Prop 69: Is it fighting crime or invading privacy?

Prop 69: Is it fighting crime or invading privacy?

by Mariah Wojdacz, December 2009

California voters recently passed Proposition 69; a law that requires the collection of DNA samples from every person arrested for a violent crime. This means that DNA samples will be taken from every adult in California arrested for a felony, which includes trespassing, shoplifting, or even writing a bad check.

Although it will cost taxpayers nearly $20 million a year, crime scene investigators, victims' advocates, district attorneys, defense attorneys, Republicans and Democrats alike say it is worth every penny. And, it will certainly be worth every penny Bruce Harrington spent to get the proposition on ballot if it helps catch his brother's killer.

Harrington is the Southern California lawyer whose brother and sister-in-law were bludgeoned to death in their home in August 1980. DNA evidence has linked this same killer to a series of murders throughout California which took place in the 1970s and '80s. Yet, the police still have not been able to figure out the killer's identity.

The problem (with Proposition 69): the database provides easy access to DNA that may have been mishandled or worse misinterpreted

Harrington's hope is that by expanding the DNA database, the chances of solving rape and murder cases will increase by 85%. "And maybe, maybe, maybe" said Harrington, "there will be a resolution of my brother's killing."

DNA has become "the [fingerprint] of the 21st Century." In fact, DNA evidence has helped to solve multiple cold cases. One example: the murder of 21-year-old Shelley D. Rosted of Kansas City, who was rapped and stabbed to death in front of her 3-year-old stepson in 1984. Now twenty years later, police are bringing her killer to justice. With the help of DNA, police were able to match him to a sample of semen collected during an autopsy of the victim decades earlier.

States across the country have jumped on the DNA bandwagon. In fact, all 50 states and even the federal government now require that DNA be collected from convicted offenders for the purpose of criminal DNA databasing.

But, DNA collection is not without its detractors. Those who oppose Prop 69 argue that it violates privacy by demanding that all people arrested for violent crimes provide samples. This means that people who are not convicted or found guilty and even those who are later found innocent will have had to provide DNA.

The DNA database could spell trouble for the people arrested but never subsequently charged with any crime. In California alone, 50,000 people are arrested who are never subsequently charged. Opponents of the database expansion say it is a violation of those 50,000 innocent people's privacy to have their DNA taken and stored alongside that of convicted killers and rapists. Though Prop 69 does provide procedures to ensure privacy as well as procedures to remove DNA samples from those release, opponents fear that there is no guarantee that these rules will be followed or even enforced.

The problem: the database provides easy access to DNA that may have been mishandled or worse misinterpreted. Opponents point to cases like that of Josiah Sutton, a 16-year-old Texan who was charged with rape in 1998. He served over four years before investigators discovered that his DNA sample had been misinterpreted. In fact, his DNA did not match the rapist's DNA after all.

A second concern is that the immediate collection of so many samples may very well lead to an overload in the crime lab. Yet, supporters like Defendants' Rights Council Christopher Plourd argue that Prop 69 "protects people from being falsely accused and destroying lives."

Still, opponents say the expansion of the database is contrary to laws which protect medical, financial, and personal privacy, and may lead to civil rights violations as well. San Francisco ACLU lawyer Maya Harris said Prop 69 "turns the presumption of innocence on its head. When the government starts telling people that, if you prove you're innocent we'll let you out of the criminal database, that's a complete reversal of justice as we know it."

One core question remains: is DNA really private at all? Certainly, we leave traces of it behind us almost everywhere we go, and anyone willing to spend the time and effort to collect and analyze it can do so without fear of prosecution. And, currently, no law prevents detectives from collecting DNA samples from criminal suspects without a warrant. So, as long as the sample is taken from an item the suspect has willfully discarded, such as a chewed piece of gum or a used cup, the DNA is fair game.

The bottom line: DNA on file will help police and other investigators nab criminals; but, at what cost?