By Jennifer Hubbs
Copyright © 2004 by University of the McGeorge School of Law
JD and Governmental Affairs Certificate, McGeorge School of Law, University of the
to be conferred May 2005
B.A., Government, University of Texas at Austin, 2000
Proposition 69 is a direct initiative on the November 2, 2004, general election ballot
entitled the DNA Fingerprint, Unsolved Crime, and Innocence Protection Act (hereinafter
the “Act”). It would amend existing California law with the goal of greatly expanding
the State’s DNA database, thereby enabling law enforcement authorities,
to substantially reduce the number of unsolved crimes; to help stop serial crime by quickly comparing DNA profiles of qualifying persons, and evidence samples with as many investigations and cases as necessary to solve crime and apprehend perpetrators; to exonerate persons wrongly suspected or accused of crime; and to identify human remains.
California Secretary of the State, California Official Voter Information Guide, Analysis of Proposition 69 (2004).
Deoxyribonucleic Acid (hereinafter “DNA”) contains a person’s genetic blue print that is unique to that individual, except in the case of identical twins. Virna M. Manuel, State DNA Data Base and Data Bank Expansion Laws: Is it Time for California to Expand its DNA Data Base Law to Include all Convicted Felons?, 31 W. St. U.L. Rev. 339, 341 (Spring 2004). It is present in every cell, organ, tissue, and fluid of one’s body. Id. at 342. Because of its uniqueness, law enforcement authorities can depend upon it with a great degree of certainty to identify individuals who left cells or fluids behind at a crime scene, who have been missing, or whose remains are otherwise unidentifiable. Id. at 339.
Recognizing its extraordinary benefit to investigators, the federal government and each state have formed numerous databases containing DNA profiles on certain classes of criminals and missing persons, where one can compare the profile to DNA found at crime scenes or elsewhere. Id. at 340. The databases are integrated according to each state’s legislative constraints in the Federal Bureau of Investigation’s (hereinafter “FBI”) Combined DNA Index System (hereinafter “CODIS”), and law enforcement officials nationwide can access DNA profiles in CODIS to aid in their investigations. FBI, CODIS Program, http://www.fbi.gov/hq/ lab/codis/index1.htm (accessed Sept. 10, 2004). In California, certain convicted felons are required to submit samples of their blood, saliva, right thumbprint, and both palm prints (hereinafter collectively called “samples”) which are processed, then posted on the state’s database which is connected to CODIS through the state Department of Justice (hereinafter “DOJ”). Cal. Pen. Code § 295(e) (LEXIS 2004).
Currently, California law requires samples from only certain violent felons. Id. § 296(a)(1). The Act would expand the classes of offenders to include, all felons and some misdemeanor offenders, including juveniles. Text of Proposed Laws: Proposition 69 at § 296. By 2009 (when labs are prepared for the vast increase), the classes would expand even further to consist of samples from every adult, and certain juveniles arrested for any felony or specified misdemeanor, whether charged with a crime or not. Id.
The other notable effect of Proposition 69 would be the funding scheme. During a time of enormous state budget constraints, the Act extracts $7 million from an unspecified legislative source up front, though it repays the loan within four years plus interest. Id. § 76104.6. At the same time, criminal fines will increase by 10%, changing the maximum fine for both littering and false imprisonment, for example, from $1,000 to $1,100. Cal. Pen. Code §§ 374.4 & 237. Still, that particular burden rests on the people guilty of crimes.
Finally, provisions of the Act are self-executing if they conflict with other measures; they are severable; and the Act may be amended. Id. Sec. V.
While proponents focus on the undisputed investigatory gains that would be made with the expanded databank, opponents raise constitutional concerns. While courts have been hesitant to deny law enforcement authorities the invaluable tool of DNA profiling, wading into the waters of forced sampling of individuals not charged with any crime—as the Act demands—may push the outer limit of judicial restraint.
