american prosecutors research institute dna: justice speaks the expansion of forensic dna and its...
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AMERICAN PROSECUTORS RESEARCH INSTITUTE
DNA: JUSTICE SPEAKS
THE EXPANSION OF FORENSIC DNA AND ITS RELATIONSHIP TO STATE
LEGISLATURES AND CONGRESS
November 20, 2003
Presented by:
Smith Alling Lane, P.S.Tacoma, WA (253) 627-1091Washington, DC (202) 258-2301London 0 (44) 798 953 8386
Government Affairs Government Affairs
Attorneys at LawAttorneys at Law
Smith Alling LaneSmith Alling LaneA Professional Services CorporationA Professional Services Corporation
• Offender DNA Databases
• Post Conviction DNA Testing
• Statute of Limitations & “John Doe” Warrants
• Funding
• Problems
FORENSIC DNA ISSUES & FORENSIC DNA ISSUES & THE LEGISLATURESTHE LEGISLATURES
ISSUE #1ISSUE #1
Offender DNA Database Offender DNA Database Expansion Expansion
US DNA Database US DNA Database Legislative Time-LineLegislative Time-Line
1983 - California Legislature passes law to collect blood from certain offenders - “DNA” is not mentioned in statute
1988 - Colorado Legislature becomes the first to enact laws requiring DNA from sex offenders
1990 - Virginia Legislature becomes first to enact an all felons DNA law
1991 - Federal Bureau of Investigations (FBI) establishes guidelines on state sex offender DNA database laws- FBI begins promoting the passage of sex offender DNA
database laws- FBI develops CODIS concept
1992 - Majority of states begin passing laws to create DNA databases for sex offenders
Time-Line (continued)Time-Line (continued)1994 - Congress enacts the DNA Identification Act -- CODIS is
formally created
1996 - Congress enacts the Anti-Terror and Effective Death Penalty Act - a provision of the legislation encourages (requires) states to enact sex offender DNA database laws - Most states have sex offender DNA database statutes in place1997 - A majority of states begin focusing on expanding their database laws to include violent crimes and burglary
1999 - 50 states have enacted sex offender DNA database laws- 27 state DNA databases include violent crimes- 14 state DNA databases include burglary- 6 state DNA databases to include all convicted felons- The American Civil Liberties Union (ACLU) and the Criminal Defense Bar organize to oppose all felons legislation
Time-Line (continued)Time-Line (continued)2000 - Congress enacts the DNA Backlog Elimination Act
(appropriates $140 million to states for DNA analysis)
2001 - Preliminary data showing the success of the Virginia DNA database is released- ACLU virtually disappears from all felons debate- A surge in all felons legislation occurs - 7 more states enact laws, for a total of 14 states with all felon laws
2002 - All felons legislation surge continues - 8 more states laws, for a total of 22 states with all felon laws- Continued reliance on both Virginia data and federal funds- Congress begins work on the Debbie Smith Act- Virginia enacts limited arrestee DNA testing law
2003 - 9 additional states pass all felons legislation, for a total of 31 - Large federal appropriation pending - President’s DNA Initiative is introduced - Louisiana enacts comprehensive arrestee DNA testing law
Why Is DNA Database Expansion So Important?
