DNA Collection From Arrestees Approved
Proposition 66 (Prop. 66), a voter Initiative Act placed on the ballot by prisoners' families to soften California's unforgiving "3-Strikes" law by qualifying an offense as a third strike only if it is an enumerated "serious" or "violent" felony (rather than the current "any felony") was crushed by an intense eleventh hour media fear-campaign. Only one week before the election, polls showed that Prop 66 enjoyed a 65% "sure win" sentiment, with $2.8 million donated to support its passage and only $133,000 to oppose it. But that evaporated to a losing 46% vote by November 4, 2004, the big money, special interest, contributions of $6.2 million poured in and changed 1.5 million voters' minds. The media-blitz of misinformation was paid for with over $2 million donated by Governor Arnold Schwarzenegger's initiative campaign fund, $3.5 million from southern California billionaire Henry Nicholas III and at least $700,000 from the powerful California prison guards union (CCPOA). Separately, the voters approved Proposition 69 (Prop. 69) which provides for collection of DNA samples from all current prisoners as well as from sex offender and felony arrestees.
Prop. 66 had three major features. First, as a "hook" to appear "tough on crime," it increased punishment for many sex crimes, the crown jewel of which was 25 years-life for first-offense child molestation of a victim under the age of ten. Second, it lifted the "any felony" qualification for the third strike to instead require the third strike to be like the first two statutorily specified recidivist "serious" or "violent" felonies. This change was intended to permit retroactive resentencing of about 4,500 current 25-lifers whose third strikes were as benign as drug possession, petty theft with a prior, or failure to timely reregister as a sex offender. The avoided long-term incarceration cost of $1 million each would have totaled $4.5 billion.
But it was the third feature that may have doomed Prop. 66 decriminalizing the status of six felonies by removing them from the "serious" or "violent" recidivist list. The most significant of these was 1st degree (daylight/residential) burglary where no one was at home. While this was intended to apply to third strike sentencing, the media-blitz propounded that those convicted of only a second strike [whose recidivist enhancement invokes doubling of the normal term plus doing 80% of that time, rather than 50% otherwise] might also apply for retroactive resentencing. Proponents of Prop. 66 said they did not intend to include such second-strikers in the sweep of the Initiative, but California's Attorney General Bill Lockyer and every district attorney in the state averred that the proposed language would likely include them - estimating that another 26,000 existing prisoners might thereby gain an earlier release.
No organized opposition appeared against Prop. 66 until four days before the election, when Nicholas added $2.0 million to his initial $1.5 million ante that had been given upon prodding from former Governor Pete Wilson. The purpose was to buy every second of available radio air time in the southern California market, as well as sizeable chunks elsewhere in the state. Suddenly the airwaves were saturated with fifteen-second radio and TV spot commercials featuring Governor Schwarzenegger announcing that if Prop. 66 passed, "26,000 murderers, rapists and child molesters would be released to your neighborhood." Yet, just weeks earlier, the Sacramento Superior Court had ordered similar language stricken from the ballot arguments mailed to all voters because it was "patently false." The commercials ended with a sliding cell-door slamming shut in front of three prisoners. .Another commercial featured a woman who lost two loved ones in a manslaughter case, arguing that Prop. 66 would release the perpetrator. It depicted a montage of 26 prisoners' photos, followed by murder-victim parent-turned-activist Mark Klass incanting the mantra, "Murderers, rapists, and some very dangerous child molesters." Nicholas even flew former Governor Jerry Brown down to Southern California to produce an FM radio ad with guitarist Ryan Shuck and drummer Dave Silvera of heavy metal bands Orgy and Korn.
Not amused by seeing his own picture in the photo montage was 3-strikes life prisoner David T. Chubbuck (convicted of soliciting a beating of his wife) who was implicitly portrayed as a child molester in the ad. California Department of Corrections' spokesperson Margot Bach acknowledged that Chubbuck is not a molested, but that didn't stop fellow prisoners at the California Medical Facility from sending him 20 death threatening notes. No-on-66 campaign manager Mark Temple said the ad did not depict Chubbuck as a molester, but the public's perception was clearly otherwise -- possibly adding impetus to a threatened taxpayer's lawsuit.
Notwithstanding billionaire Nicholas' $3.5 million juggernaut and his own $2 million donation to the negative campaign, Governor Schwarzenegger told Californians in a televised post-election statement crowing over the many state propositions whose fate he had championed, that the election result was clearly the "voice of the people - not big money, special-interest groups in Sacramento." CCPOA Vice-President Lance Corcoran explained their $700,000 cohtribution: "We're just a small labor union trying to fight for the safety of Californians." For this "safety" California taxpayers will pay his 31 ,000 union members the lion's share of the $1 billion/year it will cost to keep 26,000 potentially eligible "strike" prisoner incarcerated.
And if sealing the doom of recidivist petty thieves wasn't enough, 62% of the voters also passed Prop. 69, which provides for blanket DNA sample collection. Effective immediately, DNA must be collected from all adults and juveniles convicted of any felony offense; from all adults and juveniles convicted of any sex offense or arson offense (or an attempt thereof) not amounting to a felony; and from all adults arrested for or charged with felony sex offenses, murder, of voluntary manslaughter (or attempts). Finally, beginning in 2009, DNA samples must be collected from all adults arrested for or charged with any felony offense. California PLN readers should be aware that under Prop. 69, the DNA of all current state prisoners will be collected. Parolees leaving state prisons and county jails are the top priority of those to be sampled. Prop. 69 is expected to supplement the existing 1.5 million DNA profiles in the FBI's Combined DNA Index System (CaDIS) with 1 million profiles from California. California currently has 125,000 samples - a number it expects to double within one year.
Proponents of DNA data bases point to their success, measured by 2,000 "cold hits" in Virginia and 1,100 over ten years in California (with its heretofore more limited DNA testing program sampling only violent offenders). Virginia reports that over 80% of their "cold hits" would not have been made if they had limited their DNA sampling to just violent offenders. And Great Britain, where all arrestees are DNA profiled, reports 3,000 cold hits per month.
To pay for the enlarged DNA data base program -- on top of the October,2004 supplemental infusion of $10 million of federal money - Prop. 69 also enacted a 10% surcharge on every criminal penalty assessed. Additionally, it created a new felony punishable by 2, 3 or 4 years for tampering, or attempting to tamper, with a DNA sample, a thumb print or a palm print impression. The ACLU has filed suit challenging the new law.
Sources: Sacramento Bee; Los Angeles Times; San Diego County Public Defender's memorandum, 10/29/04; California Official Voter Information Guide, Nov. 2004.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login