'Spit and Acquit': Prosecutors as Surveillance Entrepreneurs

Abstract

A high-stakes debate has emerged around the legislative expansion of forensic DNA databases, a move that would assist thousands of criminal investigations but also raise profound privacy issues. In Maryland v. King, where the Court upheld the constitutionality of forced DNA sampling of arrestees, Justice Alito described the Court’s 2013 decision as “perhaps the most important criminal procedure case” in “decades.” But this debate fails to account for a different, less-well-understood practice: DNA collection by prosecutors, with the alleged consent of those giving samples. The Orange County District Attorney’s Office offers certain defendants charged with petty misdemeanors a deal: if you want a dismissal or a plea offer, give us your DNA. This innovative practice has come to be known colloquially as “Spit and Acquit.” So far, over 150,000 people — not otherwise required to give the state their DNA — have agreed. Their samples are then kept permanently in a prosecutorial database maintained with the aid of biotechnology companies and funded largely by federal grants and defendant fees. As the largest “consent”-based law enforcement DNA database in the country, Spit and Acquit is worthy of study in its own right. But it also offers a case study of prosecutorial policymaking in surveillance — an area beyond prosecutors’ typical expertise. This Article draws upon original field research, including court observations, interviews with prosecutors, defense attorneys, judges, defendants, and public records, to shed light on this understudied phenomenon. It then argues that Spit and Acquit compares unfavorably to existing legislative databases in terms of public safety benefits, privacy, and democratic accountability. The Article concludes by drawing lessons from Spit and Acquit for the future of genetic surveillance and the emerging field of “misdemeanor studies.”