40% hit rate
1,700 hits/week7.8 crimes prevented
per conviction
Entire criminal pop
by 3/04
5-35 day turnaround
Virginia’s “Cold Hits” on the DNA DatabaseAll Drug Offenders to Type of Crime Solved
Sex Offenses20% (35)
Miscellaneous12% (20)
Abduction/Car Jacking
8% (13)
Robbery10% (18)
Homicide24% (42)
Assaults2% (3)
Burglary24% (41)
Virginia’s “Cold Hits” on the DNA DatabaseDrug Possession Only to Type of Crime Solved
Assault3% (3)
Homicide23% (32)
Rape/Murder1% (1)
Sex Offenses18% (25)
Drug Crimes5% (7)
Miscellaneous2% (3)
Property Crimes48% (68)
Virginia’s “Cold Hits” on the DNA DatabaseForgery to Type of Crime Solved
Abduction / Car Jacking
2% (1)
Burglary49% (22)
Assault2% (1)
Rape/Murder2% (1)
Homicide17% (8)
Sex Offenses26% (12)
Miscellaneous2% (1)
Robbery2% (1)
Virginia’s “Cold Hits” on the DNA DatabaseJuveniles to Type of Crime Solved
Burglary56% (41)
Robbery9% (7)
Assault3% (2)
Homicide11% (8)
Rape/Murder1% (1)
Sex Offenses16% (12)
Abduction / Car Jacking
4% (3)
The Recent Trend To All FelonsThe Recent Trend To All Felons1998 - 5 States 1999 - 6 States 2000 - 7 States
2006 - 45 States (est.) -- assuming data and funding
2001 - 13 States 2002 - 22 States 2003 – 31 States
2003 Legislative Session:2003 Legislative Session:DNA Database Expansion BillsDNA Database Expansion Bills
Introduced but failed to pass limited expansion legislation (1)
Currently an all-felons state (22)Enacted all felons legislation in 2003 (9)
Failed to pass all felons legislation (8)
* *
*
Addressed sunset provisions in database statute*
2003 DNA Database 2003 DNA Database LegislationLegislation
(As of November 2003)(As of November 2003)ST Bill # Sponsor Summary Status
AK HB 49 AndersonExpands DNA database to include all convicted felons and juveniles adjudicated delinquent on felony charges (juveniles are not included under current statute). Also includes most misdemeanor sex crimes. Retroactive to include those currently incarcerated.
ENACTED
AR HB 1074 VerkampExpands DNA database to include any felony offense and misdemeanor sex offenses. Includes community sentences, retroactive to include those currently incarcerated. Removes juvenile delinquent adjudications.
ENACTED
AR HB 2310 PateLimits qualifying offenses for juvenile adjudications to only serious sexual assaults, murder, kidnapping, and aggravated robbery, and terrorist acts.
ENACTED
AR SB 416 GullettExpands DNA database to include crimes of computer child pornography and computer exploitation of a child (1st degree).
ENACTED
AZ SB 1252 BrothertonRequires DNA samples upon arrest or after being charged for felony offenses beginning in 2005, and for an arrest or after a charge for any offense beginning in 2006.
Died in Committee
CA SB 284 Brulte Expands DNA database to include all convicted felons.Failed in
Committee
CO SB 128 GrossmanLocal law enforcement may take DNA samples from felony arrestees, but must pay for crime lab analysis.
Passed Senate. Died in House.
CT HB 5022 BergerExpands DNA database to include all convicted felons. Applies retroactively to probationers and parollees.
ENACTED
FL SB 1648CriminalJustice
Clarifies that the local sheriff is responsible for collecting DNA from offenders who are not sentenced to incarceration. Further clarifies that the sheriff shall secure, process and transmit the specimens to FDLE in a timely manner.
ENACTED
HI HB 1065 MindoExpands DNA database to include all convicted felons. Retroactive to include probationers and parolees.
Died in Committee
HI HCR 214 Marumoto Requests an interim study on expanding the DNA database to include all Class A and Class B felons.Died in
Committee
ID HB 48State Police
RequestExpands DNA database to include burglary.
Died in Committee
IN HB 1531 GoodinExpands DNA database to include all convicted felons. Includes felons not sentenced to incarceration, and retroactive to include currently incarcerated.
Died in Committee
LA SB 346 DardenneExpands offender DNA database to include all felony convictions and arrestees, as well as prostitution and soliciting prostitution. Also includes juvenile adjudications.
ENACTED
StatusSummarySponsor#BillST
ENACTEDExpands offender DNA database to include failure to register with law enforcement as required for a crime against a child or for sex offenses.
