WHAT’S THE POINT?
Today, on California’s ballot, is a seemingly mild proposition. One that looks like a good idea but has some hidden provisions that just might affect you.
Proposition 69 is the short name for a proposed amendment to the “DNA Fingerprint, Unsolved Crime and Innocence Protection Act.”
This piece of legislation has the lofty goal of increasing the conviction of those arrested and charged with a felony, and setting free those who are wrongly convicted or charged.
The DNA Act allows for the government to sample a person’s DNA, that basic building block of who you are. Once a person, whether adult or juvenile, has been convicted of ANY felony, ANY sex offense, arson or an attempt to commit any of the above, the government can get a sample of DNA.
An adult who has been arrested for, or charged with, felony sex offenses, murder or voluntary manslaughter, or the ATTEMPT to commit such an offense, may also be sampled.
Beginning in 2009, the law automatically expands to include sampling of ANY adult who is arrested or charged with ANY felony offense.
Now I’m pretty much a pro-law-and-order kinda guy. I like my city to be clean and my streets to be safe. I’m in favor of strong penalties for violent crimes.
But this piece of legislation is a prime example of why the electorate — that’s you and me — need to read what is put forth by our legislators and our Governator. It has been designed to appeal to our intrinsic sense of moral outrage at criminals. But it is the next step on the path to the fictional world of the movie “Gattaca.”
It is a world of genetic testing and absolutes. This type of thinking is black and white: A mentality that declares one thing right and another thing wrong with no room for thoughtful reflection.
Sometimes it seems in this world like there are clear right or wrong situations. Those are called moral absolutes. A 45-year-old man having sex with a 5-year-old little girl seems morally, absolutely wrong, in all cases, no exceptions. But what if that 45-year-old male has a mental capacity of 6-year-old? What if he is simply incapable of understanding morality, based on a biological condition that is completely beyond his control? What if he honestly thinks he is “playing doctor” with the 5-year-old? Should his punishment be as harsh as a man with an IQ of 160 who does the same thing? This is why moral absolutism is so scary. It leaves no room for the oddball case — the situation that no one considered possible, or could even imagine happening. Moral absolutism might be fine for the Pope, an Imam, or a Rabbi, but it is not proper for our judicial system.
Judges are appointed because they are wiser, more educated and supposed to be able to think through a situation. Juries are given information from the defense and the prosecution, and then make a determination of what happened. They need all the information they can get, and they should have access to DNA information.
The question is whether or not that information should be gathered voluntarily or by the jackboots of our government’s police powers.
The argument is simple: An innocent suspect will gladly give up their DNA, and a guilty suspect won’t. So why not force everyone to give up their DNA, and improve our ability to capture criminals and set the innocent free? But if that were the case, why then would the authors of the proposition have written it for only some felonies? And why would it include language that allows for the collection of DNA to be a condition of a “non-qualifying offense” plea bargain?
That plea bargain language allows the district attorney to collect DNA information on every plea bargain into which it enters. That means that the collection of DNA is going to happen in many more cases than the headline of this proposition would have us believe. So what, you might ask? Well, one way in which the district attorney will be able to collect more DNA is to overcharge someone, thus forcing a plea bargain, which will then force them to give up the DNA when they would not otherwise have to.
The collected information will then be forwarded to Department of Justice personnel for cross checks. Additionally, it will be entered into a national database. This is all good for the government and criminal justice, but that is frequently bad for the citizenry.
The proposition states that a person whose sample has been taken, and who has no “past or present qualifying offense, and for whom there otherwise is no legal basis for retaining the specimen or ample or searchable profile, may make a written request to have the sample” destroyed and their profile expunged from the database.
What this means is that in theory you can have your records cleaned up, but don’t count on it. It puts the responsibility on you, the innocent, to clear your records with the government. And we all know what dealing with the government is like when it comes to getting them to clear up a mistake.
Much like the Social Security number that is now used for everything from governmental benefits to buying toilet paper at a discount, this data will become used for other governmental purposes.
DNA collection sounds great in principle, but when does the information collected become part of a much wider data-base that records all kinds of information about us?
In reality it is probably a foregone conclusion that we will all be in a database of DNA one day. The banks want it, the insurance companies want it, the hospitals want it, and certainly the government wants it.
We just need to know that that is what is happening when we vote on a piece of legislation that “Convicts Criminals and Sets the Innocent Free.” In legislation, it’s the buried paragraph that will trap you, not the headline. (David Pisarra is a business development lawyer in the Santa Monica firm of Pisarra & Grist. He welcomes your questions and comments. He or (310)664- 9969).
Originally published in the Santa Monica Daily Press print edition on November 2, 2004. Read the original PDF.