurs is certainly understandable: We all want to live in safe communities. And countless studies show that effective prevention and rehabilitation pays far more dividends, both socially and financially, than punitive incarceration. Yet, at least one lesson of “Minority Report” seems to be that we cannot allow our quest for safety to morph into an ends-justifies-any-means approach to law enforcement, particularly when it involves treating innocent people in the same manner as convicted felons (who have at least had their day in court) and the ends achieved make us no safer than before.

Unfortunately, the appealing-yet-unlikely promise of Proposition 69 does just that: Like the Department of Pre-Crime, it claims to make us safer by tagging people before they commit crimes. Prop 69 gives the government the power to take your DNA and put it in a criminal database established for convicted, violent offenders on the chance that you may have committed a crime in the past or, if you commit one in the future, your DNA would make it easier to identify you as the culprit.

But Prop 69 only applies to people who have been convicted of crimes, right? Wrong.

California already requires the collection, testing and storage of DNA from serious and violent felons, including kidnappers, rapists, murderers and child molesters. Prop 69 would expand that government database to anyone arrested for any felony offense—even if you are later proven innocent and never charged with a crime.

In other words, an 18-year old high school senior arrested for shoplifting merchandise from the mall or for writing a bad check—but who is not charged and is released because it turns out the real perpetrator was her friend—would have her DNA seized and stored in a criminal database. Victims of identity theft have been falsely accused, arrested and jailed for crimes they did not commit. They are released when police discover their error—but, with Prop 69, not before their DNA is captured and stored in the government database. Each year in California, more than 50,000 felony arrests do not result in criminal charges.

But if you’re innocent, you can simply get out of the database, right? If only it were that simple.

Once your DNA is in the database, the government has no obligation to remove you. To request removal of your DNA from the database, you must petition the court, the Department of Justice and a prosecutor. But there's no guarantee you will prevail: The court can deny your request and that decision is a nonappealable order that cannot be reviewed by a petition for writ.

You may wonder, “Why would anyone want to keep my DNA once it’s clear that I’m innocent”? That’s the question Shannon Kohler and Blair Shelton asked when their local police departments refused to return their DNA samples.

Both men provided police with their DNA samples to aid criminal investigations; Kohler in connection with the hunt for a serial killer in Louisiana and Shelton to help identify a rapist in Michigan. Both men were cleared. Yet, in both instances, even after the real suspects were in custody, police maintained their right to retain the DNA samples for use in other investigations. Kohler and Shelton were forced to sue; when Shelton prevailed in the lower court, police appealed the decision to the Michigan Supreme Court.

This is particularly alarming when you consider the mistakes that have been made using DNA evidence that have resulted in the incarceration of innocent people.

Take the case of 16-year-old Josiah Sutton. Arrested in 1998 for a rape he didn’t commit, he was sure it was only a matter of time before the mistake would be cleared up. After all, he didn’t really fit the suspect description. The suspect was 5-feet 7-inches tall and approximately 135 pounds; Josiah stood 6-feet tall, weighing in at 200 pounds. And, “fortunately,” the police had crime scene evidence against which they could test Josiah’s DNA. To Josiah’s shock and disbelief, the DNA test came back a match, the case went to trial and the jury returned a guilty verdict in less than two hours. Serving a 25-year sentence, Josiah’s hope was renewed when his mother saw a story about Houston’s crime lab on the evening news.

An audit revealed widespread problems, from mishandling of evidence to poorly trained technicians. The analyst who testified in Josiah’s case had two weeks training; she misinterpreted his test results and overstated her findings. Josiah persuaded authorities to retest his DNA and was finally released last year—after spending nearly five years in prison.

Josiah is not alone. Timothy Durham spent nearly four years in prison for an Oklahoma rape he didn’t commit, despite testimony from 11 alibi witnesses who placed him in another state at the time of the crime. The prosecution’s silver bullet: a DNA test that was later proven a mistake. In Nevada, a young man was jailed for over a year before it was discovered that the crime lab had switched his DNA with that of the true rapist.

DNA testing is not infallible—mistakes can and do happen and innocent people pay the price.

There's also the very real possibility that your DNA and the sensitive, confidential information it contains could be shared without your permission or used for purposes beyond the initiative’s scope.

More than just a “fingerprint,” which merely provides a method of identification, your DNA exposes the most intimate details about you and your family. DNA reveals your entire genetic makeup, ancestry, susceptibility to or carrier status for certain diseases. Studies claim to link genetic markers with Alzheimer’s, schizophrenia, drug use, and sexual orientation.

Although proponents argue they will only use your DNA sample for purposes of identification, the fact remains that the sample the government collects and stores could also be analyzed to reveal personal, private medical information. The government has no obligation to destroy the original DNA sample after extracting the information needed to create an identification profile.

Your DNA information in the wrong hands can have devastating consequences. Experts have documented hundreds of cases where healthy people have lost their job or health insurance based on genetic predictions. Lawrence Berkeley Laboratories was sued for allegedly secretly testing African-American and female employees in the 1990’s for sickle-cell genes, pregnancy and syphilis. Gene Trust, a company that collected DNA samples, attempted to sell its DNA databank during bankruptcy proceedings.

And law enforcement is not immune to misuse of sensitive information. Law enforcement officials have been charged with using confidential government databases to check up on a spouse, sell information to third parties for profit, and for other unauthorized uses.

It is also not hard to imagine a day when California’s DNA database set up for one discrete purpose is “legitimately” used for others. When social security numbers were originally assigned, the government assured us they would only be used to administer a newly-established federal retirement program.

Already, 24 states allow DNA samples to be used for non-law enforcement purposes. Where will California draw the line?

Today, in California, we draw the line between those who have committed crimes and those who have not. Prop 69 will change that. Once you blur the line, it becomes easier to justify an ever-expanding circle of people who must turn over their DNA to the government.

Over the past decade, these databases have grown from convicted sex offenders to serious and violent offenders to all felony offenders. Now, Prop 69 seeks to do what only one other state in the nation—Louisiana—has done: seize and store DNA from anyone arrested for any felony offense, yet never charged with a crime.

Prop 69 is not just a bad movie. It turns the presumption of innocence on its head and will have dangerous consequences for the privacy and security of all Californians.