1. 2004 LEGISLATIVE UDATE AAFS - ABI Users Meeting Presented by: Smith Alling Lane, P.S. Tacoma, WA (253) 627-1091 Washington, DC (202) 258-2301 London 0 (44) 798 953 8386 Tim Schellberg, J.D. tims@smithallinglane.com February 18, 2004

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

4. DNA DATABASE EXPANSION

5. 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

6. 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 *

7. State DNA Database Statutes State DNA Database Statutes (As of February 2004) STATE Sex Crimes Murder All Violent Crimes Burglary Drug Crimes All FelonsJuveniles 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 **

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

9. 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

10. 2004 Legislative Session: DNA 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 * *

11. 2004 DNA Database Legislation (As of February 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 registered sex offenders, including misdemeanors. Includes those found not guilty by reason of insanity and juveniles. Effective in 2007. Passed Senate HIHB1804Marumoto Expands DNA database to include all convicted felons. Retroactive to include probationers and parolees. Committee HIHB2754Pendleton Expands DNA database to include all convicted felons. Retroactive to include probationers and parolees. Committee IDHB520 State Police Request Expands DNA database to include burglary and domestic violence. Pending House vote ILHB4825LaViaExpands offender DNA database to include felony arrests.Committee INSB17Zakas Expands DNA database to include residential entry and incest, and related attempts. Includes probation sentences, and retroactive to include those currently incarcerated. Passed Senate KYHB119Meeks Expands DNA database to include all convicted felons. Includes juveniles and retroactive to include probation and parole. Committee MDSB426McFaddenExpands offender DNA database to include persons charged with a crime of violence.Hearing on 3/9 MOHB931Bivins Expands DNA database to include all convicted felons. Includes juveniles and no contest pleas. Retroactive to include probation and parole. Hearing held 02/03 MOHB1094Jolly Expands DNA database to include all convicted felons. Includes no contest pleas. Retroactive to include probation and parole. Establishes $160 offender fee. Passed Committee MOSB1000Bartle Expands DNA database to include all convicted felons. Includes no contest pleas. Retroactive to include probation and parole. Establishes $160 offender fee. Pending Senate Vote 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

12. 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. Pending Final Vote NELB662Beutler Expands DNA database to include all convicted felons and juvenile felony adjudications. Retroactive to include persons currently incarcerated. See LB 139 NMHB475FoleyExpands DNA database to include anyone who registers as a sex offender.Committee NMSB104CarraroExpands DNA database to include anyone who registers as a sex offender.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 & misdemeanor convictions. Includes juveniles, jailed offenders, and probation sentences. Retroactive to include non-completed sentences. Eliminates statute of limitations for certain sex offense. Committee NYSB138MalteseRequires DNA samples from any person arrested for an offense for which fingerprints are taken.See SB 5554 NYSB5099VolkerRequires DNA samples from any person arrested for an offense for which fingerprints are taken.See SB 5554 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. Pending Senate Vote 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 sex offender registrations. Passed Policy Committee OKSB1362Gumm Expands offender DNA database to include all felony convictions. Includes juveniles. Retroactive to include currently incarcerated. Committee OKSB1417NicholsExpands offender DNA database to include all felony convictions and felony arrests.Committee OKSB1447Helton Expands offender DNA database to all violent offenders. Include persons receiving deferred judgment or suspended sentences. Passed Subcomm.

13. PAHB835Maitland Expands DNA database to include all convicted felons. Retroactive to include currently incarcerated. Committee RIHB7290DenniganExpands DNA database to include all convicted felons.Committee RISB739DamianiExpands DNA database to include all convicted felons.Passed Senate SCHB3517Owens Expands DNA database to include all convicted felons. Retroactive to include currently incarcerated, probation and parole. See HB 3517 SCHB3594JenningsExpands offender DNA database to include all felonies, includes juveniles.Passed 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 (in 2003) VAHB776McDougle Expands offender DNA database to include persons arrested for attempted violent felonies (violent felony arrestees already included under current law) Passed House 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. Committee WAHB2847MilosciaExpands offender DNA database to include persons arrested on criminal charges.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. Pending House Vote WVHB2693StempleExpands offender DNA database to include all convicted felons. Language is permissive.Committee WVHB4156Webster Expands offender DNA database to include all convicted felons. Language is permissive. Provides a right to post conviction DNA testing. Pending House Vote WVSB312Kessler Expands offender DNA database to include all convicted felons. Language is permissive. Provides a right to post conviction DNA testing. Committee

14. California DNA Initiative (#1029 - www.dnayes.org) 4 Requires DNA from all convicted felons ÜProbation and parole ÜJuveniles ÜRetroactive ÜIncludes all offenders in custody if there is a prior felony conviction 4 Requires DNA for all felony arrests in 5 years 4 Expungement is burden of the offender 4 Offender outsourcing required if backlog of 60 days 4 Fee of $1 per every $10 for court ordered criminal fines ÜIncludes infractions of state vehicle code and local ordinances, but excludes parking tickets

15. 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 Illinois (2004) – Felony arrests Louisiana (2003) – Felony arrests and some misdemeanors Maryland (2004) – Felony charges New York (2001-2004) Fingerprintable arrests Oklahoma (2004) – Felony arrests Texas (2001) – Certain felony arrests and indictments Virginia (2002) – Violent felony arrests Washington (2004) – Arrests for criminal charges

16. 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

17. Louisiana Senate Bill 346 Louisiana Senate Bill 346 Raising the Bar Ü Influence 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

18. 3Limit to violent and sex crimes 3Require expungement if suspect is not convicted 3Require sample destruction after profiling is complete 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:

19. FEDERAL DNA PROGRAM FUNDING

20. 2004 Congressional Budget As Passed Congress Jan. 22, 2003 3 DNA Backlog Elimination Act $100.0 M Earmarked DNA Programming Convicted Offender $ 5 million Unsolved Casework $55 million Crime Lab Capacity$30 million Criminal Justice Training$ 5 million Missing Persons$ 5 million 3 Coverdell Forensics Science Improvement $10.0 M Requires study of forensic science needs 3 COPS Law Enforcement Technology Program Some earmarks for DNA and forensic science programs 3 Crime Identification Technology Act Some earmarks for DNA and forensic science programs

21. 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;

22. 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.

23. 2005 President’s Budget DNA Provisions PROPOSED BUDGET LANGUAGE For 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. EXPLANATION DNA 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.

24. FEDERAL LEGISLATION

25. More than $1 billion over five years (2005 through 2009) 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 PRESIDENT’S DNA INITIATAIVE: Advancing Justice Through DNA Technology (HR 3214 and S 1700)

26. 3 Recommends state databases to include all felons 3 Apply expanded database statutes retroactively, to include those “under supervision” 3 Expand federal database to include all felons 3 Allows local governments to apply for DNA money directly 3 Allow inclusion of other DNA samples “collected under applicable legal authority” 3 Allows keyboard searches PRESIDENT’S DNA INITIATAIVE: Advancing Justice Through DNA Technology (HR 3214 and S 1700)

27. 2004 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

28. Authorized but not Collected F How big is the problem? F What are the consequences?

29. Questions ?