Bad genes

It is ridiculously hard for Californians to get their DNA out of the FBI’s genetic database

Kent Hernandez/Fusion

In 2012, Silicon Valley millionaire Ravi Kumra was murdered during a home-invasion robbery. During the investigation of the crime scene, police found DNA under Kumra’s nails that seemed sure to belong to the person who had attacked him. When police checked the FBI genetic database, they found a match: Lukis Anderson, a homeless man previously convicted of a residential burglary. Anderson, who had suffered brain damage after being hit by a truck, denied murdering Kumra, but couldn’t remember where he’d been that night, so things were looking pretty bad for him.

But thanks to medical records, according to the San Jose Mercury News, Anderson’s lawyer was able to prove that his client was at a hospital that night; he’d passed out from drinking too much and been picked up by an ambulance—the same ambulance that later went to Kumra’s house. “His DNA turned up at the murder scene only because paramedics inadvertently transferred it there, via a simple oxygen-monitoring probe they’d clipped first onto his finger and then onto the dead man’s,” recounted the Mercury News last year.

Once your DNA is the FBI’s database, you’re included in a genetic line-up every time police are looking for a suspect in a crime. And depending on the state that you live in, close family members, whose genetic information is similar to yours and so could be matched through yours, could also be implicated in a search. And, as we learned this year, DNA forensic science isn’t an exact science.

“If your DNA is in the database, you’re more likely to be implicated correctly or falsely in a crime,” says ACLU attorney Michael Risher.

That’s why it’s so problematic, argues University of California, Davis law professor Elizabeth Joh in a new law review article, that the ability of innocent people to get their DNA out of the FBI’s database is “largely a myth.”

The FBI CODIS database now has DNA on nearly 15 million people; over 2 million of them are simply arrestees as opposed to convicted offenders. Most states collect a genetic sample from anyone arrested for a felony. Some states such as New York collect for misdemeanors as well. (And New York does a genetic scrub after misdemeanors too—a few years back, the NYPD collected DNA after an Occupy Wall Street protest in the subway, and then, after a flawed genetic analysis, falsely accused one of the protestors of committing an unsolved murder.)

If a person isn’t ultimately convicted of a crime, they have the right to have their DNA expunged from the database, but Joh explains in the Pennsylvania Law Review that the process of expungement in most states is “burdensome, costly, and must be initiated by the arrestee.”

“Consequently, very few arrestees eligible for DNA expungement—because they were never charged or because their charges were dismissed—actually have their genetic profiles removed,” writes Joh, arguing that DNA expungement should be automatic if someone is not ultimately convicted of a crime.

Joh focuses on the state of California in her article, whose residents make up a quarter of the FBI’s arrestee database with over 600,000 profiles. With over 2 million samples in the database total, including the profiles of offenders, Californians make up the largest number of genetic suspects in every criminal line-up. The process of getting genetically exonerated in the Golden State is especially onerous, writes Joh:

The arrestee seeking expungement must send a written request, with proof of service, to three places: 1) “the trial court of the county where the arrest occurred”; 2) the state’s DNA laboratory; and 3) to the prosecuting attorney of the county in which he was arrested.

At the expungement hearing, the person must provide 1) a written request for expungement, 2) a letter from the prosecution certifying the basis of the arrestee’s eligibility, 3) proof of written notice of his request for expungement to the prosecuting attorney and the DNA laboratory, 4) a court order verifying that 180 days have passed since the arrestee initiated the expungement process, and 5) that there has been no objection from the California Department of Justice or prosecuting attorney.

Joh cites a 2013 Urban Institute study that found that 18 out of 28 states that collect DNA from arrestees place the burden on them to get their DNA cleared. Just 7 states do it automatically.

To get a sense of how often people actually go through this process, I asked California how many times it’s expunged people’s DNA. According to the California Attorney General’s office, just 429 expungement requests have been received since 2004; 419 of the requests have been fulfilled, while ten are “currently in process.” Contrast that with Maryland, where DNA expungement is automatic; over 10,000 people had their DNA expunged just from 2009 to 2011, which was a third of the samples collected over that time.

California’s number of expungements is almost certainly lower than the number of people who qualify for clearing their genes. Joh cites California’s Department of Justice arrest stats to show that nearly a third of people arrested for a felony in 2014 were eligible for expungement.

Lily Haskell is an example. After being arrested at a peace rally in San Francisco in 2009, she wasn’t charged with a crime but did have to provide a DNA sample. She’s now part of an ACLU lawsuit against the California government challenging mandatory swabbing for arrestees. Haskell and her co-plaintiffs, who also had their DNA collected for crimes for which they were never charged or convicted, have not tried to get their DNA expunged.

“They’re taking a principled stand. Their logic is that it shouldn’t have been taken in the first place,” explains their lawyer, Michael Risher of the ACLU. “I don’t think people should be in a criminal database if they haven’t been convicted of a crime.”

Risher also points out that racial disparities in who gets arrested in the first place mean you’re likely to get a DNA database which has far more people of color. “It exacerbates and creates a feedback loop that increases disparities in our racial justice system,” he said.

Joh argues that more states adopt a policy of making DNA expungement automatic, writing that people shouldn’t “forfeit their genetic rights simply because of an arrest.” “If states are interested in keeping the genetic information of all arrestees indefinitely,” she writes, “legislators should debate such policies openly, rather than establish them secretly through difficult barriers to expungement.”

The Myth of Arrestee DNA Expungement [Pennsylvania Law Review]