According to a recent report released by Generations Ahead, an aggressive expansion of DNA databases in states across the country now includes the collection of DNA from individuals merely arrested for a felony offense, regardless of whether a trial is held or not, and whether a conviction is obtained or not. California’s Proposition 69 was part of this trend that now includes a total of 25 states. Wondering why we should care? Consider the list of crimes under disorderly conduct that can be subject to felony offenses under aggravated circumstances: public drunkenness, inciting a riot, disturbing the peace, loitering in certain areas, fighting, obstructing traffic, use of extremely obscene language, unreasonable noise, etc.

Now imagine being arrested for one of these as a felony offense and having the charges dropped the next day or the next month. Either way, your DNA is going into a database. If convicted, it will remain there for the remainder of your life. If innocent, you can petition to have it expunged (removed) after three years. In California, the process involves a wrangling of legal paperwork: 1) a certified copy of the court order reversing and dismissing the conviction or case; 2) proof of written notice to the prosecuting attorney and the Department of Justice that expungement has been requested; and 3) a court order verifying that no retrial or appeal of the case is pending.

The report notes that as of September 2011, the FBI has a database of 10 million profiles. In California, the number is 1.3 million and growing fast with the addition of arrestees. “These databases have been a valuable tool in identifying individuals convicted of violent offenses,” says report author Marina Ortega. “But their utility has been greatly undermined by the structural inequities in the criminal justice system that make whole communities, too often people of color, a target.”

“The presumption of innocence is rapidly being transformed into a presumption of future guilt,” says Marina. Newer techniques such as familial searching now include innocent family members of individuals with DNA profiles stored in a database. As the databases grow, these lines will be continually blurred for more and more categories of people, especially vulnerable populations.

Rogue DNA collection programs such as the one in Orange County, “spit and acquit”, offer us a glimpse into just how eager prosecutors are to collect DNA. Under a program started by the local District Attorney and approved unanimously by the board of supervisors, if an individual agrees to provide a DNA sample, the case will be dismissed. This includes people arrested for low-level crimes. The program cannot participate in the federal program, since it does not meet specific standards and since they collect DNA from misdemeanor offenses. That hasn’t stopped them from creating their own database, however. They currently have roughly 40,000 profiles sitting in a criminal database somewhere without any oversight. The rationale: prosecutors claim the need to collect DNA from a huge number of people since research shows that 80 percent of crimes are committed by 8 percent of repeat offenders. (http://voiceofoc.org/county/article_c389f36c-9acc-11df-a306-001cc4c002e0.html

California is also one of a small number of states using a controversial technique called “familial searching” to investigate innocent relatives of individuals with an existing profile in a DNA database. By expanding the search of potential suspects to include families, entire communities of Blacks and Latinos could find themselves under a cloud of suspicion and genetic surveillance for the remainder of their lives, despite having never being arrested for or convicted of any crime. California has instituted strict rules that limit familial testing to major violent crimes where there is serious risk to public safety and prohibits it use unless all other investigative leads have been exhausted. However, even if these rules were codified into law and strengthened, they would still be subject to the interpretation of future administrations and prosecutors.

There is little doubt that DNA plays an important role in the criminal justice system. Many of us are familiar with the heart-wrenching stories of people exonerated through DNA evidence after serving years in prison for crimes they did not commit, or the survivors of sexual assault whose assailants were apprehended thanks to DNA matches. In California, it’s important to note that the Grim Reaper was identified through the use of familial testing. These examples are powerful reminders of the utility of DNA, but they only tell part of the story of DNA in the criminal justice system.

Join Generations Ahead
December 7th Webinar: DNA Dragnets
Highlighting the findings and recommendations of the newly released report,
Forensic DNA Database Expansion:
Growing Racial Inequities, Eroding Civil Liberties and Diminishing Returns

Wednesday, December 7th, 10:00am PST, 1pm EST
RSVP at https://www2.gotomeeting.com/register/605910434

Featuring: Sujatha Jesudason, PhD, Executive Director, Generations Ahead
Michael Risher, ACLU Northern California Staff Attorney
Martina Ortega, Managing Director, Generations Ahead
Tammy Johnson is a racial justice activist, dancer, and writer living in Oakland, California.