The Sacramento Bee yesterday published an editorial in which they argued that Prop. 47, which the Bee opposed, in addition to reducing nonviolent offenses such as drug possession and petty theft to misdemeanors also will “make it difficult for police to catch murderers and rapists by helping criminals evade DNA-collection requirements.”
The Bee argued, “It has become clear that, at least in one way, our neighborhoods and schools were made less safe by Proposition 47.”
They argue that, while the voters knew that the initiative would reduce “penalties for a range of nonviolent crimes, reclassifying numerous felonies as misdemeanors,” what the “voters didn’t know (was that) (b)ecause state law requires that only people who are arrested on suspicion of felonies have their DNA collected, thousands of people who commit less serious crimes no longer must provide their DNA. “
They argue, “What that means in hard numbers so far is staggering: More than 250,000 DNA samples collected since November can no longer be analyzed. That number grows daily. Several hundred thousand more that were collected in felony arrests before Proposition 47 passed may be expunged from the database because those crimes have since been reclassified as misdemeanors. We shudder to think of the serious crimes that will go unsolved as a result.”
The editorial also notes that Sacramento DA Anne Marie Schubert, as well as San Bernardino County DA Mike Ramos, are attempting to “fix” what they call a “loophole.” They want to amend the state’s DNA Databank Act.
Writes the Bee, “Schubert wants to include misdemeanors to the DNA collection list: assault and battery, burglary, petty theft with a prior conviction, grand theft, receiving stolen property, identity theft and fraud crimes, forgery, drug offenses, indecent exposure, spousal abuse, annoying children, animal cruelty and lewd conduct.”
“Many rapists, murderers and other serious and violent offenders have been linked to their crimes because of their DNA being entered into the database due to their commission of drug possession, fraud, forgery, and certain theft crime,” Ms. Schubert said in a letter.
In 2004, 62 percent of California voters voted to support the collection of DNA from all felons and that “others arrested for or charged with specified crimes be required with submission to state DNA database.”
What the Bee does not get into is that the state’s policies are quite controversial. In 2009, Prop. 69 went into effect. Under the law, people arrested (not convicted, but arrested) for a felony must provide DNA samples that will be stored in a criminal database accessible to local, state, national, and international law enforcement agencies.
As the ACLU notes, “Instead of being limited to serious, violent offenses, the new requirement even applies to victims of domestic violence who are arrested after defending themselves, people wrongfully arrested due to police misconduct, someone who has written a bad check, and people arrested during political demonstrations.”
They argue, “The law violates constitutional guarantees of privacy and freedom from unreasonable search and seizure, and because of the harmful impact on communities of color.”
As a result, in October 2009 the ACLU filed a lawsuit.
The federal class-action lawsuit, Haskell v. Harris, was filed on behalf of Lily Haskell and three other plaintiffs who were forced to turn over a cheek swab of their genetic blueprint to police. Ms. Haskell was arrested after joining a peace rally in San Francisco. Although she was released without any charges, her DNA is now stored in the national databank.
“I was told that if I didn’t give a DNA sample that I might spend two extra nights in jail. I felt strong-armed. It’s not right to take people’s DNA and put it in a government databank,” said plaintiff Lily Haskell.
“DNA collection at arrest doesn’t help solve crimes and it’s a huge invasion of privacy,” said Michael Risher, staff attorney for the ACLU-NC, in a press release in 2012. “The Constitution protects against this kind of privacy invasion. That’s why we have a 4th Amendment.”
The court is still sorting out the emerging case law. Following the June 2013 US Supreme Court 5-4 decision that a Maryland law was constitutional, the Ninth Circuit has sent the Haskell case back to the district court for it to address the effect of the Supreme Court’s decision in Maryland v. King on the important issues raised by the case.
The ACLU believes that the Maryland law differs greatly from California’s, as “it applies only to people arrested and actually charged with a very small number of extremely serious crimes and allows the police to use DNA samples only after a judge says that they can.”
On the other hand, “California’s law, in contrast, applies to people arrested for crimes such as joyriding, simple drug possession, and shoplifting, and allows the police to collect and use a sample with no judicial or even prosecutorial oversight.”
In the meantime, on December 3, 2014, the California Court of Appeal ruled in the case of People v. Buza that “mandatory DNA collection of arrestees violates the California Constitution. The district court ordered a stay pending final resolution of state law.”
While we wait for the courts to work their way through this emerging law as a result of new technological innovations, the Sacramento Bee editorial is fascinating because Prop. 47 may, in fact, decide a portion of the ACLU’s objections to Prop. 69 in the first place – that mandatory DNA collection should be reserved for serious and violent felonies rather than all felonies.
Prop. 47 deals with that by removing entire classes of crimes from felony status. The Bee completely glosses over this dispute, which is still alive in our courts, and argues for the expansion of DNA collection to a host of misdemeanor crimes – without making the case at all about their necessity.
The Bee also, of course, fails to acknowledge that one of the biggest flaws of Prop. 69 and the current law is that the DNA collection requirement does not get deleted for false accusations or acquittals.
—David M. Greenwald reporting