DNA testing is one step closer to becoming an everyday occurrence due to the passage of California's Proposition 69 earlier this month.  On November 2, residents of California approved mandatory DNA testing of all adults and juveniles convicted of a felony and all adults arrested for serious felonies including rape, murder and involuntary manslaughter.  In 2009, the law will expand to include all suspects arrested for any felony.

This measure adds California to the list of 36 states that require DNA testing for convicted felons.  But in 2009, California will join a short list that includes Louisiana, Virginia and Texas in testing every adult arrested on suspicion of any felony.  This has provoked objections from many civil rights organizations including the American Civil Liberties Union (ACLU) of Southern California.

“We're very much against this new piece of legislation,” said Peter Eliasberg, managing attorney at the ACLU of Southern California.  “It's an invasion of privacy for innocent people.”

But the authors of this legislation feel that it is needed.  Current California law requires police to collect DNA from those convicted of any of 36 serious felonies, including rape and murder.  By testing all convicted felons in the next year, California's existing DNA database of 200,000-plus entries is expected to double. 

Dave Labahn, the executive director of the California District Attorneys Association, said that these extra entries in California's DNA database will help find the perpetrators of more crimes, including cold cases, crimes for which there are currently no leads.

“With the current database of 200,000 names, a little over 1,000 cold cases have been solved,” Labahn said.  He suggested that when the size of the database doubles, the number of solved cold cases might also similarly increase.

“We might get as many as 4,000 or 5,000 cold hits if we compare just the backlog of cold cases to this new database,” Labahn said.

Labahn also said that the new law will help find people who disappear between their first arrest and the time that they are charged with a crime. 

“Many folks are never seen again,” he said.  “This will help us track them down.”

As the legislation is written, DNA samples will be obtained from all eligible arrestees and felons with oral swabs at the same time fingerprints are taken.  Trained deputies will run a swab across a person's inner lip, seal the sample, and send it to the state Department of Justice laboratory in Richmond, Calif.  There the sample will be analyzed for its DNA and stored indefinitely, unless successfully appealed.

In published reports, Deputy District Attorney Lisa Kahn recently said that this testing will cost approximately $50 per sample.  This cost will be recovered by a surcharge of $1 added to every $10 in court fines levied for infractions, misdemeanors, and felonies.

While the DA's office contemplates the use of the drastically increased DNA database, the ACLU of Southern California worries about the law's consequences on civil rights.

Eliasberg said that although California's Ninth Circuit Court of Appeals has a history of upholding the constitutionality of taking DNA samples from criminals convicted of certain felonies, Proposition 69 encroaches upon the civil liberties of the innocent. 

“The ACLU is planning to file a suit challenging the initiative's constitutionality,” Eliasberg said.  “This new legislation is a larger invasion of privacy than the current techniques of fingerprinting or photographing.”

Although the fingerprints and photographs of all arrested suspects are currently added into a database where they remain indefinitely, Eliasberg said he believes DNA samples should be regulated differently.

“DNA is much more than a form of identification,” he said.  “You can't glean anything more than identity from a fingerprint, but DNA contains information about genetic heritage, predisposition for diseases, and more.  All this is not available through the surface information of a fingerprint.”

But, Labahn said that the Richmond lab is currently equipped to scan DNA only for identifying information, not for genetic predispositions or heritage.

“Just like the fingerprint database, the DNA database is for identification purposes only,” he said.

Eliasberg, however, insisted that the possibility of mining the samples for more personal information is a great danger to civil liberties.

“Proponents of this legislation grossly undersell the amount of information potentially available through DNA,” he said.

Controversy also rages over the method by which Proposition 69 allows innocent people to remove their DNA samples from the database.  The law permits people arrested for felonies, but later cleared of all charges, to petition for the destruction of their DNA sample.  Yet, if a judge refuses to expunge the DNA record for any reason, this decision is binding and cannot be appealed.

“The judicial system has a good track record, so I see no reason to think that the courts won't properly exercise discretion about expunging DNA records,” Labahn said.

Eliasberg, however, sees this procedure as unnecessary and cumbersome.  “If we really want to remove the DNA information of innocent people from the database, it should be done automatically,” he said, suggesting that the law is a blow to the presumption of innocence.

While Labahn said that Proposition 69 will help identify criminals and curb offender flight risk, Eliasberg contends that the law is excessive. 

“Fingerprints and photographs can both identify suspects.  And, if the government is concerned about flight risk, it should consider this during detention hearings.  It's possible to prevent flight by not offering bail,” Eliasberg said.  “People in the criminal justice system keep referring to the miracles that can be wrought through this initiative.  But the implications are greatly exaggerated.  There are other ways of dealing with both identification and the risk of flight that are not as invasive.”

The new legislation took effect immediately after its passage November 2, and will remain in effect unless the ACLU's impending suit finds the Proposition 69 unconstitutional.  Its influence on the criminal justice system and civil rights will be watched closely in the coming months.

The California District Attorneys Association can be reached at 916.443.2017; the ACLU of Southern California can be contacted by calling 213.977.9500.