2004 Forensic DNA Legislative Update and the “Attorney Generals Report on the DNA Evidence Backlog” Fifth Annual DNA Grantees Workshop Washington, DC June

2004 Forensic DNA Legislative Update and the “Attorney Generals Report on

the DNA Evidence Backlog”

Fifth Annual DNA Grantees Workshop

Washington, DC June 29, 2004

Presented by:

Smith Alling Lane, P.S.Tacoma, WA (253) 627-1091

Washington, DC (202) 258-2301London 0 (44) 798 953 8386

Tim Schellberg, [email protected]

Governmental Affairs

Attorneys at Law

Smith Alling LaneA Professional Services Corporation

ISSUE #1ISSUE #1

CONVICTED OFFENDER CONVICTED OFFENDER

DNA DATABASE EXPANSION DNA DATABASE EXPANSION

20042004

Database Expansion’s Relationship Database Expansion’s Relationship to Casework Utilizationto Casework Utilization

Increased offender testing = increased casework

Legislatively created database law scenariosNo database All convicted violent offendersAll convicted felons Suspects

Legislature

SCENARIO ISCENARIO I

No Database LegislationNo Database LegislationPer 5 Million in State Population

1,000 annual casework samples

No offender samples

SCENARIO II SCENARIO II All Violent Offenders LegislationAll Violent Offenders Legislation

Per 5 Million in State Population

0

1,000

2,000

3,000

4,000

5,000

6,000

7,000

8,000

1st Year 2nd Year 3rd Year 4th Year 5th Year

Samples Tested

On the eighth year after the passage of the legislation, an estimated 2,500 annual casework samples will be tested

Casework Samples

Offender Database Samples

0

500

1,000

1,500

2,000

2,500

1st Year 2nd Year 3rd Year 4th Year 5th Year 6th Year 7th Year 8th Year

Samples Tested

SCENARIO III SCENARIO III All Felons LegislationAll Felons LegislationPer 5 Million in State Population

0

5,000

10,000

15,000

20,000


Samples Tested

On the eighth year after the passage of the legislation, an estimated 7,500 annual casework samples will be tested.

0

1,000

2,000

3,000

4,000

5,000

6,000

7,000

8,000


Samples Tested


Casework Samples

SCENARIO IV SCENARIO IV All Suspects LegislationAll Suspects Legislation

Per 5 Million in State Population

0

20,000

40,000

60,000

80,000

100,000

120,000

140,000

160,000


Samples Tested

On the eighth year after the passage of the legislation, an estimated 16,000 annual casework samples will be tested

0

2,000

4,000

6,000

8,000

10,000

12,000

14,000

16,000


Samples Tested


Casework Samples

Summary of Legislation Scenarios Summary of Legislation Scenarios 270 million US population270 million US population

0

5,000,000

10,000,000

15,000,000

20,000,000

25,000,000

Suspects All Felons Violent Felons No Database

Samples Tested

0

100,000

200,000

300,000

400,000

500,000

600,000

700,000

800,000

900,000

Suspects All Felons Violent Offenders No Database

Samples Tested

CaseworkEstimated number of samples tested occurring on the eighth year after the passage of the legislation

Offender Samples

Estimated number of samples tested during the five year period after the passage of the legislation

The Recent Trend To All FelonsThe Recent Trend To All Felons1999 - 6 States 2000 - 7 States

2006 - 45 States (est.) -- assuming data and funding

2001 - 13 States

2002 - 22 States 2003 – 31 States 2004 – 34 StatesLegislation pending in 5 states

2004 Legislative Session:2004 Legislative Session:DNA Database Expansion BillsDNA Database Expansion Bills

Enacted limited expansion legislation (2)

Currently an all-felons state (31)Considering all felons legislation in 2004 (5)

Through a voters’ initiative*

*

Enacted all felons expansion legislation in 2004 (3)

Failed to pass all felons legislation (4)

California DNA Initiative California DNA Initiative (#1029 - www.dnayes.org)(#1029 - www.dnayes.org)

Requires DNA from all convicted felons Probation and community corrections Juveniles Fully retroactive (including probationers & parolees) Includes all offenders in custody if there is a prior felony conviction

Requires DNA for all felony arrests in 5 years

Fee of $1 per every $10 for court ordered criminal fines Includes infractions of state vehicle code and local ordinances, but

excludes parking tickets. Money available to fund casework (Section IV, subsection 3).

