2003 LEGISLATIVE UDATE Southern Association of Forensic Scientists Savannah Meeting May 5, 2003 Presented by: Smith Alling Lane, P.S. Tacoma, WA (253) Washington, DC (202) London 0 (44) Lisa Hurst

Governmental Affairs Attorneys at Law Smith Alling Lane A Professional Services Corporation

FORENSIC DNA ISSUES & THE STATE LEGISLATURES  Offender DNA Databases  Statute of Limitations / John Doe Warrants  Related Legislation  Post Conviction DNA Testing

ISSUE #1 OFFENDER DNA DATABASES

U.S. DNA Legislative Time-Line California Legislature passes law to collect blood from certain offenders - “DNA” is not mentioned in statute Colorado Legislature becomes the first to enact laws requiring DNA from sex offenders Virginia Legislature becomes first to enact an all felons DNA law 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 Majority of states begin passing laws to create DNA databases for sex offenders

Time-Line (continued) Congress enacts the DNA Identification Act -- CODIS is formally created 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 place A majority of states begin focusing on expanding their database laws to include violent crimes and burglary 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

Time-Line (continued) Congress enacts the DNA Backlog Elimination Act (appropriates $140 million to states for DNA analysis) Preliminary data showing the success of the Virginia DNA database is released - A surge in all felons legislation occurs - 7 more states enact laws, for a total of 14 states with all felon laws All felons legislation surge continues - 9 more states laws, for a total of 23 states with all felon laws - Continued reliance on both Virginia data and federal funds - Congress discusses additional DNA legislation - Virginia enacts legislation requiring DNA from arrestees

The Recent Trend To All Felons States States States States (est.) -- assuming data and funding States States 2003 – 26 States Legislation pending in 14 states

State DNA Database Statutes State DNA Database Statutes (As of May 1, 2003) 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 Alabama  Alaska  Arizona  Arkansas  **  California  Colorado  Connecticut  Delaware  Florida  Georgia  Hawaii  Idaho  Illinois  Indiana  Iowa  Kansas  Kentucky  Louisiana 

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  Michigan  Minnesota  Mississippi  Missouri  Montana  Nebraska  Nevada  New Hampshire  New Jersey  New Mexico  New York  North Carolina  North Dakota  Ohio  Oklahoma  Oregon  Pennsylvania 

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  Vermont  Virginia  Washington  West Virginia  Wisconsin  Wyoming  TOTALS

2003 Legislative Session: DNA Database Expansion Bills Pending all felons legislation (14) Introduced limited expansion legislation (2) Currently an all-felons state (23) Enacted all felons legislation in 2003 (3) Failed to pass all felons legislation (4)

2003 DNA Database Legislation (As of May 1, 2003) STBill#SponsorSummaryStatus AKHB49Anderson Expands 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. Passed House ARHB1074Verkamp Expands 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 ARHB2310Pate Limits qualifying offenses for juvenile adjudications to only serious sexual assaults, murder, kidnapping, and aggravated robbery, and terrorist acts. ENACTED ARSB416Gullett Expands DNA database to include crimes of computer child pornography and computer exploitation of a child (1 st degree). ENACTED AZSB1252Brotherton Requires 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 Died in Committee CASB284BrulteExpands DNA database to include all convicted felons. Committee Hearing on 5/06 COSB128GrossmanLocal law enforcement may take DNA samples from felony arrestees, but must pay for crime lab analysis. Passed Policy & Fiscal Committee CTHB5022BergerExpands DNA database to include all convicted felons. Applies retroactively to probationers and parollees. Passed Policy Committee FLSB1648 Criminal Justice Requires jails and juvenile facilities to collect DNA from qualifying offenders for the DNA database. Allows blood or other specimen. ENACTED HIHB1065MindoExpands DNA database to include all convicted felons. Retroactive to include probationers and parolees.Died in Committee HIHCR214MarumotoRequests an interim study on expanding the DNA database to include all Class A and Class B felons.Died in Committee IDHB48 State Police Request Expands DNA database to include burglary.Died in Committee INHB1531Goodin Expands DNA database to include all convicted felons. Includes felons not sentenced to incarceration, and retroactive to include currently incarcerated. Died in Committee LASB346Dardenne Expands offender DNA database to include all felony convictions and arrestees, as well as prostitution and soliciting prostitution. Also expands the DNA database to include samples from juveniles adjudicated of felony- grade delinquent acts. Passed Senate