A. The Law in other Jurisdictions
In 1994, Congress granted the FBI the authority to create a national DNA database, called CODIS, for law enforcement use. Pub. L. No. 103-322. DNA profiles are entered at the local level, and are shared nationwide. FBI, CODIS Mission Statement & Background, http://www. fbi/gov/hq/lab/codis/program.htm (accessed Sept. 10, 2004). Mississippi is the only state that does not participate fully in the National DNA Index System, the most inclusive tier of CODIS. Id. at codis/partstates.htm.
As of June 2004, CODIS’ profiles numbered 1,857,093. Id. at codis/clickmap.htm. The theory is that the more offenders (or classes of offenders) that are included, the more “hits” (matching DNA profiles to DNA found at crime scenes) there will be, thus solving more investigations both locally and nationwide. U.S. Department of Justice, Fact Sheet: Legislation to Advance Justice through DNA Technology, http://www.usdoj.gov/ag/dnalegislation.htm (accessed Sept. 10, 2004). Federal law, however, restricts the National DNA Index System to “persons convicted of crimes”—excluding juveniles—a narrower scope than many states’ databases. Id. Even so, CODIS has produced at least 15,100 hits, aiding authorities in more than 18,100 investigations. FBI, codis/success/htm.
The U.S. Department of Justice (hereinafter “USDOJ”) urges all states to collect profiles from every convicted felon, but only 23 states have answered that call. Id. The USDOJ trumpets the example of Virginia, a state whose population is well below that of Los Angeles County, (U.S. Census Bureau, http://quickfacts.census.gov/qfd/states/51000.html [accessed Sept. 10, 2004]), whose database contains 189,000 DNA profiles (compared to California’s 180,517). USDOJ, http://www.usdoj.gov/ag/dnalegislation.htm. If Virginia’s database were limited to only violent offenders (like California’s), 82% of its hits would not have occurred. Id. Law enforcement officials are anxious to expand the classes of individuals whose samples may be taken, due to the fact that in many cases authorities had no original suspect prior to these cases being solved through DNA profiling hits nationwide. Christi Parsons & Steve Mills, State To Collect DNA Data From All New Felons, Chicago Tribune 1 (August 23, 2002).
B. Existing California Law
California’s current law on the collection and maintenance of DNA profiles is embodied in the DNA and Forensic Identification Data Base and Data Bank Act of 1998, which encompasses several sections of the Penal Code. Cal. Pen. Code § 295. The stated purpose of the Act is to assist law enforcement agencies both inside and outside California in: (1) quickly detecting and prosecuting people for sex offenses and certain violent crimes; (2) excluding suspects; and (3) identifying missing and unidentified people. Id. § 295(c). As of June 2004, California’s database contained 180,517 offender profiles, and 5,286 forensic samples that have aided in 785 investigations. FBI, http://www.fbi/gov/hq/lab/codis/ca.htm.
Individuals—including juveniles in some cases—who are found not guilty by reason of insanity, who enter a plea agreement on, or who are convicted of the following crimes or attempted offenses must submit a sample: felonies requiring registration as a sex offender (Cal Pen. Code § 290), murder, voluntary manslaughter, felony spousal abuse, aggravated sexual assault of a child, felony assault or battery, kidnapping, mayhem, torture, burglary, robbery, arson, carjacking, or terrorist activity. Id. § 296(a)(1). People who refuse to provide samples are guilty of a misdemeanor resulting in both a fine of $500 and imprisonment for up to one year, and authorities may employ reasonable force to collect the specimens from an unwilling defendant. Id. § 298.1. Samples are also taken from unidentified deceased persons, and from items left behind by missing persons, but they are destroyed once the person is identified. Id. § 14250.
The DOJ is responsible for the timely collection and maintenance of the samples, and for liaising with the FBI regarding California’s participation in the CODIS database. Id. §§ 295(d), (e). Local law enforcement agencies and correctional facilities are directed to collect the samples with a DOJ-approved collection kit under certain conditions, and they are reimbursed by the DOJ through its DNA Testing Fund, a creature of §290.3. Id. §§ 295(f)(2), (3).