Offender outsourcing required if backlog of 60 days

Database StatutesDatabase StatutesSTATE

Sex Crimes

MurderAll

Violent Felons

BurglaryDrug

CrimesAll Felons Juveniles

Some Misde-

meanorsArrestees

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

Maine

Maryland

Massachusetts

STATESex

CrimesMurder

All Violent Crimes

BurglaryDrug


SomeMisde-

meanorsArrestees

Jailed Offenders




Parole

Michigan

Minnesota

Mississippi

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Ohio

Oklahoma

Oregon

Pennsylvania

Rhode Island

South Carolina

South Dakota

Tennessee

Texas

Utah

STATESex

CrimesMurder

All Violent Crimes

BurglaryDrug


Some Misde-

meanorsArrestees

Jailed Offenders




Parole

Vermont

Virginia

Washington

West Virginia

Wisconsin

Wyoming

TOTALS 50 50 47 46 38 34 31 26 3 48 48 36 22

Database LegislationDatabase LegislationAs of June 24, 2004As of June 24, 2004

ST Bill # Sponsor Summary Status

CA HB 1444 Benoit Expands DNA database to include all levels of sex offenders. Failed in Committee

CA SB 284 Brulte Expands DNA database to include all convicted felons. Committee

CA SB 883 MargettExpands DNA database to include misdemeanor sex offenders, or anyone required to register as a sex offender. Includes those found not guilty by reason of insanity and juveniles. Effective January 1, 2007.

Passed Senate

CA SB 1737 SpeierExpands DNA database to include all felons, except for non-violent drug felons who are eligible for diversion treatment. Includes juveniles, all sentences, and applies retroactively.

Passed Senate

DE HB 426 Smith Expands DNA database to include anyone arrested for a crime for which fingerprints are required. Committee

HI HB 1804 MarumotoExpands DNA database to include all convicted felons. Retroactive to include probationers and parolees.

Died in Committee

HI HB 2754 PendletonExpands DNA database to include all convicted felons. Retroactive to include probationers and parolees.

Died in Committee

HI HR 66-4 MarumotoForms an interim committee to study issues of expanding the state DNA database and improving

the collection and analysis of DNA samples.Died in Fiscal Committee.

HI HR 97-4 MarumotoForms an interim committee to study issues of expanding the state DNA database and improving

the collection and analysis of DNA samples.Died in Fiscal Committee.

ID HB 520State Police

RequestExpands DNA database to include burglary and felony domestic violence. ENACTED

ID HB 796State Affairs Committee

Adds statutory rape to the DNA database. See HB 520

IL HB 4825 LaVia Expands offender DNA database to include felony arrests. Passed House

IL HB 6884 MillnerExpands offender DNA database to persons found not guilty by reason of insanity for felony crimes (current statute requires all felony convictions).

Committee

IN SB 17 ZakasExpands DNA database to include residential entry and incest, and attempts to commit crimes. Includes probation sentences, and retroactive to include those currently incarcerated.

Died in House Fiscal Committee

KY HB 119 MeeksExpands DNA database to include all convicted felons. Includes juveniles and retroactive to

include probation and parole.Died in Committee


MD SB 426 McFadden Expands offender DNA database to include persons charged with a crime of violence. Withdrawn

MO HB 931 BivinsExpands DNA database to include all convicted felons. Includes juveniles and no contest pleas. Retroactive to include probation and parole.