Anderson55HBNV
See HB 2617Expands DNA database to include all persons convicted of a “crime”, including those found not guilty by reason of insanity. “Crime” is defined as “an offense for which a sentence of imprisonment in excess of 6 months is authorized.” Retroactive to include currently incarcerated, parolees and probationers.
Sacco2066SBNJ
ENACTEDExpands DNA database to include all persons convicted of a “crime”, including those found not guilty by reason of insanity. “Crime” is defined as “an offense for which a sentence of imprisonment in excess of 6 months is authorized.” Includes a $2 fine for all vehicle and traffic violations to pay for DNA testing.
Johnson2617HBNJ
Died in SenateExpands DNA database to include all convicted felons and juvenile felony adjudications. Retroactive to include persons currently incarcerated.
Beutler662LBNE
Died in SenateClarifies that the state DNA database can be used for forensic casework related to missing persons, relatives of missing persons and unidentified human remains.
Johnson139LBNE
ENACTEDRemoves a sunset provision in current statute which would have had the effect of shrinking the state DNA database to only sex offenders.
Klemin1235HBND
ENACTEDExpands DNA database to include all convicted felons. Includes persons found not guilty by reason of insanity. Retroactive to persons still in the penal system. Requires the state to supply sheriffs with supplies for collections.Alexander79HBNC
ENACTEDAuthorizes the Department of Corrections to collect DNA from “every individual convicted of a felony or in its custody before release from or transfer to a state correctional facility or county jail or other detention facility.”Carlton2348SBMS
Died in Committee
Expands DNA database to include all convicted felons. Includes pleas of guilty and nolo contendre. Retroactive to include probation and parole.
Caskey198SBMO
Died in Committee
Expands DNA database to include all convicted felons. Includes pleas of guilty and nolo contendre. Retroactive to include probation and parole.
Jolly54HBMO
ENACTED (in budget bill)
Makes permanent last year’s DNA database expansion to include all convicted felons. Kleis239SBMN
ENACTEDExpands the current all-felons DNA database requirement to include juveniles adjudicated delinquent.Faircloth300HBME
ENACTEDRemoves temporary provisions of the 2001 DNA database expansion to all convicted felons. Implementation is contingent on receipt of funding in the state budget. Includes post conviction testing provisions.Miller363SBMD
ENACTEDExpands DNA database to include all convicted felons. Retroactive to include currently incarcerated, probationers, and parolees.
Jacques187SBMA
ST Bill # Sponsor Summary Status
NY HB 2131 McLaughlin Requires DNA samples from any person arrested for an offense for which fingerprints are taken.Died in
Committee
NY HB 5271 FerraraExpands offender DNA database to include attempts at felonies currently required to submit DNA to the state database.
Died in Committee
NY SB 5099 Volker Requires DNA samples from any person arrested for an offense for which fingerprints are taken.Passed Senate.
Died in Assembly
OR SB 729 Minnis Expands offender DNA database to include all Class A misdemeanors Died in
Committee
PA HB 835 Maitland Expands DNA database to include all convicted felons. Retroactive to include currently incarcerated.Died in
Committee
RI HB 6104 Dennigan Expands DNA database to include all convicted felons. Died in
Committee.
RI SB 739 Damiani Expands DNA database to include all convicted felons. Passed Senate. Died in House
SC SB 263 MooreExpands DNA database to include all violent felonies (which includes drug trafficking), and any other offense carrying a maximum sentence of 5 years. Retroactive to include currently incarcerated, probationers and parolees.
Passed Senate. Died in House.
SD SB 184 AbdallahExpands offender DNA database to include all convicted felons, and juvenile adjudications Retroactive to include currently incarcerated and others still under state supervision.
