Eliminating the DNA Testing Backlog Through Cost-Effective Public-Private Partnerships

1. Eliminating the DNA Testing Backlog Through Cost-Effective Public-Private Partnerships Jeff Boschwitz, Ph.D.

2. Who is Orchid Cellmark? • Inventor of DNA testing technology • First private lab to provide human identity testing (1985) and largest provider of that testing today with a presence in both the US and UK • Analyzes several thousand cases in the US each year for more than half of the states in the US; contracts with Ft. Worth PD, Houston PD, and Harris County • Analyzed over one million CODIS samples • One of the first labs to perform “touch DNA” testing • Outstanding reputation for high quality and service: Orchid Cellmark is known for “getting DNA when nobody else can” • Can meet turn-around time needs for any situation

3. The backlog of DNA evidence at some Texas crime labs is significant • Texas Department of Public Safety • Testified at September 7 senate hearing on DNA testing backlogs that they had a turn-around time of 9.75 months and that their goal is to reduce it to 6 months1 • At a submission rate of 600 DNA requests per month, that means 5,200 cases are older than 30 days and thus in backlog at any given time • City of Houston • Testified at September 7 senate hearing on DNA testing backlogs that their backlog was nearly 1,500 cases1 • The city crime lab is reported to be falling behind at a rate of an additional 75 cases per month2 • City of Dallas • At least 1,000 rape kits (cold cases) untested as of recent reports3 • Testing on rape kits halted at one point because “the lab is overwhelmed, and testing the most recent cases makes the best use of its resources” 4 1) Senate Criminal Justice Committee Hearing on Interim Charge 6, Sept. 7, 2010; 2) HPD crime lab backlog delays trials, Houston Chronicle, Sept. 28, 2010; 3) “SVU” Star Calls for Dallas to Clear Rape Kit Backlog, NBC-Dallas Sept. 22, 2010; 4) Dallas police shelve testing of cold case kits, NBC-Dallas, Oct. 29, 2009

4. The amount of DNA evidence not being sent to the crime lab is also significant • Rape Kits • Many rape kits are not tested for DNA in Texas • San Antonio: 5,191 un-submitted kits; Houston: 3,846 un-submitted kits1 • It is likely there are tens of thousands of untested rape kit evidence in police storage throughout Texas if you extrapolate these results • Houston is the only Texas city publicly committed to testing all rape kits; San Antonio currently is only testing stranger rapes2 • Los Angeles, Cleveland and the State of Illinois recently enacted policies to mandate testing of all rape kits; other jurisdictions are considering it • Property Crime • Property crime DNA evidence typically not collected in Texas (except in Harris County and the City of Austin) • Several Texas agencies have approached Orchid Cellmark about testing their property crime evidence (FBI regs have kept the process from moving forward) • Texas property crime insurance claims are up 9% (Allstate) despite national drop in property crime rates3 1) Rape kit data by the numbers, CBS News, November 10, 2010; 2) SAPD analyzing 121 un-tested kits from ‘stranger rape’ cases; KENS TV 5 San Antonio, Feb 8, 2010 ; 3) Home burglaries increase 9% in Texas, PR Newswire, July 14,2010

5. Public-private partnerships augment but do not replace public labs • High profile, complex cases worked by public lab • Maximizes benefit of local interaction with law enforcement • Cases less amenable to high-throughput • High volume, less complex, no-suspect cases worked by private lab • Most cases can be done with minimal law enforcement interaction • Private labs perform expert testimony as needed (typically about 2% of cases) • Public lab takes on high volume crime as capacity allows • Partnerships are not just for backlog reduction; once the backlog is eliminated the partnership can be maintained to ensure that the backlog does not reoccur • Private lab use can be ramped up or down quickly based on budget constraints and law enforcement needs

6. Arguments for and against expanding public-private partnerships for DNA testing • Arguments for • Greatly reduced costs • Greatly reduced turn-around time • Financial flexibility: 100% variable costs • Reduced implementation time • Ability to get specific output for specific cost • Arguments against • Process to upload results into CODIS • Cost of expert testimony • Concerns about quality • Potential for private lab change of ownership • Chain of custody concerns • Importance of completing 100% of forensic DNA testing using government employees

