Northern California Record

Wednesday, February 26, 2020

Equal Justice official says DNA retention for the innocent targets African Americans


By John Sammon | Dec 19, 2018


SAN FRANCISCO — An official for the nonprofit activist organization Equal Justice Society said a California Department of Justice practice of retaining DNA samples—taken from people arrested but who turned out to be innocent—targets African Americans.

“California allows for DNA collection for everyone arrested for every felony, even if the felony is a low-level victimless offense with no judicial oversight,” Lisa Holder, interim legal director for the Equal Justice Society, told the Northern California Record.  “This has a tremendous outsized impact on the African American community because of systemic racial bias in the criminal justice system.”

Based in Oakland, the Equal Justice Society (EJS) website states the organization is tasked with pursuing goals including school discipline and education, improving race relations and combating inequities in the criminal justice system.

The EJS is a plaintiff in a lawsuit filed on Dec. 10 in the San Francisco Superior Court suing the California Department of Justice for its practice of keeping DNA samples for anyone arrested of a felony even if the person was not convicted. Under a state law passed in 2004 anyone arrested for a felony is required to provide a DNA sample, a swab taken from the inside of a person’s mouth during booking. The sample is filed in an index system called a CODIS.

Even though a people arrested and proven innocent can file for removal of their DNA sample by submitting an application, few have — only about 1,500 such requests out of the approximate 750,000 samples taken over the past 10 years.

Joining as plaintiffs in the suit against the state are the activist groups Electronic Frontier Foundation and the Center for Genetics and Society, also based in the Bay Area.

The suit alleges the Justice Department’s DNA collection policy violates state Constitutional privacy protections. The suit was filed as a response to a decision last April by the California Supreme Court rejecting a contention the policy violated federal Fourth Amendment (search and seizure) rules.

Officials of the California Attorney General’s Office who oversee the Justice Department declined to comment on the lawsuit.

“We are reviewing the complaint,” an official with the AG Press Office told the Northern California Record.

Holder said the collection and retention policy is unreasonable because it is improperly expansive and draconian.

“Even Maryland’s law, which the courts have used as a comparator, only allows for the collection of DNA from people charged’ with serious felonies,” she said. “This means the police can only collect DNA on a small class of serious felony arrests only after a judge says they can.”

Holder added that statistics from the state’s Northern (Judicial) District where the lawsuit has been filed show that African American adults are 7.1 times as likely to be arrested and 11 times as likely to be booked into a county jail than are whites.

“That these statistics show blacks have more contact with the system because they commit more crime is debunked by the plethora of statistics that confirm racial bias in policing, including a study by the California State Assembly’s Commission on the Status of African American Males," Holder said. “An astonishing 92 percent of the black men arrested by police on drug charges were subsequently released for lack of evidence or inadmissible evidence.”

Holder said racial bias in stops, searches and arrests is an irrefutable fact.

“A law that allows for intrusive DNA collection without due process reinforces and exacerbates racial injustice,” she noted.

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Organizations in this Story

California Department of JusticeSan Francisco Superior Court

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