Profiles are exempt from public disclosure laws, and may only be used by law enforcement agencies and defense counsel. Id. §§ 299.5(f). Misuse of the data is punishable by imprisonment and fines, but DOJ employees are immune from civil liability. Id. § 299.5(g). The data may be shared with federal, state, or local law enforcement agencies and DOJ-approved third parties who assist law enforcement authorities. Id. § 299.6.
The court orders expungement of a defendant’s DNA profile from the DOJ database upon reversal of his conviction, a finding that he is innocent or not guilty or his acquittal. Id. § 299(a). Questionably redundant and contradictory, under § 299(b), a former defendant fitting the above conditions can petition for expungement which may be granted in the court’s discretion, though the decision is not open to appeal. The Act is silent on whether the profile would also be expunged from CODIS or any other database with which the DOJ shares information.
Litigation on these laws has been largely procedural—issues like whether certain crimes are included—not substantive. People v. Baylor, 97 Cal. App. 4th 504 (2002) (authorities may use a profile despite its failure to be expunged upon reversal of a prior conviction for an enumerated crime); People v. Walker, 85 Cal. App. 4th 969 (2000) (trial court improperly ordered defendant’s samples because a robbery was not an enumerated crime under § 296 at the time); People v. Brewer, 87 Cal. App. 4th 1298 (2001) (defendant was improperly ordered to submit samples based on a prior conviction of an enumerated offense before enactment of § 296 when he was later arrested for an unenumerated offense). The constitutional parameters for forced DNA sampling will be discussed below.
The latest legislative attempt to alter California law in this field came in 2003, when Senator Jim Brulte, introduced Senate Bill 284 upon instigation by the California District Attorneys Association. 2003-2004 Reg. Sess. (Feb. 19, 2003). The goal was to expand the category of persons required to submit samples to those convicted of “any felony.” Id. When the bill failed to make it out of the Senate Committee on Public Safety due to cost and constitutional concerns, the proponents of Proposition 69 took the necessary steps to put it on the November 2, 2004 ballot. Anna Gorman, Murder Victim’s Relative Seeks Wider State DNA Database, http://www.dnayes.org/pdfs/LA Times_feature_initiative.pdf (accessed Sept. 9, 2004).
C. Effects of Proposition 69
The most salient feature of the Act’s proposed addition to current law is its most substantive—an enormous expansion of the classes of individuals who would be required to submit DNA samples. The Act calls for profiling not just all adult and juvenile felons, but also some non-felon offenders and, by 2009, every person arrested for a felony and some misdemeanors, whether he or she is even charged with any crime. Text of Proposed Laws: Proposition 69 at § 296(a)(2)(C) (emphasis added). Louisiana is the only other state whose database includes DNA profiles for all adults “arrested” for any felony offense. Facts about Prop 69, http://www.protectmydna. com/facts/index.html (accessed Sept. 11, 2004).
The Act applies retroactively so that every person in the state’s custody who fits the description must submit samples. Id. § 296.1(b). Also included is every person who violates his probation or parole for any applicable felony or misdemeanor offense, including those people in California whose sentence was imposed by any other state, federal, or military court. Id. §§ 296.1(a)(3), (4). Furthermore, federal prisoners who committed a qualifying offense in California, who were residents of California at the time of their crimes, who have ever been convicted of a qualifying offense in the state or who will be released in California, must submit to sampling. Id. §§ 296.1(a)(5), (6) (emphasis added). One who knowingly tampers with his specimen or causes the collection to be wrongfully attributed to someone else in order to deceive the government is guilty of a felony, and may be sentenced to two to four years in prison. Id. § 298.2.
Specimens are to be taken as soon as “administratively practicable after arrest” but definitely before the arrestee is released for any reason. Id. § 296.1(1)(A). If the sample is not taken, the court will order the arrestee to report to a government facility to provide his specimens within five calendar days. Id. § 296.1(1)(B). Profiles are compared to the forensic identification profiles in the database. Id. § 297(b). No civil or criminal action exists for an official’s mistaken inclusion of a person’s profile in the database. Id. § 298(c). The DOJ is charged with certifying laboratories who may participate in the anonymous analysis of specimens. Id. § 297(a).
