Eye on the Courts: Does Prop. 47 Slow DNA Collection of Those Accused of Felonies?

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

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. Tia Will

    “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.”

    “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 said in a press release in 2012.”

    I would love to see some supportive evidence for these two widely divergent views. Both seem likely to be exaggerations. I would place the bar very, very high for DNA retention from those who are only detained or arrested but not charged. This seems to me to be in direct philosophic opposition to the concept that we are innocent until proven guilty. I have no problem with collection and holding to see if conviction occurs, however, I am adamantly opposed to entry into a national data registry based only on the suspicion of one or more officers in the heat of the moment.

    1. Davis Progressive

      tia – sometimes you surprise me.  if we wish to go down this route, then why not just collect everyone’s dna at birth and store the data in case a crime is committed and we need to see who did it?  i’m not advocating that, but the current law is random and capricious.

      1. sisterhood

        “…the current law is random and capricious.”

        Agreed. DP do you happen to know if DNA is collected for dangerous DUI repeat offenders and all crimes involving guns?  Thank you.

        1. Miwok

          I would like to see it for littering. All these smokers better watch out!

          But again California is so off the chain as to pass a law to collect something without knowing how to delete it. They collect DNA with out a conviction and the BEE and ACLU are at odds. Priceless.

      2. Tia Will


        Well, the approach of DNA collection at birth would have some advantages. It might greatly improve crime resolution rates and probably serve as a deterrent to crime since every citizen would know from birth that they could be identified definitively if any DNA was recoverable from a crime scene.

        It would also help in some medical situations. One example is tissue typing for donor purposes rather than having to make public pleas to find appropriate donors. It could also be used to identify individuals who would benefit from gene therapy or certain preventative life saving measures such as early identification of BRCA 1 and 2 mutations which put women at very high risk of breast and/or ovarian cancer which would allow them to make life saving choices before the diseases manifested.

        However, being aware of the pros and cons of a proposal is not the same as advocating for it. I do not believe that our judicial system is currently up to the task of impartially utilizing the data on every citizen in a fair and just manner. Therefore, I could not advocate for a universal collection system even though it might confer some benefits.

  2. Davis Progressive

    i really disappointed in the bee’s editorial.  they argued against prop 47 at the ballot box – lost – and now are attempting to undermine one of the critical things that prop 47 fixes.

    1. Davis Progressive

      the bee also failed to note that there is a loophole here – since they don’t require a conviction, the police could simply arrested the individual for possession for sale, a felony and then reduce the charges.  the problem is prop 69 not prop 47.

  3. Anon

    Okay, let me pose a really basic question.  Why is the collection of DNA evidence of anyone arrested so “dangerous”, if in fact we collect and keep a far greater database of fingerprints for all sorts of reasons that have nothing to do with crime?  And secondly, DNA evidence can eliminate (exculpate) suspects from a crime as well as inculpate a suspect.

    1. Davis Progressive

      for me it just pushes us another step towards government invasion into privacy.  there is nothing more personal and unique than dna.  with dna, at some point exists the possibility of all sorts of unforeseen consequences from cloning to worse.

      1. Tia Will

        DP and Anon

        I agree that there are both real dangers and real advantages to a universal DNA collection system.

        Another advantage would be the elimination of the time, money and efforts that are wasted in our duplicative system of identity verification. This thought was prompted by a conversation between my partner and me over the redundancy of Live Scanning that we have gone through for purposes as varied as employment, professional licensure, a reading volunteer program ( individual school specific), and professional testing. A universal collection system would make this all unnecessary thus avoiding huge cost and inconvenience both within the private and governmental realms.

        1. Anon

          One of the things that has always bothered me is the failure to DNA test in cases where it might exculpate (exonerate) the defendant, where DNA testing is deemed too expensive.  I don’t know if that is still going on, but I suspect it is.  I see DNA collection as nothing more than an identification system much like collecting fingerprints or face recognition, that could provide opportunities to get at the truth in criminal cases.

  4. Tia Will


    I see DNA collection as nothing more than an identification system much like collecting fingerprints or face recognition, that could provide opportunities to get at the truth in criminal cases.”

    And I would agree with you except for one detail. DNA has the potential to be used for much more than an identification system and therein lies the rub. Unlike fingerprints or face recognition, DNA is also a blueprint for the individual and as such has possible uses far beyond those of fingerprints or face recognition which cannot ever be used for purposes other than identification.


    1. Anon

      To Tia: What are these “other uses” beyond what finger printing and face recognition are used for are you referring to? The only thing I can think of is things like diseases you might be prone to, for health insurance purposes, but with the new ACA and the inability to exclude insuring someone for preexisting conditions, I don’t perceive that as a problem. You will have to help me understand here.

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