7. Examples of how private lab costs are significantly less than public lab variable costs • SWIFS (Dallas) and Bexair County: Public labs that charge law enforcement • Charges 30%-50% more than private lab contract costs for same service1 • Does not count subsidies provided by the county to cover fixed costs • Texas DPS: variable cost for database testing estimated at $34 per sample; private lab contracts for this work have been awarded for as little as $22 per sample2 • San Francisco City Controller Audit of crime lab estimated variable costs at $3,100 per case ($1.4MM/yr, 450 cases/yr).3 Private lab costs typically average close to $1,100 per case (including testimony and CODIS upload costs) • National Institute of Justice Property Crime Study • Variable costs of public lab estimated at $460 per sample (no rework) 4 • Total private lab costs currently as low as $245 per sample (no rework)5 • The cost per case to use federal grant money for overtime and equipment is approximately 2.5 times that to work with private labs6 1) Orchid Cellmark comparison of published price lists with average Texas private lab contract prices; 2) Texas SB00727; 3) San Francisco Police Department: Cost Estimates for Achieving Operational Effectiveness in Crime Lab Operations, San Francisco Office of the Controller, June 15, 2010; 4) NCJ 222318, April, 2008, assumes 50% of analyst time is in production; 5) Orchid Cellmark 2010 published pricing; 6) NCJ 230183, June,2010 and Orchid Cellmark estimates

8. The fixed costs to expand capacity can equal the cost of testing the incremental cases with a private lab over several years • Example 1: Automation • Houston PD requested $7MM in funding to fully automate and improve the process efficiency in their lab1 • Funding needed to expand capacity to take on additional 720 cases per year1 • The same $7MM would fund a private lab to do the incremental work for 8-10 years • $7MM does not count the cost of actually doing any testing • Example 2: Capacity expansion • Harris County proposal to expand capacity to take on 75 Houston PD cases per month that are being added to the backlog was $1.3MM in one-time costs (not testing variable costs) plus an additional $500K per year in rent2 • The same money could fund a private lab to do the incremental work for 4-5 years • A more recent proposal to build a new DNA facility to test all Harris County and HPD DNA evidence is estimated to cost $20MM per year (separate up front costs were not identified)3 • It would cost roughly $2MM-$2.5MM per year for a private lab to keep up with the current HPD DNA testing demand and $5MM per year to keep up with HPD and Harris County demand 1) http://jacksonlee.house.gov/AppropriationsRequests/HoustonPD.htm; 2) Regional crime lab considered by city, county, May 24, 2010 Houston KTRK; 3) HPD crime lab backlog delays trials, Houston Chronicle, Sept. 28, 2010

9. Private labs have many structural advantages that help minimize their cost • Economies of scale • Private labs: one large facility • Most large states have several small labs • The need to compete for contracts on cost • Dedicated R&D focused on process improvement • Dedicated IT focused on process efficiency improvement • Managers with process engineering expertise • Minimal use of overtime in the private sector

10. The UK provides a case example of the turn-around time benefits of working with private industry; in addition, zero backlog and reduced costs have been achieved Required Turn-Around Time (Calendar Days) for Forensic DNA Testing in the UK (example) Expected Turn-Around Time (Days) *45 days represents the turn-around time expected for all forensic testing required, not just DNA testing

11. US private lab turnaround time is dependent on contract terms and consistency of case receipts • Turn-around time goals for private labs are usually set as part of the contract and range from 30 days to 90 days • If work is sent on a weekly basis and volume does not fluctuate wildly from week to week, US private labs can typically complete testing within 30 days • The greater the percentage of private lab customers that send work on a weekly (regular) basis (versus intermittently when a backlog hits critical mass), the closer US private labs can get to reaching UK standards • To ensure turn-around time in small labs (Texas DPS has several small DNA labs), they must staff to excess capacity • Case flow is not constant • Small labs are more likely to fall behind when there is employee turnover • Staff must be taken out of production to train replacements • Equipment or contamination problems (which can occur in any lab) have a disproportionately severe impact on small labs

