Critics say a ban would violate the state's voter-approved legalization of recreational marijuana, which took effect in January.
Prosecutors in Orange County, Calif., have taken the rare if not unique step of creating their own DNA database.
They’re asking for voluntary DNA swabs from people arrested for minor crimes such as shoplifting, in exchange for dropping charges.
The argument is that it could help authorities solve cold cases.
Experts and other district attorneys are taking note.
DNA database expert Kelly Walsh, who is also a researcher with the Justice Policy Center at the Urban Institute, joins Here & Now’s Meghna Chakrabarti to discuss this unusual step by the Orange County District Attorney’s Office.
MEGHNA CHAKRABARTI, HOST:
This is HERE AND NOW.
Imagine this scenario: You've made the very unfortunate decision to shoplift and you get arrested. The district attorney comes in and gives you a choice: face trial and possible jail time, or have the charges for this minor crime dropped if you give the DA a sample of your DNA. And that genetic material could be stored on a prosecutor's database forever.
Well, that's exactly what's happening in Orange County, California, where prosecutors have set up their own DNA database. It's possibly a unique one because in most other places, it's the police that gather and store DNA samples.
Joining us from NPR in Washington is DNA database expert Kelly Walsh. She's also a research associate with the Urban Institute. And, Kelly, why are California prosecutors doing this, seeking to collect their own DNA evidence even for minor crimes?
KELLY WALSH: One reason is speed. They are able to, you know, collect quickly, send it off to a private lab who analyzes it relatively quickly. The other benefit to them is that they really want to target people who would not normally be included in the state database. So the goal isn't to have a redundant record. You know, the state of California has their - runs their own state DNA database.
They're looking to get people in who wouldn't normally go into that, with the goal that there may be an additional portion of the population that if we had their DNA in a database, we'd be able to link them to unsolved crimes.
CHAKRABARTI: Well, in fact, we're reading an example that's been reported from Orange County that police there had arrested a man for drunken driving. They received a sample of his DNA through this sort of plea deal arrangement with the DA's office. And there, it matched DNA found in connection with a 10-year-old rape case that had become a cold case. And, in fact, Orange County District Attorney Tony Rackauckas says that, quote, "This is exactly the type of crime we were targeting when the program was created."
WALSH: Exactly. And even at the state and national level, you see examples where someone has been put into the database for one level of crime, something you consider low level like a property crime, and they end up being connected to more serious, violent crimes.
CHAKRABARTI: But on the other hand, I'm also seeing that Camille Hill, deputy district attorney in Orange County, you know, she said that their program has drawn interest from prosecutors in other places and, quote - she says, "Look at violent felons. Look at where they started. They started with a petty theft at Target, for example." Now, to me, in that statement is the assumption that, you know, minor shoplifters may end up becoming more violent felons, which we don't necessarily know is true.
WALSH: Right. I think that some do and some don't. And that idea of how far down do you go, you know, how low level of a crime does then someone, you know, get involved in a DNA database is an interesting question not just for Orange County, but for also state- and national-level DNA databases themselves.
CHAKRABARTI: Right. And that's exactly why I'm asking this question because as, of course, you know, back in June, the Supreme Court decided a case that came out of Maryland that allowed the state there to collect DNA evidence without a warrant for people arrested and charged with serious crimes.
Now in his dissent, Justice Antonin Scalia warned that, quote, "Your DNA can be taken and entered into a national database if you're ever arrested rightly or wrongly and for whatever reason." And he also predicted that the limitation to serious crimes wouldn't last. So in the case of Orange County, are we seeing that Scalia's prediction is beginning to come true?
WALSH: Well, the Orange County database precedes the Maryland v. King decision. But I do think it's an example of how the idea of widening the net to less serious offenses is really attractive to those in law enforcement.
CHAKRABARTI: I wonder, from your analysis of how DNA databases are growing at the local, state and federal level, what's your primary concern, if any?
WALSH: Well, there's a concern that are we really reaching a point of diminishing returns? We have 28 states and the federal government who have decided that we will expand collection to arrestees, people who've been charged but not yet convicted. And if you go back to the sort of the history of the state and national databases in this country, they started out looking at a very narrow swatch of type of people, and that has expanded incrementally over the years.
So I don't think the dissent is really that far off when they point out that it's very likely this decision will be used to support collecting from people arrested of non-serious offenses.
CHAKRABARTI: Mm-hmm. Justice Anthony Kennedy, when he wrote the majority's opinion in that Maryland case, Maryland vs. King, he basically said that taking a swab for DNA is illegitimate police-booking procedure, reasonable under the Fourth Amendment, just like fingerprinting and photographing.
I wonder, is it possible to get your DNA removed from a database? I mean, say, in the case of Orange County - and again, this is a hypothetical - but, say, one is driving, you know, doesn't have their license on them and gets pulled over and arrested, you know, and exchanges a swab of their DNA for a plea bargain or have those charges dropped, can that person ever get their DNA sample removed from that database?
WALSH: So taking a sample out is generally referred to as expungement. If you're arrested but not ultimately convicted, in some states, you can ask to have your profile removed from the database. The onus is on that individual person. In other states - and Maryland is one of these - the way the laws are written for that state, they are responsible for tracking that outcome. So they're allowed to collect from arrestees, include arrestees in their database, but they need to track all of those cases, and if someone is not convicted, they're required to expunge them from the database. That's a lot more burdensome, and hence, it's also a lot more rare.
CHAKRABARTI: Mm-hmm. And now, you are a research associate at the Urban Institute and a DNA database expert. So, I mean, what's your sort of big-picture take on what the Orange County database tells us about where this is going in terms of how it's used by both prosecutors and law enforcement in the future?
WALSH: I think what's really interesting about what can happen at the local level, like what's happening in Orange County, at the local level, you have room for innovations. But all of that opportunity comes with risk. And it's very important that any of the decisions made about any local DNA database come with oversight. Ultimately, this is a really powerful tool for law enforcement. And the decisions about who gets in, and when they get in and how long they're there all need to be made very, very thoughtfully.
CHAKRABARTI: Well, Kelly Walsh is a DNA database expert and research associate with the Urban Institute. Kelly Walsh, thank you so much.
WALSH: Thank you.
CHAKRABARTI: Well, so many issues here regarding civil liberties and law enforcement. What do you make of prosecutors collecting DNA for minor crimes? Let us know at hereandnow.org. You're listening to HERE AND NOW. Transcript provided by NPR, Copyright NPR.