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Spit and a Quitter: Confessions of a Co-conspirator


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 advancement.

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 always will.

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 false accusations.

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 children's' privacy.

Why not? What do you have to 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 undermine 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 downside.

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.

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