2004 LEGISLATIVE UDATE

AAFS - ABI Users Meeting

Presented by:

Smith Alling Lane, P.S.Tacoma, WA (253) 627-1091Washington, DC (202) 258-2301London 0 (44) 798 953 8386

Tim Schellberg, J.D. tims@smithallinglane.com

February 18, 2004

Governmental Affairs

Attorneys at Law

Smith Alling LaneA Professional Services Corporation

DNA DATABASE DNA DATABASE EXPANSIONEXPANSION

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*

State DNA Database StatutesState DNA Database Statutes(As of February 2004)

STATESex

CrimesMurder

All Violent Crimes

BurglaryDrug

CrimesAll Felons Juveniles

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 Felons Juveniles

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

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

Considering limited expansion legislation (3)

Currently an all-felons state (31)Considering all felons legislation in 2004 (12)

Through a voters’ initiative*

*

2004 DNA Database 2004 DNA Database LegislationLegislation

(As of February 2004)(As of February 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 registered sex offenders, including misdemeanors. Includes those found not guilty by reason of insanity and juveniles. Effective in 2007.

Passed Senate

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

Committee

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

Committee

ID HB 520State Police

RequestExpands DNA database to include burglary and domestic violence.

Pending House vote

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

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

Passed Senate

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

Committee

MD SB 426 McFadden Expands offender DNA database to include persons charged with a crime of violence. Hearing on 3/9

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

Hearing held 02/03

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.

Passed Committee

MO SB 1000 BartleExpands DNA database to include all convicted felons. Includes no contest pleas. Retroactive to include probation and parole. Establishes $160 offender fee.

Pending Senate Vote

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.

Pending Final Vote

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

See LB 139

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

NM SB 104 Carraro Expands DNA database to include anyone who registers as a sex offender. 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 KolbExpands offender DNA database to include felony & misdemeanor convictions. Includes juveniles, jailed offenders, and probation sentences. Retroactive to include non-completed sentences. Eliminates statute of limitations for certain sex offense.

Committee

NY SB 138 Maltese Requires DNA samples from any person arrested for an offense for which fingerprints are taken. See SB 5554

NY SB 5099 Volker Requires DNA samples from any person arrested for an offense for which fingerprints are taken. See SB 5554

NY SB 5554 SkelosExpands 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.

Pending Senate Vote

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 sex offender registrations.Passed Policy

Committee

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

Committee

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

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

Passed Subcomm.

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

incarcerated.Committee

RI HB 7290 Dennigan Expands DNA database to include all convicted felons. Committee

RI SB 739 Damiani Expands DNA database to include all convicted felons. Passed Senate

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

See HB 3517

SC HB 3594 Jennings Expands offender DNA database to include all felonies, includes juveniles. Passed 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 (in 2003)

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

Passed House

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.

Committee

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

Pending House Vote

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

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

Pending House Vote

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

Committee

California DNA California DNA Initiative Initiative (#1029 - (#1029 -

www.dnayes.org)www.dnayes.org) Requires DNA from all convicted felons Probation and parole Juveniles Retroactive Includes all offenders in custody if there is a prior felony conviction

Requires DNA for all felony arrests in 5 years

Expungement is burden of the offender

Offender outsourcing required if backlog of 60 days

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

excludes parking tickets

Emerging Database TrendsEmerging Database TrendsArrestee Testing Proposals

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

Maryland (2004) – Felony chargesNew York (2001-2004) Fingerprintable arrestsOklahoma (2004) – Felony arrestsTexas (2001) – Certain felony arrests and indictmentsVirginia (2002) – Violent felony arrestsWashington (2004) – Arrests for criminal charges

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

Limit to violent and sex crimesRequire expungement if suspect is not convictedRequire sample destruction after profiling is complete

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:

FEDERAL DNA FEDERAL DNA PROGRAM PROGRAM FUNDINGFUNDING

2004 Congressional Budget2004 Congressional BudgetAs Passed Congress Jan. 22, 2003As Passed Congress Jan. 22, 2003

DNA Backlog Elimination Act $100.0 MEarmarked DNA Programming

Convicted Offender $ 5 millionUnsolved Casework $55 million Crime Lab Capacity $30 millionCriminal Justice Training $ 5 millionMissing Persons $ 5 million

Coverdell Forensics Science Improvement $10.0 MRequires study of forensic science needs

COPS Law Enforcement Technology Program Some earmarks for DNA and forensic science programs

Crime Identification Technology ActSome earmarks for DNA and forensic science programs

Law Enforcement Technology Program.--The conference agreement includes $158,407,000 for the COPS Law Enforcement Technology Program. The conference agreement adopts by reference the House report language concerning standards. Within the amounts provided under this account, grants should be provided for the following:

• $2,000,000 for the Ohio Palmprint AFIS Program;

