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) Washington, DC (202) London 0 (44) Tim Schellberg, JD

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

ISSUE #1 CONVICTED OFFENDER CONVICTED OFFENDER DNA DATABASE EXPANSION 2004

Database Expansion’s Relationship to Casework Utilization Increased offender testing = increased casework Legislatively created database law scenarios 4 No database 4 All convicted violent offenders 4 All convicted felons 4 Suspects Legislature

SCENARIO I No Database Legislation SCENARIO I No Database Legislation Per 5 Million in State Population Ü 1,000 annual casework samples Ü No offender samples

SCENARIO II All Violent Offenders Legislation SCENARIO II All Violent Offenders Legislation Per 5 Million in State Population 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

SCENARIO III All Felons Legislation SCENARIO III All Felons Legislation Per 5 Million in State Population On the eighth year after the passage of the legislation, an estimated 7,500 annual casework samples will be tested. Offender Database Samples Casework Samples

SCENARIO IV All Suspects Legislation SCENARIO IV All Suspects Legislation Per 5 Million in State Population On the eighth year after the passage of the legislation, an estimated 16,000 annual casework samples will be tested Offender Database Samples Casework Samples

Summary of Legislation Scenarios 270 million US population Casework Estimated 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 Felons States States States (est.) -- assuming data and funding States States 2003 – 31 States 2004 – 34 States Legislation pending in 5 states

2004 Legislative Session: DNA 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 (# Requires DNA from all convicted felons Ü Probation and community corrections Ü Juveniles Ü Fully retroactive (including probationers & parolees) Ü Includes all offenders in custody if there is a prior felony conviction 4Requires DNA for all felony arrests in 5 years 4Fee of $1 per every $10 for court ordered criminal fines Ü Includes infractions of state vehicle code and local ordinances, but excludes parking tickets. Money available to fund casework (Section IV, subsection 3). 4Offender outsourcing required if backlog of 60 days

Database Statutes STATE Sex Crimes Murder All Violent Felons Burglary Drug Crimes All FelonsJuveniles Some Misde- meanors Arrestees 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 

STATE Sex Crimes Murder All Violent Crimes Burglary Drug Crimes All FelonsJuveniles Some Misde- meanors Arrestees Jailed Offenders Community Corrections Retroactive Jail & Prison Retroactive Probation & 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 

STATE Sex Crimes Murder All Violent Crimes Burglary Drug Crimes All FelonsJuveniles Some Misde- meanors Arrestees Jailed Offenders Community Corrections Retroactive Jail & Prison Retroactive Probation & Parole Vermont  Virginia  Washington  West Virginia  Wisconsin  Wyoming  TOTALS

Database Legislation As of June 24, 2004 STBill#SponsorSummaryStatus CAHB1444BenoitExpands DNA database to include all levels of sex offenders.Failed in Committee CASB284BrulteExpands DNA database to include all convicted felons.Committee CASB883Margett Expands 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, Passed Senate CASB1737Speier Expands 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 DEHB426SmithExpands DNA database to include anyone arrested for a crime for which fingerprints are required.Committee HIHB1804Marumoto Expands DNA database to include all convicted felons. Retroactive to include probationers and parolees. Died in Committee HIHB2754Pendleton Expands DNA database to include all convicted felons. Retroactive to include probationers and parolees. Died in Committee HIHR66-4Marumoto Forms 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. HIHR97-4Marumoto Forms 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. IDHB520 State Police Request Expands DNA database to include burglary and felony domestic violence.ENACTED IDHB796 State Affairs Committee Adds statutory rape to the DNA database.See HB 520 ILHB4825LaViaExpands offender DNA database to include felony arrests.Passed House ILHB6884Millner Expands offender DNA database to persons found not guilty by reason of insanity for felony crimes (current statute requires all felony convictions). Committee INSB17Zakas Expands 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 KYHB119Meeks Expands DNA database to include all convicted felons. Includes juveniles and retroactive to include probation and parole. Died in Committee

