The government, the phantom menace, currently in the form of the well-intentioned
public servant, the Orange County District Attorney, has since 2010 utilized
a program calling for the collection of DNA in exchange for a reduction
or dismissal of criminal charges and in doing so has amassed infinite
amounts of private information about its citizens in unprecedented numbers
– and no one is watching.
In 2007, with financial support ($875,000) from the Orange County Board
of Supervisors, the District Attorney's office launched its DNA database.
This "Spit and Acquit" program has resulted in DNA being collected
from unprosecuted individuals at the staggering rate of 2,000 per month.
At $75 a pop, that's $1.8 million/year in the DA's coffers, according
to the OCDA himself. No reason not to trust him.
No doubt the recent United States Supreme Court decision in Maryland v.
King (569 U. S. ____ (2013)) gave the OCDA increased chutzpah. It held
that persons accused of serious crimes could be subjected to DNA collection
as part of the booking process. But even Maryland v. King could not have
sanctioned the OC practice. There, the Court "reasoned" in a
5-4 decision, that the safeguards, including the required destruction
of the DNA if the arrestee was not convicted, rendered the Maryland practice
reasonable under the Fourth Amendment.
Not so here. Behind the Orange Curtain, there is no oversight, no limitations,
and no protections.
At least the information we are wholesale handing over to the government
is the only "identifying" information. And, you know, propensity
information. And, well, an infinite amount of private information, really.
And it's increasing exponentially with each successive scientific
But at least it's only information about the person spitting, And her
siblings, children, grandchildren, and parents. For now. Thank goodness
we can trust the District Attorney who personally handles the DNA. And
Where have all the flowers gone?
Remember the Fourth Amendment? Just the sound of it makes me nostalgic.
Like the smell of that film coming out of the packaging, the Fourth Amendment
held such promise back in the day.
If the Fourth Amendment were alive in Orange County today, it would not
allow the DNA Collection and Crime Deterrence Program. No Siree, Bob.
The Fourth Amendment would require a warrant for the seizure, supported
by probable cause. Or consent.
Ah, consent. Indeed, the government's official justification for Spit
and Acquit is that it is totally voluntary. "No coercion here, folks.
Keep walkin'." But riddle me this: How many offers for DNA-dismissals
have ever been rejected? Has there been a one? If not, how can it be said
there is any real choice? Of course, there is no free choice. No voluntariness
to the submission of our DNA. It is coerced. In fact, the program victimizes
the most vulnerable segment of the criminal justice system: Victims of
The wrongly accused are coerced into the impossible choice: Stand and fight
– you against the awesome power of the state—at great cost
not only in dollars, but in time and fear for yourself and your loved
ones; or, if you prefer, for the price of $75 you can just let the gloved
hand of the government gently swab away your fear. And your privacy. And
your childrens' privacy.
Why not? What do you have hide?
Questions, anyone? Anyone?
Everyone involved in the system is disincentivized to question it. Criminal
defense lawyers, the very people tasked with protecting the civil liberties
of those accused, are themselves tempted to do the prosecutor's bidding.
Sell the program, grab the dismissal and look like a hero. The courts
love it because it reduces the caseload. And of course, the prosecutor
can't resist our willingness to pay him millions a year to surrender
our innermost secrets.
Why does it matter? It matters because it strips our criminal justice system
--and our system of democracy -- of any previously-secured checks and
balances. The criminal justice system was designed to strike a balance
between the prosecution of criminals and the protection of individual
liberty. An important part of what the criminal justice system did was
to provide a check on executive authority. Spit and Acquit undermines
these ends. Take but one example: The prospect of a bad cop in the community.
The fact that someday that officer would have to swear an oath and testify
publicly to justify his intrusion into the liberty of the accused meant
that the system, at least in theory and occasionally in real life, would
not only catch the corrupt, but would (perhaps more often) deter the corruptible.
This is no longer the case. Police and prosecutors now have every incentive
to err on the side of the government, arresting or charging in any reasonably
close call, resulting in millions in revenue and no discernible down side.
Even reluctant proponents of the program lament that it may be a necessary
evil. To this, we should recall that crime continues to decline. And consider
the price we are paying for the return: By March 2010, with over 25,000
buccal swabs having been collected and analyzed, and over 22,000 samples
uploaded into the District Attorney's DNA database, only three "hits"
(identification of the suspect) resulted. Hasn't been much more successful
since, despite wide publicity of the occasional hit.
In the ever-present struggle between freedom and safety, the criminal justice
system must strike the right balance, lest we become the victims of our
own comprehensive abandonment of privacy. In Orange County, the Fourth
Amendment is violated with every DNA dismissal and defense lawyers are
complicit - myself included.