ENACTED
TX HB 562 McCallRequires immediate DNA collection from capital murder (current statute is for all felons but is awaiting funding for implementation)
ENACTED
UT HB 107 AdamsExpands DNA database to include immigration violations, and those who commit a felony in another state but are incarcerated or on parole in Utah. (Amendments removed immigration violations.)
ENACTED
VT HB 133 KainenExpands DNA database to include all convicted felons, as well as misdemeanor offenses related to sexual abuse by a caregiver and possession of child pornography. Retoractive to include incarcerated, probation and parole.
Died in Committee
WV HB 2693 Stemple Expands DNA database to include all convicted felons.Passed House. Died in Senate.
State DNA Database StatutesState DNA Database Statutes(As of September 2003)
STATESex
CrimesMurder
All Violent Crimes
BurglaryDrug
CrimesAll
FelonsJuveniles
Some Misde-
meanors
Arrestees/ Suspects
Jailed Offenders
Community Corrections
Retroactive Jail & Prison
Retroactive Probation &
Parole
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware
Florida
Georgia
Hawaii
Idaho
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana *
STATESex
CrimesMurder
All Violent Crimes
BurglaryDrug
CrimesAll
FelonsJuveniles
Some Misde-
meanors
Arrestees/ Suspects
Jailed Offenders
Community Corrections
Retroactive Jail & Prison
Retroactive Probation &
Parole
Maine
Maryland
Massachusetts
Pennsylvania
Oregon
Oklahoma
Ohio
North Dakota
North Carolina
New York
New Mexico
New Jersey
New Hampshire
Nevada
Nebraska
Montana
Missouri
Mississippi
Minnesota
Michigan
STATESex
CrimesMurder
All Violent Crimes
BurglaryDrug
CrimesAll
FelonsJuveniles
Some Misde-
meanors
Arrestees/ Suspects
Jailed Offenders
Community Corrections
Retroactive Jail & Prison
Retroactive Probation &
Parole
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virginia
Washington
West Virginia
Wisconsin
Wyoming
TOTALS 50 50 46 45 37 31 34 23 4 47 47 34 20
*9th Circuit Court decision (US v. Kincaid) was applicable to federal DNA database statute for retroactive probationers and parolees
Perfecting Existing Perfecting Existing All Felons StatutesAll Felons Statutes
“All Felons” states that are not ALLALL FELONSFELONS:
Not RetroactiveColorado Delaware Georgia Iowa Minnesota
Tennessee Texas Wisconsin
No JuvenilesDelaware Iowa Maryland Mississippi
No Jailed Offenders Colorado Georgia Texas
No Community Corrections Colorado Texas
all felons vs. ALL FELONSImpacts of Legislation
Felons serving time in prison
Felons serving time in jail
Juveniles
Felons on community corrections
Retroactive Prison
Data based on Washington State figures
Retroactive Jail
Retroactive Probation/Parole
5,600 annually 5,600 annually
15,000 annually
7,952 annually
840 annually
6,1000
1,863
10,300
Total impact of all felons legislation
5,600 annually
Total impact of ALL FELONS legislation
23,792 annually18,263 retroactive
42,055 in first year
Emerging Database Emerging Database TrendsTrends
Expanding Advocacy
VictimsMassachusetts and Louisiana bills have strong victim support
Victims AssociationsJohn Walsh joins New York Governor’s push for all felons
National Association Attorneys GeneralNAAG President (California AG Lockyer) will be focusing on law enforcement technology, including DNA
International Association of Chiefs of PoliceSpring 2003 DNA Summit with OJP
Emerging Database TrendsEmerging Database Trends Misdemeanor Convictions
Some states require DNA from specific misdemeanorsAlabama, Arkansas, Arizona, Kansas, Iowa, Louisiana, Maine, Maryland, Michigan, Minnesota, New Jersey, Ohio, Oregon, Washington
• Misdemeanor pleas if originally charged with a qualifying felony offense
• Repeat violent offenders; Multiple misdemeanor convictions