• $500,000 for forensics, crime scene collection, and drug detection abilities upgrades at the Sandy City, UT,

Crime Lab;

• $500,000 for the Regional Crime Lab at Missouri Southern State College;

• $1,000,000 for Sam Houston State University to develop the Texas Center for Forensic Sciences, with a primary

focus in the area of digital forensic science;

• $250,000 for Washoe County, NV, Sheriff's Department of Forensics and DNA Analysis;

• $500,000 to establish a police science laboratory at Holyoke Community College, MA;

• $1,000,000 for Texas Tech University's Institute for Forensic Sciences;

• $3,000,000 to the Louisville, KY, Regional Computer Forensic Laboratory;

• $1,000,000 to Allegheny County, PA, to improve its forensic laboratories;

• $1,000,000 to the University of Alabama at Birmingham's Forensic Science Institute;

• $800,000 for the Ohio Attorney General's Office Crime Laboratory System Improvement Project;

• $500,000 for medical examiner upgrades for the Jefferson County, AL, Medical Examiner's Office;

• $450,000 to Brown University in Providence, RI, for a nanotechnology study of DNA sequencing methods;

• $3,300,000 for Marshall University's Forensic Science Program;

• $1,500,000 to the South Carolina Law Enforcement Division for continued funding to support the growing State

and local law enforcement needs in the only full service forensic laboratory in South Carolina;

• $1,000,000 for the Honolulu, HI, Police Department's Crime Lab Improvements;

• $500,000 for planning, design, and equipment for the State of Vermont Forensic Laboratory;

Crime Identification Technology Act -- Within the overall amounts recommended, the conferees expect OJP to examine each of the following proposals, to provide grants if warranted, and to submit a report to the Committees on Appropriations on its intentions for each proposal:

• $4,000,000 for West Virginia University's Forensic Identification Program;

• $1,500,000 for the South Carolina Law Enforcement Division [SLED] to continue funding for necessary

equipment for SLED's criminal justice information system; to convert existing databases and integrate systems

for accurate and rapid processing of information to support identifications for criminal and civilian purposes;

• $9,400,000 for the South Carolina Judicial Department to continue purchasing equipment for the integration of

the case docket system into a state-of-the-art comprehensive database to be shared between the court system and

law enforcement;

• $500,000 for the Minnesota Department of Public Safety's CriMNet system;

• $1,000,000 for the establishment of a forensic DNA analysis lab at North Dakota State University;

• $170,000 for the Case Management/Central Docketing System in Kansas;

• $600,000 for the Orem City, UT, Consolidated Records Management System; and

• $56,000 for the Kansas Telephone-Toll Analysis System.

2005 President’s Budget 2005 President’s Budget DNA ProvisionsDNA Provisions

PROPOSED BUDGET LANGUAGEFor technology for crime identification, $231,974,000, as follows: $175,788,000 by formula for the substantive purposes authorized under section 2(a) of the DNA Act, and for other State or Federal forensic DNA activities, of which not less than $35,000,000 shall be for increasing state and local DNA laboratory capacity, and $10,000,000 shall be available for discretionary research, demonstration, evaluation, statistics, technical assistance and training.

EXPLANATIONDNA Enhancements.—$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.

FEDERAL FEDERAL LEGISLATIONLEGISLATION

More than $1 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

PRESIDENT’S DNA INITIATAIVE: PRESIDENT’S DNA INITIATAIVE: Advancing Justice Through DNA Technology Advancing Justice Through DNA Technology

(HR 3214 and S 1700)(HR 3214 and S 1700)

Recommends state databases to include all felons

Apply expanded database statutes retroactively, to include those “under supervision”

Expand federal database to include all felons

Allows local governments to apply for DNA money directly

Allow inclusion of other DNA samples “collected under applicable legal authority”

Allows keyboard searches

PRESIDENT’S DNA INITIATAIVE: PRESIDENT’S DNA INITIATAIVE: Advancing Justice Through DNA Technology Advancing Justice Through DNA Technology

(HR 3214 and S 1700)(HR 3214 and S 1700)

2004 Federal DNA Legislation2004 Federal DNA Legislation

BILLS INTRODUCED IN THE HOUSE:

H.R. 3214 - Advancing Justice Through DNA Technology Representative James Sensenbrenner (R-WI)

(Passed by House on 11/05/2003)

BILLS INTRODUCED IN THE SENATE:

S. 1700 - Advancing Justice Through DNA Technology Senator Orrin Hatch (R-UT)

S. 1828 - Advancing Justice Through DNA Technology Senator John Kyle (R-AZ)

Sen. Orrin Hatch (R-UT)

Judiciary Committee Chair

Rep. James Sensenbrenner (R-WI)

Judiciary Crime Subcommittee Chair

Authorized but not Authorized but not CollectedCollected

How big is the problem?

What are the consequences?

Questions ?Questions ?