Law enforcement agencies must notify the DOJ DNA Laboratory within two years of whether the person remains a suspect in any criminal investigation. Id. § 297(b). If one is no longer a suspect, the sample should be removed from the database, though if it is not, use of the data will not adversely affect any future state action against the individual. Id. Local agencies may maintain their own DNA databases that are not governed by the Act. Id. § 297(c). An individual who has been cleared of all applicable charges may petition to have his profile removed from the state database. Id. § 299.
The Act creates the DNA Identification Fund to pay for the additional DNA profiles. Id. § 76104.6. The initial means of payment for the Act would come from a $7 million loan from the Legislature, source unspecified, to be repaid with interest within four years. Id. Additional funds would be generated through a 10% increase of every fine, penalty, or forfeiture for every state crime except parking offenses. Id. The money would be deposited with the county treasurer who would keep the increase separate from other county funds. Id. At the end of each quarter calendar year, each county treasurer would transmit parts of these funds plus interest into the DNA Identification Fund. Id. For the first two years, the Fund would receive 70% of the county money; in the third year, 50%; and thereafter, 25%. Id. The remaining funds in each county would be used to pay for the collection and processing of samples and administrative costs. Id. The Attorney General would spend the Fund for DNA testing and related expenditures, and the Act is contingent on the availability of funds for each fiscal year. Id.
There is every reason to believe that the larger database would result in more crimes solved. If Virginia’s example is representative, Californians could expect a rise in investigations aided from a pre-Act total of 785 to almost 4,000. After the additional class increase in 2009, the most populous state would have, by far, the most extensive state DNA databank in the country. It would also contain profiles on 160,000 Californians per year who are not guilty of any crime. Laura K. Donohue, Proposition 69 Could Threaten Privacy of DNA, San Francisco Chronicle E3 (August 22, 2004).
Proposition 69 presents no glaring, and certainly no significant, drafting problems. The language adopts the tone and traces the logical flow of the existing legislation, and merely crosses out and inserts clauses within the framework. Since initiative measures should “be interpreted liberally to give full effect to the framers’ objective and the growing needs of the people,” a court would probably not find any actionable fault with Proposition 69. Mills v. County of Trinity, 108 Cal. App. 3d 656, 660 (1980).
Only one clarity issue is evident, and it arises from the existing legislation—§ 299 allows a person whose sample was taken to petition for its removal once he is cleared of all charges. Text of Proposed Laws: Proposition 69. The Act indicates that the “specimen and sample [will be] destroyed and [the] searchable database profile [will be] expunged from the data bank program if” certain conditions apply. Id. § 299(b). This statement apparently refers to the DOJ’s database—the subject of the entire Act—but the Act also refers to both local databases and CODIS, all of which operate under their own rules, separate from the DOJ’s. There is simply no indication of whether expungement from the DOJ’s database would also remove one’s profile from every other database connected to the DOJ’s. If it did not, the DOJ would only have to access another database, such as CODIS, to locate and use the expunged profile. Nancy Tran, spokesperson for Proposition 69’s Proponents, maintains that the intent is that samples be expunged from all databases, but considering the complicated web of information-sharing among databases inside California, within the U.S. and internationally, clarification within the text of the Act would be preferable. E-mail to the author, Proposition 69 Article (Sept. 10, 2004) (copy on file with the McGeorge School of Law, University of the Pacific, Capital Center for Government Law and Policy).
