Everybody's got a price: why Orange County's practice of taking DNA samples from misdemeanor arrestees is an excessive fine.

• Author: Purtill, Michael

1. INTRODUCTION

   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. Instead, this Comment will focus on whether a county government's decision to drop criminal charges in exchange for a DNA sample to be permanently entered in a database and a $75 fee constitutes an excessive fine under the Eighth Amendment Excessive Fines Clause. (23) This Comment will briefly summarize the current discussion on the constitutionality of statutes authorizing DNA collection from arrestees. From there, it will discuss the text, history, and judicial interpretations of the Excessive Fines Clause of the Eighth Amendment. Ultimately, this Comment will show that Orange County's program violates the Eighth Amendment rights of citizens to be free from the imposition of excessive fines.

2. STATUTES AUTHORIZING COLLECTION OF ARRESTEES' DNA AND THEIR CONSTITUTIONALITY

   The county program maintains an individual's DNA indefinitely regardless of the disposition of the arrestee's case. (24) All fifty states authorize criminal DNA databases, and every state--including California--requires that DNA samples be taken from certain convicts, most commonly convicted sex offenders. (25) Several states and the federal government authorize the collection of DNA at the time of arrest for certain crimes. (26) These statutes, however, authorize the collection of DNA upon arrest for felonies and federal crimes, not simple misdemeanors. Further, these statutes require the destruction of the DNA sample when certain conditions are met, such as the charges being dropped or the individual being acquitted of the crime. (27) The Orange County program has no such provision; individual samples are maintained in the DNA database indefinitely.

   Courts are split on the constitutionality of taking DNA from arrestees. The federal statute and two conflicting judicial interpretations thereof provide an excellent starting point for the discussion. (28) Although both of these cases focus on the statute's constitutionality under the Fourth Amendment, there are several relevant issues that suggest how future courts would rule on an Eighth Amendment challenge. (29)

   In United States v. Pool, a criminal defendant pied not guilty to a crime involving possession of child pornography. (30) The defendant had no prior criminal record. At his arraignment, he agreed to a series of pretrial conditions but refused to submit to court-ordered DNA testing as required by the Bail Reform Act (31) and the DNA Fingerprinting Act of 2005. (32) He challenged both statutes on the grounds that they authorized an unconstitutional search. (33)

   The court rejected Pool's argument, but suggested that it would not authorize DNA collection from all arrestees. First, the court rejected Pool's argument that the presumption of innocence for criminal defendants warrants a "special needs" analysis for the reasonableness of a search. (34) Because the defendant had already been indicted and arraigned, he was subject to greater restrictions than an "ordinary citizen." (35) The court reasoned that "[t]he judicial or grand jury finding of probable cause within a criminal proceeding is a watershed event.... After such a judicial finding, a defendant's liberty may be greatly restricted--even denied." (36)

   Although the court was willing to uphold the legality of collecting DNA from Pool and other pretrial detainees, it was not willing to extend its holding to misdemeanor arrestees:

   The undersigned emphasizes what this holding does not encompass. It does not authorize DNA sampling after citation or arrest for infractions or misdemeanors, as in these cases there will be no judicial finding of probable cause soon after the arrest or citation, or no grand jury finding before or after the arrest. See, Fed. R. Crim. P. 7(a). It does not authorize police officials to perform DNA sampling prior to a judicial finding of probable cause which must be made within 48 hours after arrest and detention. Again, it is the finding of probable cause on criminal charges which allows the court to set release conditions similar to those of probation and parole, which is the underpinning of the court's holding in this case. (37) The court seems to suggest that without a judicial or grand jury finding of probable cause, the taking and storage of DNA from an arrestee constitutes a punishment in the absence of a conviction.

   Just months after Pool, a federal district judge in the Eastern District of Pennsylvania disagreed with the Pool court and held that the DNA collection statute was unconstitutional under the Fourth Amendment. (38) In United States v. Mitchell, the defendant was indicted for allegedly attempting to possess five kilograms or more of cocaine with intent to distribute. (39) He objected to the trial court's request for a pretrial DNA sample and a magistrate judge stayed the DNA collection until the district court could hear the case. (40)

   The court rejected Pool's holding that the grand jury indictment carries special weight in the determination of a defendant's guilt. (41) According to the Mitchell court, the presumption of innocence stays with a criminal defendant until a verdict is entered, and it is unjust to treat him as though he is guilty at the indictment stage. (42) The court also placed particular weight on the intensely private nature of DNA data. (43) An individual has a strong interest in keeping his "complex and comprehensive" genetic information private. (44) Once information becomes pervasively available to the public, however, the individual may lose his privacy interest in the information. (45) This concern warrants Fourth Amendment protection of an individual's DNA when he is presumed to be innocent of any crime. (46)

   The court also found that DNA databases serve an inherently investigatory purpose that photograph and fingerprint databases do not. (47) Because a law enforcement agency can run a search against all the samples in the DNA database any time it wants, the individual who submits his DNA is subject to countless searches without a warrant or showing of probable cause. (48) Further, because DNA is immutable...