See SB 1000

MO HB 1094 JollyExpands DNA database to include all convicted felons. Includes no contest pleas. Retroactive to include probation and parole. Establishes $160 offender fee.

See SB 1000

MO SB 1000 BartleExpands DNA database to include all convicted felons. Includes no contest pleas. Retroactive to include probation and parole. Establishes $30 felony offender fee, and $15 misdemeanor fee.

ENACTED

MO SB 1026 MathewsonExpands DNA database to include all convicted felons. Limits collection from county jail inmates to only violent and sex offense convictions.

See SB 1000

NE LB 139 JohnsonClarifies that the state DNA database can be used for forensic casework related to missing persons, relatives of missing persons and unidentified human remains.

VETOED (due to unrelated

provision)

NE LB 662 BeutlerExpands DNA database to include all convicted felons and juvenile felony adjudications. Retroactive to include persons currently incarcerated.

See LB 139

NJ HB 2747 JohnsonExpands offender DNA databases to include violent felony arrests and for disorderly conduct convictions.

Committee

NJ SB 1513 SaccoExpands offender DNA databases to include violent felony arrests and for disorderly conduct convictions.

Committee

NM HB 475 Foley Expands DNA database to include anyone who registers as a sex offender. Died in Committee

NM SB 104 Carraro Expands DNA database to include anyone who registers as a sex offender. Died in Committee

NY HB 2131 McLaughlinRequires DNA samples from any person arrested for an offense for which fingerprints are taken, and from any defendant in a criminal action.

Committee

NY HB 5271 FerraraExpands offender DNA database to include attempts at felonies currently required to submit DNA to the state database.

Committee

NY HB 9356 Kolb

Expands offender DNA database to include felony and misdemeanor convictions. Includes juveniles, jailed offenders, and probation sentences. Retroactive to include non-completed sentences. Eliminates statute of limitations for certain sex offense. Includes post conviction DNA testing provisions.

Committee

NY HB 10543 Lentol Expands offender DNA database to include crimes of terrorismPassed Policy

Committee


NY SB 138 Maltese Requires DNA samples from any person arrested for an offense for which fingerprints are taken. See SB 7659

NY SB 5099 Volker Requires DNA samples from any person arrested for an offense for which fingerprints are taken. Passed Senate

NY SB 5554 Skelos

Expands offender DNA database to include felony and misdemeanor convictions. Includes juveniles, jailed offenders, and probation sentences. Retroactive to include non-completed sentences. Eliminates statute of limitations for certain sex offense. Includes post conviction DNA testing provisions.

Passed Senate

NY SB 7659 VolkerExpands offender DNA database to any sex offense (including misdemeanors), and a significant number of other crimes including identity theft and soliciting a prostitute.

ENACTED

OH SB 372 StrahornExpands offender DNA database to include all felony convictions. Includes juveniles, and misdemeanor convictions that arose out of specified felony charges. Retroactive upon notification that the lab is ready for additional samples.

Committee

OK HB 1853 Turner Expands offender DNA database to include all assault with intent to kill and bombing. ENACTED

OK SB 1362 GummExpands offender DNA database to include all felony convictions. Includes juveniles. Retroactive to include currently incarcerated.

Died in Committee

OK SB 1417 Nichols Expands offender DNA database to include all felony convictions and felony arrests. Died in Committee

OK SB 1447 HeltonExpands offender DNA database to all violent offenders. Include persons receiving deferred judgment or suspended sentences.

VETOED.

PA HB 835 MaitlandExpands DNA database to include all convicted felons. Retroactive to include currently incarcerated.

Passed House. Passed Senate Committee.

PA HR 585 WeberUrges the US Congress to allow DNA samples of “other persons whose DNA samples are collected under applicable legal authority” into the national DNA database.

ADOPTED

RI HB 7290 Dennigan Expands DNA database to include all convicted felons. Hearing on 3/24

RI SB 2921 Damiani Expands DNA database to include all convicted felons. Passed Senate. Passed House Committee.

