Spit & Acquit: Orange County’s ‘Shadow’ Experiment in Genetic Surveillance

If you’re ticketed in California’s Orange County for a misdemeanor, prosecutors may offer you a deal that could be hard to refuse.

If you agree to pay $75 for a technician to take a sample of your DNA, your case will either be dismissed or you’ll face a minimal penalty if convicted.

Since 2007, some 150,000 Orange County residents have accepted the plea, in what local courts call a “Spit and Acquit” policy—and what one study describes in alarming terms as a “shadow” program to create an expansive DNA database, with slim justification for increasing public safety.

“The prosecution of marginal petty misdemeanor cases has allowed [Orange County] prosecutors to create a vast genetic surveillance system that would otherwise not exist,” writes Andrea L. Roth in a study published in the California Law Review.

Although Orange County’s approach to misdemeanor offenses is, apparently, the only one of its kind in the country, it illustrates the growing danger of an alliance between law enforcement and private surveillance technology operating with little public oversight, according to Roth, a professor at the University of California-Berkeley School of Law.

“Spit and Acquit has operated largely in the shadows, outside of public debate, legislative wrangling, and cost-benefit analyses, leading to less accountability,” she wrote.

Orange County authorities originally justified the program as a way to provide individuals charged with minor offenses with alternatives to time-swallowing court procedures. They also argued that it could benefit public safety by giving police access to a larger DNA database than is currently available through statutory programs like the Combined DNA Index System (known as CODIS) which mandate holding DNA samples from offenders convicted of serious felonies across the U.S.

Both justifications are arguable, said Roth.

Since the Orange County program focuses on individuals who are likely to escape prosecution anyway for offenses as minor as walking a dog without a leash, plea deals are likely superfluous. And there’s no evidence that “low-risk” offenders are likely to present future threats to public safety, Roth wrote.

The 150,000 DNA samples held by the Orange County District Attorney (OCDA) produced a total of just 776 “matches” with DNA at crime scenes over the decade, but it’s not clear that the suspects would have been identified otherwise using existing databases such as CODIS, she added.

In fact, wrote Roth, her analysis of the program, together with interviews with judges and other authorities, raised the suspicion that some misdemeanor cases were being pursued just to add more samples to the database.

“One judge told me that shortly after Spit and Acquit started, judges in superior court began to suspect that OCDA was filing some cases knowing that they were never going to pursue the case unless they absolutely had to, just to get the DNA,” Roth wrote.

Individuals who agree to “Spit and Acquit” deals must sign waivers agreeing that their DNA will remain in the custody of Orange County forever, and can never be expunged. Some regret what they have done, too late.

Roth cited one example of a permanent resident charged with walking a dog off leash who was persuaded by a judge that giving her DNA was a “unique opportunity” to prevent her from going to trial—where she might otherwise face stiff penalties. Since she worried that a misdemeanor conviction might affect her citizenship application, she accepted the deal—only later to decide that it was a “mistake.”

For first-time offenders, the speed and simplicity of the process is attractive—compared to a perceived ordeal of dealing with judges and attorneys.

Defendants are invited to a meeting with the local DA who tells them they can avoid the entire judicial process if they just walk “down the hall” to submit a DNA sample.

After they submit to having a cotton swab scrape their cheek, they sign a one-page waiver confirming they understand their DNA is being provided for “permanent retention [and can be] checked or searched against other DNA.” They also waive the right to any future legal challenges.

In a further insulation against public accountability, no government funds are used to operate the system: The fees underwrite the total cost of the program. Over the past decade, Orange County has earned a little over $11 million from the system, much of used to contract with private companies who operate the testing.

Government-operated databases like CODIS, which now hold about 13 million samples, have come in for serious criticism from civil liberties advocates as they have expanded over the past several years.

While such databases are at least nominally subject to legislative oversight, Roth noted that the Orange County District Attorney (OCDA) database is now larger than some state statutory databases, but “almost no publicly available data exists about its operation or effects.”

Andrea Roth

Prof. Andrea Roth, courtesy UC Berkeley

Roth wrote that it’s not clear why other jurisdictions haven’t followed Orange County’s lead, although prosecutors from other parts of California have inspected the program.

But she pointed out that rapid advances in technology are allowing prosecutors to partner with private industry independent of state budgets, to become in effect “surveillance entrepreneurs” with the putative goal of improving their crime-fighting efficiency.

“Looking into the future, given the swift advancement of biometric technologies, one could also imagine that the Spit and Acquit dilemma will repeat itself in other surveillance contexts,” she writes.

“These might include facial recognition databases, retina scans, cell phone searches, electronic monitoring…GPS tracking of vehicles, video monitoring or medication with new drugs intended to reduce criminal behavior,” wrote Roth.

According to Roth, the most effective answer to Orange County’s DNA plea bargaining is to decriminalize misdemeanors, particularly first-time offenses, and adjudicate them in a non-punitive way through what some criminologists, such as the late Norval Morris, call an “administrative law of crime.”

But Roth conceded that such concepts now face stiff competition from the lure of gleaming high-tech solutions.

“So long as misdemeanor caseloads remain high, and private companies continue to advertise their technologies as a cheap and reliable means of criminal investigation for low-risk offenders, the seeds will be planted for another program like Spit and Aquit,” she wrote.

Prof. Roth’s paper can be downloaded here.

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