The final section of the Act contains four provisions meant to anticipate potential problems: (1) conflicting measures; (2) severability; (3) amendments; and (4) supplantation. Text of Proposed Laws: Proposition 69 at Sec. V. The Conflicting Measures clause would come into effect only if another initiative on the same ballot conflicted with this one, and that is not the case. The Severability clause states that the measure’s provisions are severable so that if one part were held invalid, it would not affect the validity of the other parts. The test on severability is that the invalid part(s) must be “grammatically, functionally, and volitionally separable.” Gerken v. FPPC, 6 Cal. 4th 707, 714 (1993). The standard for the volitional element is whether “it can be said with confidence that the electorate’s attention was sufficiently focused upon the parts to be severed so that it would have separately considered and adopted them in the absence of the invalid portions.” Id. at 714-715. Because the Act is inserted into existing legislation maintaining its grammatical and structural framework, severability is unlikely to cause a problem. Each provision of the Act is set out in a separate section or subsection so that voters can clearly see the distinctions among them. If the arrestee provision is challenged—and it certainly would be—it could be severed from the rest of the measure, likely leaving the “all felony” terms in place. The Amendment clause allows legislative amendments to the Act, consistent with its purpose, by passage in “each house of the Legislature and sign[ature] by the Governor.” Finally, the Supplantation clause gives notice that the Act is not meant to supplant other funds provided to law enforcement authorities. All of these clauses are consistent with California law, and do not present concerns.
A. Federal Constitution
State and federal databank statutes have routinely passed constitutional muster as applied to convicted persons, including juveniles. Attacks based on the First Amendment, Fourth Amendment, Fifth Amendment, Eighth Amendment, prohibition on ex post facto laws, equal protection and due process clauses, and privacy have been repelled in a judicial balancing of the rights of the criminal versus the government’s interest in apprehending repeat offenders. Shaffer v. Saffle, 148 F.3d 1180 (10th Cir. 1998) (statute does not violate free exercise of religion because it is religion-neutral); Bolling v. Romer, 101 F.3d 1336 (10th Cir. 1996) (intrusion of taking samples is minimal, and a state’s interest is compelling as not to be an unreasonable search or seizure; samples are not testimonial in nature so no violation of right against self incrimination); Kruger v. Erickson, 875 F. Supp. 583 (D. Minn. 1995) (drawing prisoner’s blood is not cruel and unusual punishment if performed by a trained technician); Jones v. Murray, 962 F.2d 302 (4th Cir. 1992) (because database statutes are not penal, no violation of prohibition of ex post facto laws); Gaines v. State, 998 P.2d 166 (Nev. 2000) (statute requiring samples from those convicted of enumerated crimes does not violate equal protection because of legitimate state interest in catching repeat and violent offenders); Rise v. State of Or., 59 F.3d 1556 (9th Cir. 1995) (does not violate procedural due process); Padgett v. Ferrero, 294 F. Supp. 1338 (N.D. Ga. 2003) (state’s interest in the database outweighs felon’s right of privacy). In August, the Ninth Circuit sitting en banc upheld the federal databank statute as applied to conditionally-released prisoners on just such a basis. U.S. v. Kincade, ___ F.3d ___ LEXIS 17191 (Aug. 18, 2004).
The search for litigation on laws similar to Proposition 69’s provision adding arrestees to the sampling list was short. Since Louisiana is the only state whose database contains arrestees, other states have not had reason to consider the question. The addition of arrestees to Louisiana’s criminal code was made in June 2003, and there are no accessible cases on the subject yet.
An Indiana appeals court, however, considered and rejected a defendant’s challenge to the government’s use of his sample obtained in an unrelated prior case in which he was cleared of all charges to a subsequent case. Smith v. Indiana, 734 N.E. 2d 706 (Ind. App. 2d Dist. 2000). The trial court ordered Smith’s DNA sample for use in a case of rape for which he was acquitted. Later, the Crime Lab found a match between his sample and that from another rape. Id. at 708. The defendant moved to suppress the DNA evidence on grounds of unreasonable search and seizure under the Fourth Amendment. Id. The court affirmed the trial court’s denial of Smith’s motion, reasoning that the DNA sample was analogous to a fingerprint card that police are not required to destroy when a defendant is cleared. If the sample is lawfully removed from the body, the public’s interest in the value of the tool in succeeding investigations outweighs the defendant’s right to privacy. Id. at 709-710.