• Lewd and lascivious conduct; Indecent exposure; Public indecency
• 3rd degree sexual abuse; Elder abuse
• Menacing; Harassment; Stalking
• Animal Cruelty
• Prostitution & Soliciting prostitutes
• Peeping
• False imprisonment
• 4th degree burglary
Emerging Database Emerging Database TrendsTrends
Misdemeanor Convictions
Oregon SB 729 – Class A misdemeanors.Not passed
Connecticut HB 5353 – All misdemeanor convictionsNot passed
Louisiana (multiple) – prostitution, soliciting a prostitute, peeping toms, numerous battery and assault crimes
Enacted
Vermont HB 133 – caregiver sex abuse, poss. of child pornNot passed
New Jersey (multiple) – any crime with a 6 month sentence Enacted
Colorado (2003) - Felony arrests
Nevada (2003) - Volunteered and court ordered samples into CODIS
New York (2001,2002,2003) – Fingerprintable arrests
Arizona (2002, 2003) - All arrests
Texas (2001) – Certain felony arrests and indictments
Virginia (2002) – Violent felony arrests
Connecticut (2000) - Fingerprintable arrests
Emerging Database Emerging Database TrendsTrendsArrestee Testing Proposals
Enacted Arrestee Enacted Arrestee DNA TestingDNA Testing
Certain felony indictments, or upon arrest if previous conviction for a qualifying offense
Expungement required
Sample destruction required
All felony arrests
No expungement requirement
No sample destruction requirement
Violent felony arrests after determination that probable cause exists for the arrest
Expungement required
Sample destruction required
Louisiana Senate Bill 346Louisiana Senate Bill 346 Raising the Bar
Influence of the “Baton Rouge Serial Murders” on passing SB 346?
SB 346 (enacted) gives Louisiana the strongest DNA law in the United States:
All felony arrests
Some misdemeanor arrests
No expungement requirements
Future of Arrestee Future of Arrestee DNA LegislationDNA Legislation
One of two pre-requisites seem to be necessary to pass meaningful arrestee testing legislation: Mature and successful all felons program (Virginia) Politically charged public safety paranoia (Louisiana)
Louisiana’s SB 346 might be the exception. Others might have to compromise like Virginia. Some strategies may diminish opposition:
Limit to violent and sex crimesRequire expungement if suspect is not convictedRequire sample destruction after profiling is complete
Challenges to Arrestee Challenges to Arrestee TestingTesting
Convicted offender DNA databases have been upheld, but arrestee and volunteer databases have not
Similar to a fingerprint? Or are buccal swabs invasive?
Barry Scheck (Innocence Project) has joined defense lawyers in Louisiana
Floyd M. Wagster Jr. v. Elmer Litchfield et. al
No trial date set -- Chief Judge Frank Polozola, US District Court for the Middle District of Louisiana to preside
Likely to set standards for collection and maintenance of DNA samples from non-convicted persons
ISSUE #2ISSUE #2
Post Conviction DNA TestingPost Conviction DNA Testing
Recent events have pushed this issue before policy makers
138 exonerated through the Innocence Project DNA testing
Illinois Governor places a moratorium on executions
U.S. Senator Patrick Leahy’s introduction of the Innocence Protection Act
Extensive media coverage
Post Conviction DNA Post Conviction DNA TestingTesting
Post Conviction DNA Post Conviction DNA LegislationLegislation
INTRODUCED (Since 2000)
Post Conviction DNA Post Conviction DNA LegislationLegislation
ENACTED (Since 2000)
ISSUE #3ISSUE #3
Statute of LimitationsStatute of Limitations
STATUTE of LIMITATIONS STATUTE of LIMITATIONS & FORENSIC DNA& FORENSIC DNA
Backlogs mean some investigators wait months, even years for analysis of low-priority cases.New York - 16,000 unanalyzed rape kits.