STBill#SponsorSummaryStatus MDSB426McFaddenExpands offender DNA database to include persons charged with a crime of violence.Withdrawn MOHB931Bivins Expands DNA database to include all convicted felons. Includes juveniles and no contest pleas. Retroactive to include probation and parole. See SB 1000 MOHB1094Jolly Expands DNA database to include all convicted felons. Includes no contest pleas. Retroactive to include probation and parole. Establishes $160 offender fee. See SB 1000 MOSB1000Bartle Expands 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 MOSB1026Mathewson Expands DNA database to include all convicted felons. Limits collection from county jail inmates to only violent and sex offense convictions. See SB 1000 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. VETOED (due to unrelated provision) NELB662Beutler Expands DNA database to include all convicted felons and juvenile felony adjudications. Retroactive to include persons currently incarcerated. See LB 139 NJHB2747Johnson Expands offender DNA databases to include violent felony arrests and for disorderly conduct convictions. Committee NJSB1513Sacco Expands offender DNA databases to include violent felony arrests and for disorderly conduct convictions. Committee NMHB475FoleyExpands DNA database to include anyone who registers as a sex offender.Died in Committee NMSB104CarraroExpands DNA database to include anyone who registers as a sex offender.Died in Committee NYHB2131McLaughlin Requires DNA samples from any person arrested for an offense for which fingerprints are taken, and from any defendant in a criminal action. Committee NYHB5271Ferrara Expands offender DNA database to include attempts at felonies currently required to submit DNA to the state database. Committee NYHB9356Kolb 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 NYHB LentolExpands offender DNA database to include crimes of terrorism Passed Policy Committee

STBill#SponsorSummaryStatus NYSB138MalteseRequires DNA samples from any person arrested for an offense for which fingerprints are taken.See SB 7659 NYSB5099VolkerRequires DNA samples from any person arrested for an offense for which fingerprints are taken.Passed Senate NYSB5554Skelos 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 NYSB7659Volker Expands offender DNA database to any sex offense (including misdemeanors), and a significant number of other crimes including identity theft and soliciting a prostitute. ENACTED OHSB372Strahorn Expands 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 OKHB1853TurnerExpands offender DNA database to include all assault with intent to kill and bombing.ENACTED OKSB1362Gumm Expands offender DNA database to include all felony convictions. Includes juveniles. Retroactive to include currently incarcerated. Died in Committee OKSB1417NicholsExpands offender DNA database to include all felony convictions and felony arrests.Died in Committee OKSB1447Helton Expands offender DNA database to all violent offenders. Include persons receiving deferred judgment or suspended sentences. VETOED. PAHB835Maitland Expands DNA database to include all convicted felons. Retroactive to include currently incarcerated. Passed House. Passed Senate Committee. PAHR585Weber Urges 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 RIHB7290DenniganExpands DNA database to include all convicted felons.Hearing on 3/24 RISB2921DamianiExpands DNA database to include all convicted felons. Passed Senate. Passed House Committee. SCHB3517Owens Expands DNA database to include all convicted felons. Retroactive to include currently incarcerated, probation and parole. See HB 3594 SCHB3594JenningsExpands offender DNA database to include all felonies, includes juveniles.ENACTED

STBill#SponsorSummaryStatus 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. See HB 3594 VAHB776McDougle Expands offender DNA database to include persons arrested for attempted violent felonies (violent felony arrestees already included under current law) ENACTED VTHB133Kainen Expands 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 WAHB2847MilosciaExpands offender DNA database to include persons arrested on criminal charges.Died in Committee WAHB2969O’Brien Expands 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. WVHB2693StempleExpands offender DNA database to include all convicted felons. Language is permissive.See HB 4156 WVHB4156Webster Expands offender DNA database to include all convicted felons. Language is permissive. Provides a right to post conviction DNA testing. ENACTED WVSB312Kessler Expands offender DNA database to include all convicted felons. Language is permissive. Provides a right to post conviction DNA testing. Committee

ISSUE #2 ARRESTEE TESTING

Emerging Database Trends Emerging Database Trends Arrestee Testing Proposals Arizona (2002, 2003) – All arrests California (2004) – Felony arrests Colorado (2003) – Felony arrests Connecticut (2000) – Fingerprintable arrests Delaware (2004) – Fingerprintable arrests Illinois (2004) – Felony arrests Louisiana (2003) – Felony arrests and some misdemeanors Maryland (2004) – Felony charges New Jersey (2004) – Violent felony arrests New York ( ) Fingerprintable arrests Oklahoma (2004) – Felony arrests Texas (2001) – Certain felony arrests and indictments Virginia (2002; 2004) – Violent felony arrests; arrests for violent felony attempts Washington (2004) – Arrests for criminal charges Introduced legislationEnacted legislation