In 2002, the California Fourth Appellate District Court considered a case similar to the Indiana case, in which the defendant’s sample was taken pursuant to the California databank law. Baylor, 97 Cal. App. 4th 504. He challenged its subsequent use in a different case because the record should have been expunged after his conviction was overturned by the Ninth Circuit on a writ of habeas corpus. Id. at 506. Baylor claimed that he had a due process property right in his DNA profile, but the court rejected his argument because the sample was obtained lawfully, and the databank law at that time did not contain a provision for expungement of records. Id. at 508-509. The court did not address the outcome under the current law providing for expunged profiles, but it firmly approved the familiar theme that a sample obtained lawfully is fair game for use in the future. Id.
None of the cases considers the constitutional effect, if any, the inclusion of arrestees
would have. An arrestee is not a convicted person, and conviction is the only assumption
the cases on constitutionality make. As the trend identified in the cases cited above
clearly demonstrates, courts have accepted the idea that the public’s interest in
reducing recidivism heavily outweighs the rights of felons who surrendered so many
rights—like the right to vote—
by committing the crime. Cal. Const. art. II, § 4. But the line on arrestees is far fuzzier.
Every year, California arrests 50,000 people for felonies who are never charged. Maya Harris, Proposition OKs Seizing, Storing DNA of Innocent People, http://www.aclunc.org/ opinion/040805-dna.html (accessed Sept. 8, 2004). If not all of that number are completely innocent of any crime, surely many of them are. Even so, the rights of convicted felons are easily taken away, but how do Americans feel about the balance when innocent people like the cousin who was in the wrong place at the wrong time are involved? Perhaps that question is the one which has limited the vast majority of state and federal databases to convicted felons thus far. The inclusion of arrestees is an entirely new issue of first impression, and if the voters approve Proposition 69, it will probably be litigated in California.
B. State Constitution
There are two state constitutional provisions implicated by Proposition 69—the right to privacy and the single subject rule. Neither presents an obstacle to implementation of the Act, but the arrestee provision would eventually generate litigation under the state right to privacy.
First, the state constitution includes a right to privacy that is broader than that of the U.S. Constitution, but the judicial balancing is “precisely the same process that other jurisdictions have applied in upholding the validity of DNA data base and data bank acts.” Alfaro v. Terhune, 98 Cal. App. 4th 492, 508-509 (2002). Since the key element of the California privacy test is this balancing, the additional protections of the state’s privacy right do not alter the results produced under the federal constitution. Id. If the Act wins approval by the voters, however, the arrestee provision will be an issue of first impression in the country, and the California courts will not be able to rely on the guidance of other jurisdictions.
Second, the single subject rule applies to all initiatives. California’s Constitution states that “an initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” Art. II § 8. The rule is meant to “protect against multifaceted measures of undue scope.” Senate of the State of Cal. v. Jones, 21 Cal. 4th 1142, 1158 (1999). The test is whether all of the parts of the initiative are “reasonably germane to each other,” and to the Act’s general purpose. Id. at 1157.
Every section of Proposition 69 relates to the operation, maintenance, or funding of the DNA Database and Data Bank Program. It does not create the program, but only alters its boundaries. The Act does not stray into other issues or interfere with collateral legislative agendas, but focuses instead on whose DNA profiles will be taken, what that person’s rights are concerning his profile, who will collect the samples and how, and who will pay for it. These issues are “reasonably germane to each other” and promote the Act’s general purpose of aiding law enforcement personnel in their work through expansion of this specific tool. The Act does not appear to violate the single subject rule, and it is unlikely that a court would hold otherwise.
The extraordinary value of maintaining DNA profiles to solve crimes and exonerate innocent people cannot be disputed, and the proponents of Proposition 69 reason that expanding the classes of people sampled will increase the number of criminal investigations solved. The DNA Yes! Press Kit says that the governor and “every major statewide law enforcement organization, district attorneys, sheriffs, police chiefs, crime scene investigators, victims’ advocates, Republicans and Democrats” have endorsed the Act. The Press Kit makes several other claims that should be noted as well, though many have been discussed more thoroughly above.
