Court Requires California to Clear Its Massive DNA Database of People Never Convicted of a Crime
When someone gets arrested for a felony in California, they have no choice: the police take a sample of their DNA.
But even when they’re not convicted, the California Department of Justice still hangs onto their DNA indefinitely, storing it in a massive database to use in future investigations.
DNA evidence can sometimes lead to wrongful arrests and convictions.
We filed a lawsuit in San Francisco Superior Court to stop this gross violation of the right to privacy.
On February 10th, Judge Victor Hwang ruled in our favor. He gave the California Department of Justice 90 days to submit a plan for automatically destroying the DNA of hundreds of thousands of people who are legally eligible to have their DNA expunged.
This is an important vindication of the California Constitutional right to privacy, which was enacted precisely to prevent the government from “stockpiling unnecessary information about us.” DNA is extraordinarily sensitive personal information. It contains an individual’s entire genetic blueprint, providing a window into familial relations, ethnicity, health, and propensity for disease. Since 2009, California has taken the DNA of everyone who is arrested for a suspected felony to look for matches among DNA samples taken from crime scenes.
If you are never prosecuted after your arrest, or if you are acquitted or proven innocent, you have a right to have your DNA sample destroyed and your DNA profile removed from state and federal databases. The problem is, Cal DOJ doesn’t tell you that. So, you have to first somehow find out you have the right to get your DNA expunged. Then, you have to navigate the complex legal forms required to get it done on your own. In 15 years, only about 2,000 people have done this, though even conservative estimates suggest that hundreds of thousands of people are eligible. In other words, Cal DOJ is retaining approximately 99% of the data that is eligible to be expunged.
The ruling was also an important victory for racial justice. Black people are between three and four times as likely as white people to be among that 99%. This reflects racial disparities at every step in the process: Black people are more likely to be arrested; those arrests are more likely to be unfounded, with the result that Black people are less likely to be convicted. And Black people are less likely to apply for expungement, in part because of unwillingness to voluntarily reengage with the criminal legal system. As a result, Black people are overrepresented in state and federal DNA databases, making it is easier to investigate and convict Black people by means of DNA evidence.
The State’s refusal to automatically expunge the DNA of people who are eligible has thus created a two-tiered system of criminal law enforcement on the basis of race.
To bring an end to these systemic harms, the ACLU of Northern California sued on behalf of the Center for Genetics and Society, Equal Justice Society, and taxpayer Pete Shanks. We demanded that Cal DOJ automatically expunge the DNA of everyone eligible.
In response, the state claimed it should not be required to do so for two reasons. First, because more DNA is allegedly better for crime-solving, and second, because Cal DOJ is neither staffed nor funded to expunge DNA in large numbers.
These responses make clear that the State never wanted anyone to seek expungement in the first place.
Fortunately, the Superior Court saw through these defenses.
If the State were free to collect and hold DNA simply because a bigger database makes it easier to solve crimes, then the State could collect DNA from every single person in California. But the right to privacy clearly forbids that. Nor may the government use cost as an excuse to violate the constitution. In short, the Superior Court laid bare the lack of any justification for the State’s conduct.
The State’s 90-day window to comply with the court order is up on May 12. It is time for the State to honor the right to privacy of people who have never been convicted of a felony and destroy the DNA it has held for too long.
We call on the California Department of Justice to follow the Superior Court’s order and submit a plan for automatically expunging the DNA of the hundreds of thousands of people who are eligible.
And we look forward to working with the State and the Superior Court to see that an appropriate plan is enforced and the people’s right to privacy is restored.