What Will Impact the Arrestee DNA Debate? 4Crime Prevention Data 4Constituent Reaction The California Initiative 4Sample Destruction

Arrestee Sample Destruction Options 4Destroy all samples 4Save the convicted samples and destroy the arrestee samples PROS CONS Ü Likely required for arrestee legislation to pass Ü Reduces chances of unconstitutionality Ü Hinders technology changes Ü Makes quality control difficult

ISSUE # FEDERAL LEGISLATION

Advancing Justice Through DNA Technology Act Titles I and II – President’s DNA Initiative HR 3214 Rep. Sensenbrenner (R-WI) S 1700 Sen. Hatch (R-UT) S 1828 Sen. Kyl (R-AZ) Ü $1 billion over 5 years Ü All felon federal and military crime databases Ü Allow all legally collected samples (juveniles, arrestees) Ü Permit local agencies to apply for the DNA money Titles III – Innocence Protection Act Ü Post conviction DNA testing Ü Grants for counsel improvements during capital trials

More Than $1 Billion Over 5 Years ( ) Proposed 2005 spending Ü$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 Ü$30 million for Sexual Assault Nurse Examiner Training Ü$12.5 million for training for criminal justice professionals Ü$15 million for research and development. Ü$42 million for FBI DNA programs Ü$2 Million for Missing Persons DNA Programs Ü$5 Million for Post Conviction DNA Testing

The Politics of the DNA Initiative The “Deal” vs. DOJ / White House / Kyl’s Camp

2005 DNA Appropriations 4President’s Request $175.7 million $ 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. 4Senate is undecided but leaning towards full funding Ü Senate Concurrent Resolution 95 on the 2005 federal budget includes language supporting funding the DNA Initiative at the President’s requested amount. Ü Kyl letter to Appropriations Committee Ü Leahy & Hatch letter to Appropriations Committee 4House 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 #5 NIJ DNA ASSESSMENT

Forensic DNA Assessment 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

Forensic DNA Assessment Project Final Report Topics Backlogs ÜHow big is it ÜWhy do we have them Related growth problems ÜStorage ÜEducation Effectiveness of DNA programs ÜCODIS data (solving crimes, preventing crimes) ÜEfficiencies & costs Comparative analysis to the United Kingdom

Forensic DNA Assessment Project Assessment questionnaire sent to 3State DNA labs (100%) 3Local DNA labs (100%) 3Local 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 ÜReleased to Congress and the Public in April 2004

Forensic DNA Assessment Results Backlogs 4Law Enforcement Homicide – 52,000 cases Rape – 169,000 cases Property Crime – 264,000 cases 4State Labs 34,700 cases 4Local Labs 22,600 cases

Forensic DNA Assessment Results Reasons why law enforcement does not submit cases 4DNA not considered a tool for crime investigations % Ü No suspect has been identified % Ü Prosecution had not requested testing - 9.2% Ü Suspect identified but not yet charged % 4Poor funding % 4Labs can’t produce timely results % Backlog timeline for no suspect casework 4State labs - 24 weeks 4Local labs – 30 weeks

Forensic DNA Assessment Results Preventable Crimes Who would be alive or not victimized by a sexual assault if: 4State legislature had passed and implemented all felons legislation 4Casework was completed in a timely manner Focused on states without all felons laws

Case Study Massachusetts 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 Study Missouri 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 Study New 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 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 Project - Results 4 Over 1,700 crime scene to crime scene or suspect to crime scene hits per week 4 40 percent chance of obtaining a match between a crime scene profile and a “criminal justice” (arrestee or suspect) profile loaded into the database 4 Adds between 8,000–10,000 arrestee or suspect profiles to the database per week 4 Adds between 1,000 to 1,500 crime scene profiles to the database per week 4 Increases the suspect identification rate for domestic burglary from 14 to 44 percent when DNA is available at the crime scene 4 Solves 0.8 other crimes for each crime solved with DNA 4 Prevents 7.8 other crimes for each custodial sentence resulting from a DNA based conviction 4 Will contain profiles of the entire “criminally active population” by March 2004 England and Wales

Questions ?