1. AMERICAN PROSECUTORS RESEARCH INSTITUTE DNA: JUSTICE SPEAKS THE EXPANSION OF FORENSIC DNA AND ITS RELATIONSHIP TO STATE LEGISLATURES AND CONGRESS November 20, 2003 Tim Schellberg tims@smithallinglane.com Presented by: Smith Alling Lane, P.S. Tacoma, WA (253) 627-1091 Washington, DC (202) 258-2301 London 0 (44) 798 953 8386

2. Government Affairs Attorneys at Law Smith Alling Lane A Professional Services Corporation

4. Offender DNA Databases Post Conviction DNA Testing Statute of Limitations & “John Doe” Warrants Funding Problems FORENSIC DNA ISSUES & THE LEGISLATURES

5. ISSUE #1 Offender DNA Database Expansion

6. US DNA Database Legislative Time-Line 1983 - California Legislature passes law to collect blood from certain offenders - “DNA” is not mentioned in statute 1988 - Colorado Legislature becomes the first to enact laws requiring DNA from sex offenders 1990 - Virginia Legislature becomes first to enact an all felons DNA law 1991 - 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 1992 - Majority of states begin passing laws to create DNA databases for sex offenders

7. Time-Line (continued) 1994 - Congress enacts the DNA Identification Act -- CODIS is formally created 1996 - 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 1997 - A majority of states begin focusing on expanding their database laws to include violent crimes and burglary 1999 - 50 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 - The American Civil Liberties Union (ACLU) and the Criminal Defense Bar organize to oppose all felons legislation

8. Time-Line (continued) 2000 - Congress enacts the DNA Backlog Elimination Act (appropriates $140 million to states for DNA analysis) 2001 - Preliminary data showing the success of the Virginia DNA database is released - ACLU virtually disappears from all felons debate - A surge in all felons legislation occurs - 7 more states enact laws, for a total of 14 states with all felon laws 2002 - All felons legislation surge continues - 8 more states laws, for a total of 22 states with all felon laws - Continued reliance on both Virginia data and federal funds - Congress begins work on the Debbie Smith Act - Virginia enacts limited arrestee DNA testing law 2003 - 9 additional states pass all felons legislation, for a total of 31 - Large federal appropriation pending - President’s DNA Initiative is introduced - Louisiana enacts comprehensive arrestee DNA testing law

9. Why Is DNA Database Expansion So Important? 40% hit rate 1,700 hits/week 7.8 crimes prevented per conviction Entire criminal pop by 3/04 5-35 day turnaround

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

11. Virginia’s “Cold Hits” on the DNA Database Drug Possession Only to Type of Crime Solved

12. Virginia’s “Cold Hits” on the DNA Database Forgery to Type of Crime Solved

13. Virginia’s “Cold Hits” on the DNA Database Juveniles to Type of Crime Solved

14. The Recent Trend To All Felons 1998 - 5 States1999 - 6 States2000 - 7 States 2006 - 45 States (est.) -- assuming data and funding 2001 - 13 States 2002 - 22 States 2003 – 31 States

15. 2003 Legislative Session: DNA 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 *

16. 2003 DNA Database Legislation (As of November 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. ENACTED 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 2006. Died in Committee CASB284BrulteExpands DNA database to include all convicted felons. Failed in Committee COSB128Grossman Local law enforcement may take DNA samples from felony arrestees, but must pay for crime lab analysis. Passed Senate. Died in House. CTHB5022Berger Expands DNA database to include all convicted felons. Applies retroactively to probationers and parollees. ENACTED FLSB1648 Criminal Justice Clarifies that the local sheriff is responsible for collecting DNA from offenders who are not sentenced to incarceration. Further clarifies that the sheriff shall secure, process and transmit the specimens to FDLE in a timely manner. ENACTED HIHB1065Mindo Expands 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 includes juvenile adjudications. ENACTED

18. STBill#SponsorSummaryStatus NYHB2131McLaughlinRequires DNA samples from any person arrested for an offense for which fingerprints are taken. Died in Committee NYHB5271Ferrara Expands offender DNA database to include attempts at felonies currently required to submit DNA to the state database. Died in Committee NYSB5099VolkerRequires DNA samples from any person arrested for an offense for which fingerprints are taken. Passed Senate. Died in Assembly 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. Died in Committee RIHB6104DenniganExpands DNA database to include all convicted felons. Died in Committee. RISB739DamianiExpands DNA database to include all convicted felons. Passed Senate. Died in House 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. Died in House. 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) ENACTED 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. Died in Committee WVHB2693StempleExpands DNA database to include all convicted felons. Passed House. Died in Senate.

