A unique program in Orange County, California is enticing low-level criminal offenders to voluntarily give up their DNA, and the county is accused of using it to create a massive DNA-based surveillance network.

According to a paper in the April 2019 California Law Review authored by University of California-Berkeley law professor Andrea Roth, Orange County’s “Spit and Acquit” program — which is in the state’s third-largest county by population — is creating a worrisome DNA database that could potentially be misused by large tech companies with little to no accountability. On page 5 of the 51-page report, Roth states that the program is allowing county prosecutors “to create a vast genetic surveillance system that would otherwise not exist.”

First created in 2009, the’ “Spit and Acquit” program allowed for low-level, nonviolent offenders charged with drug-related offenses and other misdemeanor crimes to walk away free if they voluntarily gave up a DNA sample. Then-District Attorney Tony Rackauckas argued that the program saved taxpayer money by not having to prosecute tens of thousands of low-level offenders. He also argued that the program reduces the chances that offenders will commit multiple crimes.

“People know we have their DNA,” Rackauckas told the Orange County Register in 2010. “We are more likely to catch them because we have their DNA. [I] think the citizens are not less safe, but safer.”

However, Roth’s paper counters that the program is actually a massive, unaccountable surveillance web operating under the pretext of reducing crime. Roth also pointed out that such a widespread surveillance system could end up being misused to possibly blackmail people in the DNA database.

“Spit and Acquit offers lessons for the future of criminal justice. If, as one Orange County attorney put it, ‘I do not think it’s an exaggeration to say that a main point of [the Orange County District Attorney’s] misdemeanor practice is to populate their [DNA] database,’ then Spit and Acquit raises a broader, and more troubling, question: why are its targets prosecuted in the first place?”

…[W]hen one gives a mandatory DNA sample, the state retains the full physical DNA sample, containing the defendant’s full “genome,” or set of genes. That full genome contains a treasure trove of information about one’s familial relationships, genetic traits, propensity for diseases, and the like. In turn, the state could misuse this sensitive data for intrusive purposes, such as blackmail or invidious research.

While the initial thought process that went into “Spit and Acquit” was that DNA samples found on a crime scene could be easily matched to samples in the database, thereby making crimes easier to solve, Roth argued that the system could actually end up implicating innocent people.

“The chance that an innocent person might coincidentally match a crime-scene DNA profile is generally exceedingly low,” Roth wrote. “But an innocent person might also be falsely implicated through an erroneous or misleading match resulting from malfeasance, interpretive error, presence of one’s DNA because of ‘transfer’ to another person, innocent presence at the scene, or contamination of the sample.”

“Indeed, by one account there have been sixteen documented cases of innocent people falsely accused of crimes due to ‘cold hits’ from laboratory cross-contamination, mislabeling of samples, or interpretive errors,” she continued.

The Orange County DNA database may not be the only one of its kind in existence. As Grit Post reported in April, a mysterious white van was seen driving around predominantly black and low-income neighborhoods in Louisville, Kentucky, offering $20 for residents’ DNA samples. While the group said they were with a local healthcare company, that company said they had no such operation, and cautioned residents against selling their DNA to the people in the van.


Tom Cahill is a contributor for Grit Post who covers political and economic news. He lives in Bend, Oregon. Send him an email at tom DOT v DOT cahill AT gmail DOT com.

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