Legislative Establishment of Comprehensive Forensic DNA Programs Lessons Learned from the United States and Europe October 5, 2005 Brasilia, Brazil Tim Schellberg Presented by: Smith Alling Lane, P.S. Tacoma, WA (253) Washington, DC (202) London 0 (44)

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4SOLVE MORE CRIME 4PREVENT MORE CRIME 4EXONERATE THE INNOCENT 4COST / BENEFIT Offender DNA Databases

Legislative Role In Creating Successful DNA Programs Creation of a DNA Database Law 4Success is contingent on a robust DNA database 4Most democracies require legislation prior to implementing a DNA database

Case Studies United States England and Wales Europe

Case Study I United States

U.S. DNA Database Legislative Time-Line Colorado Legislature becomes the first to enact laws requiring DNA from sex offenders Virginia Legislature becomes first to enact an all crimes (minus minor crimes) DNA law Federal Bureau of Investigations (FBI) establishes guidelines on state sex offender DNA database laws - FBI promotes the passage of sex offender DNA database laws - FBI develops CODIS concept Congress enacts the DNA Identification Act -- CODIS is formally created

U.S. Time-Line (continued) U.S. Time-Line (continued) Most states have sex offender DNA database statutes A majority of states focus on expanding DNA database laws to include violent crimes and burglary states have enacted sex offender DNA database laws - 6 state DNA databases include all convictions (minus minor crimes) - The American Civil Liberties Union (ACLU) and the Criminal Defense Bar organize to oppose all felons legislation Congress enacts the DNA Backlog Elimination Act (appropriates $140 million to states for DNA analysis) Preliminary data shows the success of Virginia’s DNA database - ACLU virtually disappears from all crimes (minus minor crimes) - A surge in all crimes legislation occurs - 7 more states enact laws, for a total of 14 states with all crimes (minus minor crimes)

U.S Time-Line (continued) additional states pass all crimes (minus minor crimes) legislation, for a total of 31 - Large federal appropriation pending - President’s DNA Initiative is introduced A total of 43 states pass have passed all crimes (minus minor crimes) legislation - President’s DNA Initiative of $1 Billion begins implementation - California implements comprehensive arrestee DNA testing law - A total of 5 states have arrestee testing laws. A push for nationwide arrestee testing laws begins

United States Database Size –3 Federal and 50 state databases –Common themes exist, but all 50 states have different database legislation –2.4 million offender samples –114,000 crime scene samples –43 States collect from all convicted offenders, except minor crimes –Remaining 7 States collect from all violent crimes and burglary –Most of the remaining 7 States should be collecting from all convicted offenders by 2007 –5 States DNA from arrested offenders –No purging required for convicted offenders

United States Funding –States fund most of the costs –Federal government operates central database –Local governments pay very little –$1 Billion federal investment through “President Bush’s DNA Initiative” Problems -Backlogs are significant – Over 500,000 casework samples are in backlog (Attorney General’s Backlog Report) -No-suspect collection and casework is not very aggressive – but getting better -Lack of Law Enforcement Training – They are slow to understand the power of an offender/suspect database

U.S. State DNA Database Statutes (As of September 2005) **  Louisiana  Kentucky  Kansas  Iowa     Indiana  Illinois  Idaho  Hawaii  Georgia  Florida  Delaware    Connecticut  Colorado  California  Arkansas  Arizona  Alaska  Alabama Retroactive Probation & Parole Retroactive Jail & Prison Community Corrections Jailed Offenders Arrested / Indicted Some Misde- meanors Juveniles All Felons Drug Crimes Burglary All Violent Crimes Murder Sex Crimes STATE    

Sex Crimes Murder All Violent Crimes Burglary Drug Crimes All Felons Juveniles Some Misde- meanors Arrestees/ Suspects Jailed Offenders Community Corrections Retroactive Jail & Prison Retroactive Probation & Parole Maine  Maryland  Massachusetts 

STATE Sex Crimes Murder All Violent Crimes Burglary Drug Crimes All Felons Juveniles Some Misde- meanors Arrestees/ Suspects Jailed Offenders Community Corrections Retroactive Jail & Prison Retroactive Probation & Parole Rhode Island  South Carolina  South Dakota  Tennessee  Texas  Utah  TOTALS  Wyoming  Wisconsin  West Virginia  Washington  Virginia  Vermont 

Growth To All Convicted Crimes, except minor crimes States States States 2003 – 30 States 2004 – 37 States 2005 – 43 States

Arrestee Legislation Enacted arrestee testing laws (5) (Accounts for 25% of US population)