SC HB 3517 OwensExpands DNA database to include all convicted felons. Retroactive to include currently incarcerated, probation and parole.

See HB 3594

SC HB 3594 Jennings Expands offender DNA database to include all felonies, includes juveniles. ENACTED


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.

See HB 3594

VA HB 776 McDougleExpands offender DNA database to include persons arrested for attempted violent felonies (violent felony arrestees already included under current law)

ENACTED

VT HB 133 KainenExpands DNA database to include all convicted felons, and misdemeanor offenses related to sexual abuse by a caregiver and possession of child pornography. Retroactive to include incarcerated, probation and parole.

Died in Committee

WA HB 2847 Miloscia Expands offender DNA database to include persons arrested on criminal charges. Died in Committee

WA HB 2969 O’BrienExpands offender DNA database to include prostitution and patronizing a prostitute, and persons charged with a database offense but who pled guilty to another offense. Includes persons found not guilty by reason of insanity.

Passed Policy Committee. No

further action taken.

WV HB 2693 Stemple Expands offender DNA database to include all convicted felons. Language is permissive. See HB 4156

WV HB 4156 WebsterExpands offender DNA database to include all convicted felons. Language is permissive. Provides a right to post conviction DNA testing.

ENACTED

WV SB 312 KesslerExpands offender DNA database to include all convicted felons. Language is permissive. Provides a right to post conviction DNA testing.

Committee

ISSUE #2ISSUE #2

ARRESTEE TESTINGARRESTEE TESTING

Emerging Database TrendsEmerging Database TrendsArrestee Testing Proposals

Arizona (2002, 2003) – All arrestsCalifornia (2004) – Felony arrestsColorado (2003) – Felony arrestsConnecticut (2000) – Fingerprintable arrestsDelaware (2004) – Fingerprintable arrestsIllinois (2004) – Felony arrestsLouisiana (2003) – Felony arrests and some misdemeanors

Maryland (2004) – Felony chargesNew Jersey (2004) – Violent felony arrestsNew York (2001-2004) Fingerprintable arrestsOklahoma (2004) – Felony arrestsTexas (2001) – Certain felony arrests and indictmentsVirginia (2002; 2004) – Violent felony arrests; arrests for

violent felony attemptsWashington (2004) – Arrests for criminal charges

Introduced legislation Enacted legislation

What Will Impact the What Will Impact the Arrestee DNA Debate?Arrestee DNA Debate?

Crime Prevention Data

Constituent Reaction The California Initiative

Sample Destruction

Arrestee Sample DestructionArrestee Sample DestructionOptions Destroy all samples Save the convicted samples and destroy the arrestee samples

PROS

CONS

Likely required for arrestee legislation to pass

Reduces chances of unconstitutionality

Hinders technology changes Makes quality control difficult

ISSUE #3ISSUE #3

2003 FEDERAL LEGISLATION2003 FEDERAL LEGISLATION

Advancing Justice Through Advancing Justice Through DNA Technology ActDNA Technology Act

Titles I and II – President’s DNA Initiative

HR 3214Rep. Sensenbrenner (R-WI)

S 1700Sen. Hatch (R-UT)

S 1828Sen. Kyl (R-AZ)

$1 billion over 5 years All felon federal and military crime databases Allow all legally collected samples (juveniles, arrestees) Permit local agencies to apply for the DNA money

Titles III – Innocence Protection ActPost conviction DNA testing Grants for counsel improvements during capital trials

More Than $1 Billion More Than $1 Billion

Over 5 Years (2005 - 2009)Over 5 Years (2005 - 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

The Politics of The Politics of the DNA Initiativethe DNA Initiative

The “Deal” vs. DOJ / White House / Kyl’s Camp

2005 DNA Appropriations2005 DNA Appropriations President’s Request $175.7 million

$175.788 million is proposed for State and local crime laboratories to reduce and eventually eliminate backlogs of DNA casework samples (including crime scene and convicted offender samples). Effective backlog reduction requires both the direct defray of sample analysis costs to meet immediate needs, and improvements, especially automation upgrades, in forensic laboratories to increase their capacity, eventually enabling them to keep abreast of their DNA analysis without additional Federal funding. These efforts will help prosecute the guilty and exonerate the innocent. The amount requested for this effort reflects a nearly $81 million increase over the level of resources in the 2004 Omnibus.