19. State DNA Database Statutes State DNA Database Statutes (As of September 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  **

20. 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  

21. 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  TOTALS50 464537313423447 3420 *9 th Circuit Court decision (US v. Kincaid) was applicable to federal DNA database statute for retroactive probationers and parolees

22. Perfecting Existing All Felons Statutes ALL FELONS “ All Felons” states that are not ALL FELONS: 8 Not Retroactive ColoradoDelawareGeorgiaIowa Minnesota TennesseeTexasWisconsin 8 No Juveniles DelawareIowaMaryland Mississippi 8 No Jailed Offenders ColoradoGeorgiaTexas 8 No Community Corrections ColoradoTexas

23. all felons vs. ALL FELONS Impacts of Legislation Felons serving time in prison Felons serving time in jail Juveniles Felons on community corrections Retroactive Prison Data based on Washington State figures Retroactive Jail Retroactive Probation/Parole 5,600 annually 15,000 annually 7,952 annually 840 annually 6,1000 1,863 10,300 Total impact of all felons legislation 5,600 annually Total impact of ALL FELONS legislation 23,792 annually 18,263 retroactive 42,055 in first year

24. Emerging Database Trends Emerging Database Trends Expanding Advocacy Victims Massachusetts and Louisiana bills have strong victim support Victims Associations John Walsh joins New York Governor’s push for all felons National Association Attorneys General NAAG President (California AG Lockyer) will be focusing on law enforcement technology, including DNA International Association of Chiefs of Police Spring 2003 DNA Summit with OJP

25. Emerging Database Trends Emerging Database Trends Misdemeanor Convictions Some states require DNA from specific misdemeanors Alabama, Arkansas, Arizona, Kansas, Iowa, Louisiana, Maine, Maryland, Michigan, Minnesota, New Jersey, 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 & Soliciting prostitutes Peeping False imprisonment 4 th degree burglary

26. 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, soliciting a prostitute, peeping toms, numerous battery and assault crimes Enacted Vermont HB 133 – caregiver sex abuse, poss. of child porn Not passed New Jersey (multiple) – any crime with a 6 month sentence Enacted

27. Colorado (2003) - Felony arrests Nevada (2003) - Volunteered and court ordered samples into CODIS New York (2001,2002,2003) – Fingerprintable arrests Arizona (2002, 2003) - All arrests Texas (2001) – Certain felony arrests and indictments Virginia (2002) – Violent felony arrests Connecticut (2000) - Fingerprintable arrests Emerging Database Trends Emerging Database Trends Arrestee Testing Proposals

28. Enacted Arrestee DNA 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

29. Louisiana Senate Bill 346 Louisiana Senate Bill 346 Raising the Bar ÜInfluence of the “Baton Rouge Serial Murders” on passing SB 346? ÜSB 346 (enacted) gives Louisiana the strongest DNA law in the United States: 3All felony arrests 3Some misdemeanor arrests 3No expungement requirements

30. Future of Arrestee DNA Legislation ÜOne of two pre-requisites seem to be necessary to pass meaningful arrestee testing legislation: 3Mature and successful all felons program (Virginia) 3Politically charged public safety paranoia (Louisiana) ÜLouisiana’s SB 346 might be the exception. Others might have to compromise like Virginia. Some strategies may diminish opposition: 3Limit to violent and sex crimes 3Require expungement if suspect is not convicted 3Require sample destruction after profiling is complete

31. Challenges to Arrestee Testing Convicted offender DNA databases have been upheld, but arrestee and volunteer databases have not 4Similar to a fingerprint? Or are buccal swabs invasive? 4Barry Scheck (Innocence Project) has joined defense lawyers in Louisiana l Floyd M. Wagster Jr. v. Elmer Litchfield et. al l No trial date set -- Chief Judge Frank Polozola, US District Court for the Middle District of Louisiana to preside 4Likely to set standards for collection and maintenance of DNA samples from non-convicted persons