Enacted Arrestee DNA Testing Certain felony indictments, or upon arrest if previous conviction for certain offenses Expungement required Sample destruction required All arrests some minor crimes No expungement requirement No sample destruction requirement Violent arrests with probable cause Expungement required Sample destruction required Some violent felony arrests now, all arrests (minus minor crimes) in five years Expungement required No sample destruction requirement absent expungement Various violent and sex crime arrests, plus burglary, upon finding of probable cause Expungement required Sample destruction required

Virginia “Cold Hits” on the DNA Database All Drug Offenders to Type of Crime Solved

Virginia “Cold Hits” on the DNA Database Forgery to Type of Crime Solved

Virginia “Cold Hits” on the DNA Database Juveniles to Type of Crime Solved

Your Legislation Controls the “Hit Rates” Estimated Hit Rates Based on United States Data Sex offenders 5% Sex offenders & Violent offenders10% Sex offenders, Violent offenders and Property crimes 20% All crimes, minus minor crimes40% All crimes 50% All arrestees 70%

Privacy Issues Overview 4Not much concern for convicted offenders 4Significant concern for arrested offenders Legislative Provisions 4Purge the sample, keep the profile 4Data handling protocals 4Penalties for misuse of data 4Saliva Swabs instead of Blood Future Privacy Issues 4Family member hits

Chicago study of 8 offenders 60 preventable violent crimes, including 30 rapes and 22 murders The Power to Prevent Crime: A New Focus in the United States 8 offenders Offenders accounted for 21 prior arrests, only 7 of which were violent felony arrests – two-thirds of prior arrests were for non-violent felonies. 60 unnecessary victims

Cost Benefits of DNA Databases Ray Wickenheiser Report sic%20DNA.pdf $Billions saved to government and society by having comprehensive DNA database and casework program

Case Study II England and Wales

England and Wales Database Size 4One national database - 3 million offender samples 4Operated by the Forensic Science Service (FSS) 4Legislation requires permanent databasing of all people arrested 4234,500 Crime Scene samples 4Hit Rate is current 55% and expected to rise Funding 4Strong financial support from national government to operate FSS 4Local governments also invest heavily in casework, by reimbursing FSS for casework Collection and casework 4Aggressive crime scene casework 4Adds between 1,000 to 1,500 profiles to the crime scene database each week 3Over 1,700 crime scene to crime scene or suspect to crime scene hits per week

DNA Analysis Performed by the FSS

Crime Scenes Matching One or More Individuals Offense code Total Abduction And Kidnapping Aggravated Burglary Aggravated Burglary Alc Tech Defense01113 Alcohol Technical Defenses02114 Arson/Fire Arson/Fire Investigations Attempted Murder Auto-Crime Blackmail Break In Offences Burglary In A Dwelling C&E Export11002 C&E Fraud00011 C&E Import Drugs02103 C&E Import Other10001 C&E Projects10102 Corporate General Services Criminal Damage03104

Offense code Total Driving After Consuming Drugs Drugs Services – Other Explosives Gbh Assault01102 High Value Fraud Import/Export Controlled Drugs Less Serious Assault Low Value Fraud And Forgery Murder/Manslaughter Other Serious Other Sexual Offences Other Specialist Services04105 Other Suspicious Death Other Volume Possession Of Controlled Drugs Possession Of Firearms Production Of Controlled Drugs Public Order Rape Robbery Serious Robbery Volume Rta Alcohol Supply Of Controlled Drugs Supply Of Controlled Drugs (Std) Terrorism02305

Offense code Total Theft24208 Theft From A Vehicle Theft Inc Handling Stolen Goods Theft Of A Vehicle Traffic Offences Fatal Traffic Offences Non-Fatal Unknown Use/Trade/Short/Convert Firearm Wounding/Gbh

Turn Around Time (in Days) by Type of Case BurglaryDrugsAssaultMurderSexual Offense

Court Processes Outcome Courts process cost effective More ‘Guilty’ pleas Value measured Crime reported DNA DB Match Report DNA Analysis SOCO attends Sample submission Arrest Charge < 2days< 1day3 days days < 3 days Volume Crime Program A partnership between Police, Forensic Science and the Courts to process Criminals Nationally burglary and car crime has been cut by 40%

Case Study III Europe

Europe See New EU Report for Most recent Data Current Database Laws 4Laws have little in common 4No coordination 4Extensive purging required The Future of European Databases 4Strong recognition that the future is suspect databases 4Effort underway to create a European Union Database standard 4European Union evaluating a mechanism to facilitate the sharing of profiles

DNA Collection from Convicted Offenders

Austria - Any recordable offense Belgium – Specific offenses against persons Czech Republic – all convicted offenders except misdemeanors England & Wales – Any recordable offense France - Specific offenses Finland – Specific violent offenses Germany - Specific offenders and with court order Hungary – More than 5 years of prison, plus other specific offenses Netherlands - More than 4 years of prison, but only if collected during investigation Norway – Serious crimes with at least 2 years of prison Sweden – More than 2 years of prison Switzerland – More than 1 year of prison Convicted Offender Criteria