First, databank profiles have exonerated innocent people many times in several states. Californians for the DNA Fingerprint, DNA Yes! on Proposition 69 Press Kit, at USA Today article 1 (unpublished press kit, September 2004) (copy on file with the McGeorge School of Law, University of the Pacific, Capital Center for Government Law and Policy). Second, DNA sampling is similar to a fingerprint sample so that there is no invasion of privacy. Id. at Frequently Asked Questions at 1. The database maintains only a small portion of a person’s DNA—“just enough to get a unique ID”—which also protects privacy. Id. at USA Today article. Third, DNA profiling is “100% accurate.” Id. at Frequently Asked Questions at 2. Fourth, it is more efficient to take DNA samples, along with fingerprints, at the time of arrest rather than awaiting conviction, and people who are not convicted may petition to have their profiles expunged from the database. Id. at 3. Fifth, Virginia’s all-felon database exemplifies the need to expand California’s database—36% of violent crimes solved through Virginia’s database were committed by criminals who had non-violent prior convictions. Id. The implication is that California’s narrower offender classes must be limiting the efficacy of the investigative tool. Proponents minimize the costs by noting that the burden of the increase in criminal fines will rest on the shoulders of people convicted of crimes. Id. at 2. They also assert that the state will actually save money through increasing the efficiency of investigations as “most crimes are committed by repeat offenders.” Id.
Opponents of Proposition 69 focus on the fact that innocent people will be included in the database. Because the existing database already contains profiles on “people convicted of serious and violent felonies, including kidnappers, rapists, murderers, and child molesters,” they believe that there is no reason to expand the database in view of the detriment to privacy rights. Vote No on Proposition 69!, http://www.protectmydna.com/index.html (accessed Sept. 8, 2004). Endorsers of their position include: several civil liberties organizations, ethnic groups, and the League of Women Voters. Id. at endorsements/index.html. Opponents also make claims that should be noted which have not been discussed above.
First, the Act will put your “personal, private information” at risk despite its penalties for wrongful use because government employees are exempt from civil and criminal liability, and the punishment for other misuse is inadequate. Donohue, San Francisco Chronicle E3 (August 22, 2004). They claim that there have already been instances of genetic information being used to deny health insurance based on genetic predictions and secret testing for employees’ pregnancy. Harris, http://www.aclunc.org/opinion/040805-dna.html. Second, DNA testing is not completely infallible. Opponents point to a recent Stanford study showing that even “sophisticated laboratories” have up to 3% error rates in coding genetic material, which would create mistakes on 1,500 profiles each year in California. Donohue, San Francisco Chronicle E3 (August 22, 2004). Mistakes have already been made, they suggest, as in the case of Josiah Sutton who served almost five years in prison for a rape he did not commit because of the crime lab’s mishandling of the evidence. Harris, http://www.aclunc.org/opinion/040805-dna.html. Third, an innocent person must petition the court to be removed from the database, and a court’s decision not to expunge the record cannot be appealed. Vote No on Proposition 69!, http://www.protectmydna.com/index.html. Fourth, it does not make Californians safer to include innocent people’s profiles in the database. Id.
Finally, implementation of the proposition will cost far more than proponents maintain—hundreds of millions of dollars. Opponents calculate the costs differently than proponents, disputing the DOJ’s estimates by analyzing the DNA Laboratory’s operating budget. Id. at facts/LAOcoverletter.pdf. They believe that the DOJ’s estimate is half of the DNA Laboratory’s actual costs. Id. In order for the Lab to handle the vast increase in samples to be analyzed, it anticipates abandoning its 2-year-old facility for a new $80 million lab. Opponents claim that this additional cost was not considered in the DOJ’s estimates but should have been. Id. All told, they project a cost increase once arrestees are added in 2009, to be $41 million to $120 million per year.
Proposition 69’s requirement that all convicted felons submit DNA samples would be in line with the modern trend among the states and the federal government. It is the further step of also including profiles from arrestees that would test the constitutional waters, and the measure would definitely be challenged in due course. Were Proposition 69 to fail, of course, the existing database would continue to operate with the profiles of violent offenders.
Voters must do what the courts do—balance the individual’s rights versus the public’s, and answer the question of where to draw the line. That question will be decided by Californians on November 2, 2004.