STBill#SponsorSummaryStatus MASB187Jacques Expands DNA database to include all convicted felons. Retroactive to include currently incarcerated, probationers, and parolees. Committee Hearing on 5/07 MDSB363Miller Removes 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. ENACTED MEHB300FairclothExpands the current all-felons DNA database requirement to include juveniles adjudicated delinquent. Died in Committee MNSB239KleisMakes permanent last year’s DNA database expansion to include all convicted felons. Budget negotiations MOHB54Jolly Expands DNA database to include all convicted felons. Includes pleas of guilty and nolo contendre. Retroactive to include probation and parole. Committee Hearing on 4/15 MOSB198Caskey Expands DNA database to include all convicted felons. Includes pleas of guilty and nolo contendre. Retroactive to include probation and parole. Committee Hearing on 4/07 MSSB2348Carlton Authorizes 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.” ENACTED NCHB79Alexander Expands 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. Passed Policy Committee NDHB1235Klemin Removes a sunset provision in current statute which would have had the effect of shrinking the state DNA database to only sex offenders. ENACTED NELB139Johnson Clarifies that the state DNA database can be used for forensic casework related to missing persons, relatives of missing persons and unidentified human remains. Designated Priority Bill NELB662Beutler Expands DNA database to include all convicted felons and juvenile felony adjudications. Retroactive to include persons currently incarcerated. Committee hearing on 2/27 NJHB2617Johnson Expands 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. Passed Assembly NJSB2066Sacco Expands 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. Passed Policy Committee NVHB55Anderson Expands offender DNA database to include failure to register with law enforcement as required for a crime against a child or for sex offenses. Passed House and Senate. Needs Concurrence.

STBill#SponsorSummaryStatus NYHB2131McLaughlinRequires DNA samples from any person arrested for an offense for which fingerprints are taken.Committee NYHB5271Ferrara Expands offender DNA database to include attempts at felonies currently required to submit DNA to the state database. Committee NYSB138MalteseRequires DNA samples from any person arrested for an offense for which fingerprints are taken.Committee ORSB729MinnisExpands offender DNA database to include all Class A misdemeanors Died in Committee PAHB835MaitlandExpands DNA database to include all convicted felons. Retroactive to include currently incarcerated.Committee RIHB6104DenniganExpands DNA database to include all convicted felons. Committee Hearing 3/26 RISB739DamianiExpands DNA database to include all convicted felons. Committee Hearing 4/30 SCSB263Moore Expands 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 SDSB184Abdallah Expands offender DNA database to include all convicted felons, and juvenile adjudications Retroactive to include currently incarcerated and others still under state supervision. ENACTED TXHB562McCall Requires immediate DNA collection from capital murder (current statute is for all felons but is awaiting funding for implementation) Passed House UTHB107Adams Expands 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 VTHB133Kainen Expands 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. Committee WVHB2693StempleExpands DNA database to include all convicted felons. Passed House. Died in Senate.

DNA DATABASE SUCCESSES Virginia Database Statistics ~Over 1100 DNA database hits ~85% of hits would have been missed if database limited to only violent offenders. Florida Database Statistics ~52% of Florida offenders linked to sexual assaults and homicides by DNA database matches have had prior burglary convictions. ~January 2002 Report “The First 100 Hits.” ÜFebruary 2000 – July 2001 Ü104 crime scenes matched with 102 offenders. New York Database Statistics 1999 New York law expands DNA database to include many non- violent felonies (including burglary and drug crimes).