Senate is undecided but leaning towards full funding Senate Concurrent Resolution 95 on the 2005 federal budget includes language supporting

funding the DNA Initiative at the President’s requested amount. Kyl letter to Appropriations Committee Leahy & Hatch letter to Appropriations Committee

House 2005 Justice Dept. Appropriations $175.7 million DNA Initiative. The Committee recommendation is $175,788,000 for the Administration’s DNA Initiative, $76,840,000 above the current year level and the same as the request.

The recommendation fully funds the second year of the Administration’s initiative to eliminate the DNA backlog in five years. The Committee recognizes that DNA technology will allow law enforcement to identify certain criminals quickly and accurately, solve additional crimes, especially violent crimes such as murder and rape, and identify persons mistakenly accused or convicted of crimes. According to a report submitted to Congress by the Attorney General on April 6, 2004, the total number of crime cases with possible biological evidence either still in the possession of local law enforcement or backlogged at forensic laboratories is over 542,700, which includes 221,000 with possible evidence in rape and homicide cases. The report also found that a significant proportion of law enforcement agencies continue to misunderstand the potential benefits of DNA testing. The Committee directs the Department to provide an annual report to the Committee on the achievements of the DNA Initiative in addressing the backlog and solving crimes.

ISSUE #5ISSUE #5

NIJ DNA ASSESSMENTNIJ DNA ASSESSMENT

Forensic DNA Forensic DNA Assessment ProjectAssessment Project

NIJ Grant

Conducted by Smith Alling Lane, in partnership with Washington State University

Project Goals

…to provide a general assessment of the use of forensic DNA by law enforcement

…to give a base from which extrapolations may be made projecting the national DNA backlog (not a national census)

…to educate on the importance of expanded, operational forensic DNA programs and databases


Final Report Topics

•Backlogs How big is it Why do we have them

•Related growth problems Storage Education

•Effectiveness of DNA programs CODIS data (solving crimes, preventing crimes) Efficiencies & costs

•Comparative analysis to the United Kingdom


Assessment questionnaire sent to State DNA labs (100%)Local DNA labs (100%) Local law enforcement agencies (50+ %)

• All agencies with 100 or more officers (approximately 1000).

• A statistically valid sampling of remaining agencies (approximately 2000).

• Indian tribes

TIMELINE

Released to Congress and the Public in April 2004

Forensic DNA Assessment Forensic DNA Assessment ResultsResults

Backlogs

Law EnforcementHomicide – 52,000 cases

Rape – 169,000 cases

Property Crime – 264,000 cases

State Labs34,700 cases

Local Labs 22,600 cases


Reasons why law enforcement does not submit cases DNA not considered a tool for crime investigations - 50.8%

No suspect has been identified - 31.4% Prosecution had not requested testing - 9.2% Suspect identified but not yet charged - 10.2%

Poor funding - 23.6% Labs can’t produce timely results - 10.4%

Backlog timeline for no suspect casework State labs - 24 weeks Local labs – 30 weeks


Preventable CrimesWho would be alive or not victimized by a sexual assault if:

State legislature had passed and implemented all felons legislation

Casework was completed in a timely manner

Focused on states without all felons laws

Case StudyCase Study MassachusettsMassachusetts

THREE PREVENTABLE RAPE/MURDERS

In late 1997, a woman was found raped and murdered in her home in Springfield. In early 1998, another three women were found raped and murdered – one in her home, two others in alley ways. All four murders were linked through DNA, and due to the unique positioning of the bodies which became the offender’s “signature.” Following the fourth murder, a voluntary DNA sample was collected from a person who had become a suspect in the case. Within a few weeks, that suspect was tied through a DNA match to the crimes.

