Academic journal article Journal of Criminal Law and Criminology

Everybody's Got a Price: Why Orange County's Practice of Taking DNA Samples from Misdemeanor Arrestees Is an Excessive Fine

Academic journal article Journal of Criminal Law and Criminology

Everybody's Got a Price: Why Orange County's Practice of Taking DNA Samples from Misdemeanor Arrestees Is an Excessive Fine

Article excerpt


Charlie Wolcott was cited in May 2009 for allegedly trespassing on railroad property in Orange County, California. (1) Mr. Wolcott, a war veteran, had no prior arrests. (2) At his hearing, he hoped to tell the judge that the "No Trespassing" sign was yards away and that he was simply walking through the property as a shortcut. (3) Moments before his hearing, however, a deputy district attorney pulled him into a soundproof room and offered him a deal: the county would drop the charges if Wolcott agreed to submit a DNA sample. (4)

Orange County is the only county in California to maintain its own DNA database aside from the official California state DNA database] This independence allows the county to work outside of the rules in place governing the federal and state DNA databases. (6) Unlike the state and federal DNA databases, which were created by statute and contain various procedural safeguards, the county database was created and is managed by the district attorney's office. (7)

Mr. Wolcott, who admitted to being "freaked out" by the whole experience, is one of approximately 7,500 individuals who agreed to submit a DNA sample to the county in exchange for the county dropping nonviolent misdemeanor charges against them. (8) The county district attorney's office has quadrupled the size of its DNA database to 15,000 samples since January 2009, in large part due to individuals like Wolcott. (9) The county explains the program to participants like Wolcott, but when faced with possible criminal prosecution, it is unclear how informed defendants are when they agree to submit to the county program. (10) The district attorney justifies the program on the grounds that it will deter criminal activity and become a powerful tool for criminal investigations. (11)

Civil libertarians and law professors question the program's fairness. (12) Although the county claims that the program is voluntary for arrestees, one defense attorney suggests that she will advise all of her clients to submit a sample and avoid criminal prosecution. (13) The $75 fee itself may be a particular burden to poor individuals who submit a DNA sample. (14)

Even law enforcement officials are critical of the county's actions. The president of the Association of Orange County Sheriffs questions the deterrent effect of the program, arguing that there is no scientific evidence to suggest that the threat of DNA collection in exchange for release actually deters criminals. (15) Further, he contends that the program has a demoralizing effect on officers in the field who arrest suspected criminals only to see them released without charges. (16)

There are several potential legal challenges to the county's DNA collection program. Federal and state statutes authorize the collection of DNA from certain criminals, most commonly for those convicted of sex crimes and other violent offenses. (17) Several states also authorize the collection of DNA from arrestees in certain circumstances. (18) While statutes authorizing DNA collection from convicts have been universally upheld, courts are split on the constitutional validity of statutes authorizing DNA collection from arrestees. (19) Challengers argue that these statutes authorize improper searches under the Fourth Amendment. (20)

The county's program could also be challenged on Fourteenth Amendment equal protection grounds. (21) One estimate suggests that 90% of urban black males will be arrested at some point in their lives. (22) Since there are necessarily more arrests than convictions, racial disparities in the county's DNA database may be even more severe than in databases currently in use.

The Fourth and Fourteenth Amendments provide interesting bases from which to challenge the county's DNA collection program. A thorough discussion of each potential constitutional challenge to the county's program is beyond the scope of this Comment. …

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