New York DNA Database Study ÜFor 55 of the 102 matched offenders: The first conviction was not for a DNA index offense The qualifying offense occurred 4½ years later, during which time these offenders accumulated an average of 10.2 felony and 5.6 misdemeanor arrests. FIRST 100 HITS: FINDINGS Ü75% of the offenders were under some form of criminal justice control (18% on parole, 11% on probation) ÜIn 33 hits the police reported having "no suspect" at the time the DNA evidence was submitted ÜOver all, offenders averaged 11.9 prior arrests and 5.5 prior convictions for felony or misdemeanor offenses

Emerging Database Trends Emerging Database Trends Misdemeanor Convictions Some states require DNA from specific misdemeanors Alabama, Arkansas, Arizona, Kansas, Iowa, Maine, Maryland, Michigan, Minnesota, 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 3 rd degree sexual abuse; Elder abuse Menacing; Harassment; Stalking Animal Cruelty Prostitution Peeping False imprisonment 4 th degree burglary

Emerging Database Trends Emerging Database Trends Misdemeanor Convictions Oregon SB 729 – Class A misdemeanors. Not passed Connecticut HB 5353 – All misdemeanor convictions Not passed Louisiana (multiple) – prostitution and soliciting a prostitute Pending Vermont HB 133 – caregiver sex abuse, poss. of child porn Not passed

Emerging Database Trends Emerging Database Trends Felony Arrests Louisiana, Texas, and Virginia are authorized to collect from certain felony arrests at various stages of pre-conviction. California authorizes samples collected from certain felony suspects to be maintained on the database for two years.

Emerging Database Trends Emerging Database Trends Felony Arrests Louisiana (multiple) -- Felony arrests Pending Colorado HB Felony arrests Pending Nevada HB 55 – Volunteered and court ordered suspect samples into CODIS Failed New York (multiple) – fingerprintable arrests Pending Arizona SB Felony arrests Failed

THEMES Limited to certain felony offenders Expungement requirements ISSUES Local collection burden Funding Cannot be uploaded to national index Emerging Database Trends Emerging Database Trends Felony Arrests

ISSUE #2 STATUTE OF LIMITATIONS & DNA

STATUTE of LIMITATIONS & FORENSIC DNA Legislation Considered by States 1.Elimination 2.Elimination / Extension if a DNA profile from the crime scene is available 3.Extension for a set number of years 4.Codification of “John Doe” warrants or indictments

STATUTE OF LIMITATIONS LEGISLATION (since 2000)

2003 STATUTE OF LIMITATIONS LEGISLATION

STATUTE of LIMITATIONS & FORENSIC DNA Backlogs mean some investigators must wait months, even years for analysis of low-priority cases. New York - 16,000 unanalyzed rape kits. DNA is solving crimes considered “cold” for over 20 years. Continuing push to give DNA databases a chance to work. Milwaukee “solved case” protocol California v. Stogner

ISSUE #3 POST CONVICTION DNA TESTING

POST CONVICTION LEGISLATION (since 2000)

2003 POST CONVICTION LEGISLATION

Legislation Considered by States 1.Limited period for motions 2.Death Row / Lifer v. All felons 3.Innocence maintained / Identity an issue 4.Testing costs 5.Penalties POST CONVICTION DNA TESTING

ISSUE #4 RELATEDLEGISLATION

OTHER BILLS Mandated accreditation, forensic science review commissions – New Jersey, Texas, Missouri, others Missing persons programs – New Mexico, New York Victims DNA Bill of Rights – California, Massachusetts, Federal California HB 155 – “Good cause” for continuance includes the temporary unavailability of requested DNA analysis results Illinois HB Defendants may make a motion for a court order before trial for DNA analysis and database comparison Louisiana SB 1956 – Requires DNA samples from new law enforcement officers Texas HB 661 – Extends the allowable time for execution of a search warrant for DNA from 3 days to 20 days. Samples in the database by mistake do not invalidate an arrest or conviction

STATE FUNDING EFFORTS Earmarks Targeted spending for specific problems California state DNA grant program North Carolina rape kit focus (2003) Louisiana serial killer investigation (2003) Other Sources Needed For example Arizona 3% assessment on all civil penalties and traffic fines Ü Similar efforts in Indiana and New York Ü But, earmarks are one-time deals – not a reliable source Ohio Victims of Crime/Reparation Fund Offender Pays (Ranges from $25 to $250) Local jurisdiction pays for testing Ü United Kingdom method Ü Florida & California budget proposal Ü Current practice at many local and regional labs Delayed implementation Ü Scheduled roll-out (Arizona and Florida) Ü Upon sufficient funding

FORENSIC DNA ISSUES & THE FEDERAL GOVERNMENT  DNA Casework and Offender Backlogs Authorization and Appropriation  DNA Initiative  National Studies