DNA Collection from Suspects Suspected or arrested for any recordable offense Suspected or arrested for severe crimes or sex assault

Austria – Any recordable offense Czech Republic – May be collected only loaded on database if charged England & Wales – Any recordable offense France - Specific offenses Finland – More than 1 year of prison, plus other specified offenses Germany - Specific offenders and with court order Hungary – More than 5 years of prison, plus other specific offenses Netherlands - More than 4 years of prison and with court order Northern Ireland – Any recordable offenses Scotland - Anyone lawfully arrested or detained. Criteria used by police is: sex crimes, crimes of violence, burglary, attempts and most thefts Sweden – All suspects Switzerland – Any suspicious person with regard to a crime Suspect Criteria

Convicted Offender Profile Removal No RemovalRemoved after specified time

Austria – Indefinite Belgium – 10 years after death Czech Republic – Subject to 3 year review, removed after 80 England & Wales – Indefinite Finland – 1 year after death France – 40 years after sentence, or until the age of 80 Germany - Reviewed after 10 years for adults, 5 years for juveniles. Indefinite retention possible. Hungary – Until acquitted or charges abandoned Netherlands - 20 yrs if convicted of a crime with year sentence, 30 yrs if convicted of a crime with sentence of more than 6 yrs. Norway – 2 years after death, or upon finding of innocence Sweden – 10 years after sentence is served Switzerland – After 30 years, if no further convictions, or upon death Convicted Offender Removal Criteria

Suspect Profile Removal No RemovalRemoved when acquitted or charges dropped

Austria – When acquitted England & Wales – Indefinite Finland – 1 year after notification of acquittal or charges dropped France – Upon request from prosecutor or suspect if not convicted or no evidence of an offense Germany - Reviewed after 10 years for adults, 5 years for juveniles. Indefinite retention possible. Hungary – 20 years after sentences expires Netherlands - 20 yrs if convicted of a crime with year sentence, 30 yrs if convicted of a crime with sentence of more than 6 yrs. Northern Ireland - No legal requirement for expungement. Profiles of those dead or over 100 years of age are removed. Scotland – Indefinitely unless acquitted or charges dropped Sweden – Saved until allowed to register the suspect as a convicted offender Switzerland – Upon exclusion as a suspect, death, or five years after sentence completed Suspect Removal Criteria

Other Countries Other Countries 4Resources EU Report Interpol DNA Questionnaire 4Established and growing offender databases (Other than US, UK and Europe): Australia New Zealand Canada South Africa 4Working towards passing offender database legislation: ÜConfirmed JapanChinaIsrael IndiaBrazil ÜUnconfirmed South KoreaRussia Malaysia Argentina TaiwanChile Philippines Mexico Thailand

Lessons Learned for Brazil

4Create a database law that maximizes the “hit rate” –Make database a priority –Include all suspects, not just convicted offenders –If privacy problems arise for including suspects, destroy suspect sample after profiling –Avoid purging profiles from database –Include juveniles –Include all categories of incarceration –Do not take incremental steps –Retroactive Provision: Include convicted offenders that are currently incarcerated or under supervision. Add them immediately. –Utilize private laboratory outsourcing to reduce initial costs –Use most efficient collection method (saliva swabs)

Lessons Learned for Brazil 4Address the Backlog –Understand the politics of the backlog –Assess the backlog –Rapes and Murders first –Focus on old suspects

Lessons Learned for Brazil 4Collection Strategies –Implement “Rape Victim DNA Program” Instant results Generates strong public support –National intensive effort to make law enforcement aware of DNA –Utilize free DNA collection training guides produced by the United States and England/Wales –Avoid testing delay: Consider outsourcing more basic cases, such as Rape Kits

Lessons Learned for Brazil 4Funding strategies –Offender/suspect database: Collect now - analyze later –Offender/suspect database: Offender pays for inclusion costs –Casework: England and Wales model - Local government pays for casework –Casework: United States - Large grant program from federal government

Lessons Learned for Brazil 4Consider an Innocence Protection Program –138 convicted murderers exonerated in the United States –Used as a mechanism to gain support of those that typically oppose the databases 4Utilize free scientific resources -FBI / FSS / Interpol Standards -CODIS Software

Lessons Learned for Brazil 4Develop Strong Support Network –Make sure agency controlling databases are actively supportive –Educate local law enforcement and prosecutor leaders –Gain victim group support –Address civil rights concerns –Educate relevant legislators and legislative staff

Questions ?