12. Increased ability to vary demand and the ability to link cost, service, and output are other advantages of public-private partnerships • Public lab capacity expansion can take years to complete; the public remains at risk during the time the expansion is implemented • It is difficult to cut back public lab expenditures should demand for testing drop (e.g., due to reduced crime rates); much of the costs invested are fixed costs • Private lab costs are 100% variable costs to the state; testing can be cut back if there are budget constraints and expanded rapidly if demand requires it and there is available budget • Contracts with private lab costs specify per unit sample testing costs and a required turn-around time • Investments to expand public lab capacity are not accompanied by specific productivity requirements (i.e., the number of samples processed and timeliness of processing is not linked to funding)

13. The cost of CODIS upload and expert testimony is not prohibitive • CODIS upload • The FBI requires that public lab employees recheck 100% of private lab work uploaded to CODIS (no independent check of public lab work is required) • This review can take up to four hours per case but if done efficiently and with a quality private lab that can produce user-friendly case files, 90 minutes per case is routinely achieved • At $40 per hour, the cost to perform the review in an efficient scenario is about $60 per case • At most, about 80% of cases will yield a DNA profile which makes the weighted average cost just under $50 per case. • Expert testimony • Very few cases with DNA evidence go to trial and require expert testimony • Cellmark averages a testimony rate of about 2.5% of cases processed, even in the months since the Melandez-Diaz ruling • Average contract fees and expenses for Cellmark to testify in Texas are typically around $2,000 per day • This results in a weighted average of about $50 per case for expert testimony

14. Forensic DNA testing quality is something that can and should be measured • The key component of quality is the success rate obtaining usable DNA profiles from crime scene evidence • UK law enforcement conducts pilot studies where large numbers of similar sample types are randomly distributed to two labs to see which lab performs better • Success is also measured after contract award • Large private labs like Cellmark measure success rates and have dedicated R&D to continuously improve it • Public labs rarely have the resources to measure internal success rates or create a dedicated R&D function • Large private labs like Cellmark also implement quality controls that exceed minimum standards to prevent errors • Automated systems for preventing profiles that are due to contamination from being entered into CODIS • Automated systems to fingerprint plates, track plate orientation, and perform critical calculations • Public labs rarely have the resources to automate these functions

15. Private lab change of ownership has not caused any problems in recent years • ReliaGene and IdentiGene are the only major private labs to change ownership in the last several years • In both cases, the acquiring companies assumed the responsibility for all contracts and testing continued without interruption • If there is concern a private lab could go out of business, eligibility to win major contracts can be limited to private labs that meet minimum financial criteria • Supplier financial statements can be reviewed annually (or more frequently) to determine if there is any change in risk and appropriate actions taken before a problem occurs • Secondary labs can be put onto contracts in case something should happen to the primary lab • Should a private lab be sold or go out of business, employees still must testify when called (just like public lab employees if they quit/retire) • All data and evidence is property of law enforcement and is returned to them after a designated period of time

16. Other considerations • Chain of custody • Breach of chain of custody is rarely, if ever a problem – Cellmark’s Dallas facility has not had a single issue with chain of custody in several years covering tens of thousands of cases and hundreds of customers • Courier services are very reliable • Process to maintain chain of custody is relatively straightforward • Importance of performing 100% of work using government employees • This importance will vary greatly by the politics of the state, city, and county: yellow pages test • Policy makers must decide how the importance of this factor ranks against cost-savings or other benefits public-private partnerships for DNA testing may bring

17. Evaluating options • Determine if federal DNA backlog reduction grant money is being spent as efficiently as possible • Breakdown of spending on overtime, private labs, equipment • Cases completed with each spending type • When additional capacity is required, an independent agency can compare the cost of public-private partnerships with the cost of public lab capacity expansion to aid in the decision-making process • Make sure all fixed and variable public lab costs are measured in any comparisons • Not every state/city/county will opt to use a public-private partnership but it is still important to objectively determine how the cost savings and other benefits of a public-private partnership are offset by other considerations so that an informed decision is made