32. ISSUE #2 Post Conviction DNA Testing Post Conviction DNA Testing

33. Recent events have pushed this issue before policy makers 4 138 exonerated through the Innocence Project DNA testing 4 Illinois Governor places a moratorium on executions 4 U.S. Senator Patrick Leahy’s introduction of the Innocence Protection Act 4 Extensive media coverage Post Conviction DNA Testing

34. Post Conviction DNA Legislation INTRODUCED (Since 2000)

35. Post Conviction DNA Legislation ENACTED (Since 2000)

36. ISSUE #3 Statute of Limitations Statute of Limitations

37. STATUTE of LIMITATIONS & FORENSIC DNA Backlogs mean some investigators wait months, even years for analysis of low-priority cases.  New York - 16,000 unanalyzed rape kits.  Some labs do not accept no-suspect cases DNA is solving crimes considered “cold” for over 20 years. Continuing need to give DNA databases a chance to work.

38. STATUTE of LIMITATIONS LEGISLATION (enacted since 2000) [ [ Delaware and the Federal government allow John Doe warrants in statute.

39. ISSUE #4 Forensic DNA Funding

40. History of Federal Funding for Forensic DNA Prior to the DNA Backlog Elimination Act of 2000 (1999 through 2000) 1999 - $15 million “for projects to improve DNA analysis” 2000 - $30 million for DNA laboratories as well as “forensic laboratory general forensic science capabilities” DNA Backlog Elimination Act of 2000 2001 - 10 million Casework? / $11 million convicted offender 2002 - $7 million Casework/ $15 million convicted offender 2003 - $25 million Casework/ $15 million convicted offender 2004 - $50 million Casework? / $15 M convicted offender?

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

42. More than $1.2 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 $257.5 Million Advancing Justice Through DNA Technology (HR 3214, S 1700 & S 1828)

43. DNA INITIATIVE DNA INITIATIVE Policy Measures Recommends state databases to include all felons Expand federal database to include all felons Allows local governments to apply for DNA money directly Apply expanded database statutes retroactively, to include those “under supervision” Allow inclusion of other DNA samples “collected under applicable legal authority” (provision limited in language that passed the House) Allows key board searches

44. State Funding Sources ÜOFFENDER PAYS u Fees range from $25 to $500. Some states require an assessment to inmate wages. u Problems include enforcement, indigent claims and re-appropriation. u States: Arkansas, Hawaii, Illinois, Louisiana, Michigan, Montana, Nevada, New Mexico, North Dakota, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, Wisconsin ÜEARMARKS ÜPUBLIC SAFETY ASSESSMENT u Significant source of funding, but not a permanent solution u State appropriations (ex. Louisiana received $4 million in 2003) u Federal appropriations secured by congressional delegation u Excellent source for long-term funding. u Alabama -- $2 assessment in all municipal, district and circuit court cases, both criminal and civil, in bond forfeiture proceedings, upon initiation of attachment, garnishment or execution proceedings and upon the issuance of any alias or capias warrant of arrest u Arizona -- 3% additional penalty assessment on every fine, penalty and forfeiture imposed and collected by the courts for criminal offenses and for civil traffic violations (state and local) u New Jersey -- $2 surcharge per traffic or motor vehicle violation (state and local), with a report and review in five years

45. The Future of DNA Funding ÜFederal Funding will likely peak in 2009 ÜState Stable funding for databasing and some unsolved casework ÜLocal The United Kingdom experience suggests that the costs of aggressive unsolved casework may eventually rest with local government In 2003, Florida and California state budget proposals included provisions to require local payment for forensic testing Many regional crime labs already charge for services

46. ISSUE #5 Problems

47. What are the Problems? What is holding the United States back from more aggressive DNA programs? Comprehensive databases are slow to develop Lack of demand from Law enforcement - (IACP is working hard to fix this) Limited local government spending

48. Questions ? www.dnaresource.com tims@smithallinglane.com