https://theintercept.com/2021/07/03/orange-county-prosecutors-dna-surveillance/ ORANGE COUNTY PROSECUTORS OPERATE “VAST, SECRETIVE” GENETIC SURVEILLANCE PROGRAM A DA’s office in California offers plea deals and dismissals for misdemeanor offenses — but only if people give up their DNA. She’d been walking her dog without a leash — which is generally against the law in Orange County, where Irvine is located — when she got stopped and cited for the misdemeanor offense. She expected to go to court to pay a fine (a first offense is $100), but when she got there, she found out it wouldn’t be that simple. Instead, she was told that to make the infraction go away, she would have to give up a DNA sample. Tony Rackauckas (GQP), the elected DA at the time, wanted to create his office’s own stash of genetic profiles because of a backlog in DNA testing connected to burglary and other low-level crime scenes, the Voice of OC reported in 2010. But one former prosecutor told Roth that Rackauckas believed most violent crime was committed by locals whose criminal histories contained no more than low-level arrest records. And thus, by amassing a database of genetic material from thousands of people who’d done little if anything that was criminal, his office could combat more serious violence — a sort of “broken windows” theory of crime. The Board of Supervisors unanimously approved the proposal. “Now students are coming in and saying, ‘Well, I went in to pay my $100. I didn’t want to hire a lawyer. I didn’t want to tell my family about this. So I was going to go pay my fine, but they wouldn’t let me,’” Thompson said. Instead, prosecutors were threatening to up a simple pot possession charge to “possession with intent to sell” unless the student agreed to surrender a DNA sample. He says students would ask, “Is this fair, professor, that they’re threatening to prosecute me for a felony, for something that’s not a felony, in order to get me to give my DNA?” Instead, prosecutors would call out a list of names and then ask folks if they wanted to step into the hallway to chat about their cases before being arraigned. “I listened to some of the conversations and wrote down what they said verbatim,” she said. “I found it really disturbing.” “I didn’t see prosecutors trying to clearly be abusive or to take advantage of an unrepresented person,” she said. “I saw prosecutors who were just kind of doing their job without really thinking about it too much, saying, ‘Hey, if you give DNA down the hallway, we’ll give you this plea offer, or we’ll dismiss this case, or we’ll dismiss these counts and not this one.’” Nobody invoked their right to an attorney, Roth said. “Everybody did it. I didn’t see anybody who said, ‘Wait, I’m not giving my DNA, are you crazy?’” Once a defendant agrees to participate in the DNA scheme, they have their cheek swabbed and pay a $110 fee that funds the database; in 2019, Roth estimated that the OCDA’s office has likely collected more than $11 million in fees. Defendants also sign a waiver agreeing not to challenge the constitutionality of the practice and relinquishing the right to ask that their DNA be removed. In Orange County, there is no mechanism for an individual to have their DNA expunged. “We’re already talking about a group of people who aren’t even in here for felonies. We’re talking about misdemeanors,” she said. “Even among those, these are the lowest risk people because that’s your criterion for giving them a deal — that they’re no public safety risk. It’s like, if there’s no public safety risk to them, then they’re probably not going to be going around committing rapes and murders either.” Back when DA Todd Spitzer (GQP) was a member of the county Board of Supervisors, he was a vocal critic of the OCDA’s involvement in DNA collection and testing. Once he was elected district attorney, however, he changed his tune. (Whether Spitzer was actually opposed to the program or his opposition was merely another chapter in an ongoing feud with Tony Rackauckas is up for debate.) Now Spitzer is a perfervid supporter of the county’s genetic surveillance program, which he claims is a public safety success story. In an April opinion piece published in the Orange County Register, Spitzer wrote that his office’s DNA program had “solved crimes that would have never been solved.” The piece was in response to an op-ed Thompson wrote that explained why he and his UC Irvine colleague Cole had signed on as plaintiffs to a civil lawsuit challenging the collection scheme. Spitzer was clearly miffed: “The OCDA DNA collection program is lawful — and effective,” he wrote. “That fact is indisputable.” And the county’s own data suggests that the database isn’t doing what it was designed to do. In 2018, the office reported that just 0.67 percent of the genetic samples matched to DNA collected from crime scenes — and most of those hits were to nonviolent property crimes. In February, the civil lawsuit bearing Thompson’s and Cole’s names was filed in Orange County civil court. It challenged the OCDA’s DNA scheme on constitutional grounds — as a violation of state privacy rights and federal due process and right to legal counsel protections — as well as under a California statute that allows taxpayers to sue to stop government programs that are wasteful or illegal. The suit asked the court to halt the program and return to defendants the fees they paid to have their DNA collected. Since the program’s inception, it has “resulted in very few positive matches to crimes committed, while permanently compromising misdemeanor defendants’ genetic privacy and constitutional rights,” the complaint reads. “Accordingly, the DNA-driven plea deals are unnecessary and provide no public benefit.” Spitzer essentially scoffed at the filing, and in response, the county filed a demurrer, an official objection to the plaintiff’s complaint and the legal equivalent of saying, there’s nothing to see here. “Fundamentally, plaintiffs’ complaint is based on argument, contention and conclusions, and an abstract opposition to the use of DNA in law enforcement, rather than facts,” it read. In late May, Judge William Claster (GQP appointed) issued a ruling siding with the county — at least for now. He gave Thompson and Cole the option to retool and refile the suit, which they did on June 29. Nonetheless, Spitzer was haughty in a press release announcing Claster’s decision, which he used as a vehicle to take direct swipes at Thompson and UC Irvine’s law school. “UCI Law School should issue a public apology for attacking a program that helps to keep our communities safe,” he said. “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.” Indeed, Roth is concerned that the OCDA scheme may be putting more people under the thumb of the criminal legal system with no consequent public safety benefit — and in this case, net-widening genetic surveillance. A typical forensic DNA sample — say, taken from saliva or blood found at a crime scene — does not contain a person’s entire genetic code. Rather, forensic DNA is a collection of genetic markers at certain locations across the genome known as “junk DNA,” areas that do not encode proteins. But a mandatory DNA sample, as with the OCDA database, gives prosecutors access to a person’s entire genomic sequence, which offers a “treasure trove” of information, Roth wrote in her law review article, including “information about one’s familial relationships, genetic traits, propensity for diseases and the like.”