Some labs do not accept no-suspect cases
DNA is solving crimes considered “cold” for over 20 years.
Continuing need to give DNA databases a chance to work.
STATUTE of LIMITATIONS STATUTE of LIMITATIONS LEGISLATION LEGISLATION (enacted since (enacted since 20002000))
Delaware and the Federal government allow John Doe warrants in statute.
ISSUE #4ISSUE #4
Forensic DNA Funding Forensic DNA Funding
History of Federal History of Federal Funding for Forensic DNA Funding for Forensic DNA
• Prior to the DNA Backlog Elimination Act of 2000 (1999 through 2000)
1999 - $15 million “for projects to improve DNA analysis”2000 - $30 million for DNA laboratories as well as “forensic laboratory
general forensic science capabilities”
• DNA Backlog Elimination Act of 20002001 - 10 million Casework? / $11 million convicted offender 2002 - $7 million Casework/ $15 million convicted offender2003 - $25 million Casework/ $15 million convicted offender2004 - $50 million Casework? / $15 M convicted offender?
President Bush’sPresident Bush’s
DNA INITIATIVEDNA INITIATIVE
Announced March 2003
To be overseen by US Department of Justice (NIJ)
More than $1.2 billion over five years (2005 through 2009)
Proposed 2005 spending• $151 million for Debbie Smith DNA grant
At least half ($75 million) for no-suspect casework
Offender DNA analysis and collection
Crime lab capacity for DNA analysis
Suspect casework
1% for accreditation• $30 million for Sexual Assault Nurse Examiner Training• $12.5 million for training for criminal justice professionals • $15 million for research and development. • $42 million for FBI DNA programs• $2 million for Missing Persons DNA Programs • $5 million for Post Conviction DNA Testing
$257.5 Million
Advancing Justice Through DNA Technology (HR 3214, S 1700 & S
1828)
DNA INITIATIVEDNA INITIATIVEPolicy Measures
Recommends state databases to include all felons
Expand federal database to include all felons
Allows local governments to apply for DNA money directly
Apply expanded database statutes retroactively, to include those “under supervision”
Allow inclusion of other DNA samples “collected under applicable legal authority” (provision limited in language that passed the House)
Allows key board searches
State Funding SourcesState Funding Sources OFFENDER PAYS
Fees range from $25 to $500. Some states require an assessment to inmate wages. Problems include enforcement, indigent claims and re-appropriation. States: Arkansas, Hawaii, Illinois, Louisiana, Michigan, Montana, Nevada, New Mexico, North
Dakota, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, Wisconsin
EARMARKS
PUBLIC SAFETY ASSESSMENT
Significant source of funding, but not a permanent solution State appropriations (ex. Louisiana received $4 million in 2003) Federal appropriations secured by congressional delegation
Excellent source for long-term funding. Alabama -- $2 assessment in all municipal, district and circuit court cases, both criminal and
civil, in bond forfeiture proceedings, upon initiation of attachment, garnishment or execution proceedings and upon the issuance of any alias or capias warrant of arrest
Arizona -- 3% additional penalty assessment on every fine, penalty and forfeiture imposed and collected by the courts for criminal offenses and for civil traffic violations (state and local)
New Jersey -- $2 surcharge per traffic or motor vehicle violation (state and local), with a report and review in five years
The Future of DNA The Future of DNA FundingFunding
Federal• Funding will likely peak in 2009
State• Stable funding for databasing and some unsolved casework
Local • The United Kingdom experience suggests that the costs of
aggressive unsolved casework may eventually rest with local government
• In 2003, Florida and California state budget proposals included provisions to require local payment for forensic testing
• Many regional crime labs already charge for services
ISSUE #5ISSUE #5
Problems Problems
What are the Problems?
What is holding the United States back from more aggressive DNA programs?
Comprehensive databases are slow to develop
Lack of demand from Law enforcement - (IACP is working hard to fix this)
Limited local government spending