The suspect’s criminal record included two prior felony convictions in 1996 – one for larceny and the other for breaking and entering, for which he was sentenced to community supervision. If Massachusetts had required a DNA sample for either of the 1996 non-violent felony convictions, a DNA match could have been obtained after the first rape/murder, thereby preventing the subsequent three rape/murders.

Case StudyCase Study MissouriMissouri

In March of 1988, this offender committed a series of five robberies and was sentenced to fifteen years for robbery and armed criminal action. In June 1994, he was paroled after serving five years and three months of his sentence. Unfortunately, Missouri does not require DNA from convicted robbers, and this offender was released without submitting a DNA sample for the state database. With a DNA sample in the database, this offender could have been identified as the killer of the first victim long before a minimum of eleven additional women lost their lives.

ELEVEN PREVENTABLE RAPES AND MURDERS

From April of 2001 through May of 2002, police began finding the bodies of women who had been raped and murdered in the St. Louis/western Illinois area. Investigators recovered semen from the victim’s bodies that was sent for crime laboratory analysis. The DNA profiles from the semen recovered from the victims all matched. A person known to the police became a suspect in the crimes after he wrote an anonymous letter to a local newspaper. An internet-generated map enclosed with the letter led to some computer forensics that eventually identified the specific computer that downloaded the map. The suspect was ultimately arrested in June of 2002 when police found videotapes of himself killing and torturing his victims. On the videotape, the suspect states that he had just committed “murder number seventeen”. Police have conclusively linked 12 victims to this offender thus far, and believe the number could be as high as 20. This individual committed suicide shortly after his arrest.

Case StudyCase Study New JerseyNew Jersey

The suspect’s criminal record included two felony convictions for theft and forgery related offenses in New Jersey, and nine felony convictions for theft, forgery, and receiving stolen property in Pennsylvania. If the suspect had been required to give a DNA sample for any of these crimes in either state, he could have been identified after the first assault, thereby preventing the subsequent four rapes.

FOUR PREVENTABLE RAPES

Between April of 2002 and May of 2003, five women were raped in the Trenton area. DNA testing linked all five offenses to the same unknown perpetrator. After police released a composite sketch of the suspect in 2003, nearly 75 tips were called in identifying the same person. In June 2003, U.S. Marshals eventually arrested the suspect in Pennsylvania on a parole violation warrant that was issued in July of 2002. Trenton Police obtained a DNA sample from the suspect through a court order, and thanks to expedited testing at the state laboratory the man was linked to the crimes within a few days. The charges on 16 counts involving five victims are pending as the suspect awaits extradition to New Jersey from Pennsylvania.

Forensic DNA Assessment Forensic DNA Assessment Project - ResultsProject - Results

Over 1,700 crime scene to crime scene or suspect to crime scene hits per week

40 percent chance of obtaining a match between a crime scene profile and a “criminal justice” (arrestee or suspect) profile loaded into the database

Adds between 8,000–10,000 arrestee or suspect profiles to the database per week

Adds between 1,000 to 1,500 crime scene profiles to the database per week

Increases the suspect identification rate for domestic burglary from 14 to 44 percent when DNA is available at the crime scene

Solves 0.8 other crimes for each crime solved with DNA

Prevents 7.8 other crimes for each custodial sentence resulting from a DNA based conviction

Will contain profiles of the entire “criminally active population” by March 2004

England and WalesEngland and Wales

Questions ?

www.dnaresource.com

[email protected]

Documents

2004 Forensic DNA Legislative Update and the “Attorney Generals Report on the DNA Evidence Backlog” Fifth Annual DNA Grantees Workshop Washington, DC June