President Bush’s DNA INITIATIVE Announced March 2003 To be overseen by US Department of Justice (NIJ)

ONE BILLION DOLLARS

DNA INITIATIVE DNA INITIATIVE Funding Measures $1 over five years Eliminating Backlogs$92.6 million Casework Backlogs$76.0 Offender Backlogs$15.0 Federal Offenders$1.9 Crime Lab Capacity$90.4 million Public Lab Capacity$60.0 FBI Forensics$20.5 CODIS$9.9 Research & Development$24.8 million Improving DNA$10.0 FBI R&D$ 9.8 Demonstration projects$ 4.5 Nat’l For. Sci. Commiss.$ 0.5 $232.6 million requested for FY 2004

DNA INITIATIVE DNA INITIATIVE Funding Measures Missing Persons$2.0 million Criminal Justice Training $17.5 million Law Enforcement$3.5 Prosecutors, Defense, Judges$2.5 Corrections, Probation, Parole$1.0 Forensic Scientists$3.0 Medical Services$5.0 Victim Services$2.5 Post Conviction Issues$5.0 million

DNA INITIATIVE DNA INITIATIVE Policy Measures Expand state databases to include all felons Expand federal database to include all felons Apply expanded database statutes retroactively, to include those “under supervision” Allow inclusion of other DNA samples “collected under applicable legal authority”

TURNING AN INITIATIVE INTO LAW White House / DOJ DNA Initiative Proposal Congress Authorize spending programs Congress Appropriates funding

2003 FEDERAL DNA LEGISLATION BILLS INTRODUCED IN THE HOUSE: H.R DNA Database Completion Act of 2003 Representative Robert Andrews (D-NJ) H.R Stop the Violent Predators Against Children DNA Act Representative Shelia Jackson Lee (D-TX) BILLS INTRODUCED IN THE SENATE: S Rape Kits and DNA Evidence Backlog Elimination Act Senator Mike DeWine (R-OH) S Sexual Assault Justice Act Senator Joseph Biden (D-DE) S Justice Enhancement and Domestic Security Act Senator Tom Daschle (D-SD) Sen. Orrin Hatch (R-UT) Judiciary Committee Chair Rep. James Sensenbrenner (R-WI) Judiciary Committee Chair

S. 149 Rape Kits and DNA Backlog Elimination Act (Proposed prior to DNA Initiative) 1. Convicted Offender Reauthorization $ 25 million in 2004$25 million in 2006 $ 25 million in 2005$25 million in Unsolved Casework Reauthorization $75 million in 2004$25 million in 2006 $75 million in 2005$25 million Local Agencies May Apply Directly for Unsolved Casework Grants 4. Authority to upload any legally collected sample into the national database (arrestees/juveniles) 5. All felons for Military and Federal Crimes

Ü$55 million in requested awards Ü$35 million in appropriated funding Only the first year of the 2-year grant request will be funded in 2003 FY 2003 FEDERAL DNA GRANTS 3Awards begin in late June, to roll out as requests receive final approval A federal program (not a grant) to pay for outsourcing offender analysis Ü NIJ will procure DNA analysis services from pre-approved private labs Ü A seamless mechanism for sending out convicted offender samples Operational by the beginning of May ? “Non-supplanting funds" rules will apply to this program No Suspect Casework Offender Profile Outsourcing ? 2004 grant solicitation not expected until next year

DNA FUNDING ISSUES Heavy reliance on federal funding which may not always be available States with the best DNA programs have traditionally had strong support in state funding Backlogs are typically the result of funding levels that have not kept up with demand for DNA testing Local responsibility in funding casework is likely to increase

FORENSIC DNA ASSESSMENT PROJECT NIJ has asked Smith Alling Lane and Washington State University to develop the following data: ÜWhat is the “Hit Rate”? ÜWhat is the true backlog for homicides and rapes? ÜHow much crime could be prevented with larger databases? ÜWhat do DNA programs need? ÜWhat are the savings to law enforcement when DNA is used? ÜComparative analysis to the United Kingdom Assessment completion date - Summer 2003

OTHER PROJECTS International Association of Chiefs of Police –DNA Summit in April 2003 –Summit document out this fall Other Studies –NIJ Victims Office, Santa Monica Rape Treatment Center –Best practices

Questions ?