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Tim Schellberg tims@smithallinglane

AMERICAN PROSECUTORS RESEARCH INSTITUTE DNA: JUSTICE SPEAKS THE EXPANSION OF FORENSIC DNA AND ITS RELATIONSHIP TO STATE LEGISLATURES AND CONGRESS November 20, 2003. Presented by: Smith Alling Lane, P.S. Tacoma, WA (253) 627-1091 Washington, DC (202) 258-2301

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Tim Schellberg tims@smithallinglane

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  1. AMERICAN PROSECUTORS RESEARCH INSTITUTEDNA: JUSTICE SPEAKSTHE EXPANSION OF FORENSIC DNA AND ITS RELATIONSHIP TO STATE LEGISLATURES AND CONGRESS November 20, 2003 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 tims@smithallinglane.com

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

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

  4. ISSUE #1 Offender DNA Database Expansion

  5. 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

  6. 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

  7. 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

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

  9. Virginia’s “Cold Hits” on the DNA DatabaseAll Drug Offenders to Type of Crime Solved

  10. Virginia’s “Cold Hits” on the DNA DatabaseDrug Possession Only to Type of Crime Solved

  11. Virginia’s “Cold Hits” on the DNA DatabaseForgery to Type of Crime Solved

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

  13. The Recent Trend To All Felons 1998 - 5 States 1999 - 6 States 2000 - 7 States 2002 - 22 States 2001 - 13 States 2003 – 31 States 2006 - 45 States (est.) -- assuming data and funding

  14. 2003 Legislative Session: DNA Database Expansion Bills * * * Currently an all-felons state (22) Enacted all felons legislation in 2003 (9) Introduced but failed to pass limited expansion legislation (1) Failed to pass all felons legislation (8) * Addressed sunset provisions in database statute

  15. 2003 DNA Database Legislation(As of November 2003)

  16. ST Bill # Sponsor Summary Status MA SB 187 Jacques Expands DNA database to include all convicted felons. Retroactive to include currently incarcerated, probationers, and parolees. ENACTED MD SB 363 Miller 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 ME HB 300 Faircloth Expands the current all-felons DNA database requirement to include juveniles adjudicated delinquent. ENACTED MN SB 239 Kleis Makes permanent last year’s DNA database expansion to include all convicted felons. ENACTED (in budget bill) MO HB 54 Jolly Expands DNA database to include all convicted felons. Includes pleas of guilty and nolo contendre. Retroactive to include probation and parole. Died in Committee MO SB 198 Caskey Expands DNA database to include all convicted felons. Includes pleas of guilty and nolo contendre. Retroactive to include probation and parole. Died in Committee MS SB 2348 Carlton 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 NC HB 79 Alexander 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. ENACTED ND HB 1235 Klemin Removes a sunset provision in current statute which would have had the effect of shrinking the state DNA database to only sex offenders. ENACTED NE LB 139 Johnson Clarifies that the state DNA database can be used for forensic casework related to missing persons, relatives of missing persons and unidentified human remains. Died in Senate NE LB 662 Beutler Expands DNA database to include all convicted felons and juvenile felony adjudications. Retroactive to include persons currently incarcerated. Died in Senate NJ HB 2617 Johnson 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. ENACTED NJ SB 2066 Sacco 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. See HB 2617 NV HB 55 Anderson Expands offender DNA database to include failure to register with law enforcement as required for a crime against a child or for sex offenses. ENACTED

  17. State DNA Database Statutes(As of September 2003)

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

  19. *9th Circuit Court decision (US v. Kincaid) was applicable to federal DNA database statute for retroactive probationers and parolees

  20. Perfecting Existing All Felons Statutes “All Felons” states that are not ALLFELONS: • Not Retroactive Colorado Delaware Georgia Iowa Minnesota Tennessee Texas Wisconsin • No Juveniles Delaware Iowa Maryland Mississippi • No Jailed Offenders Colorado Georgia Texas • No Community Corrections Colorado Texas

  21. 5,600 annually 5,600 annually all felons vs. ALL FELONSImpacts of Legislation Felons serving time in prison Felons serving time in jail 15,000 annually Juveniles 7,952 annually Felons on community corrections 840 annually Retroactive Prison 6,1000 Retroactive Jail 1,863 Retroactive Probation/Parole 10,300 Total impact of all felons legislation Total impact of ALL FELONS legislation 23,792 annually 5,600 annually 18,263 retroactive 42,055 in first year Data based on Washington State figures

  22. Emerging Database TrendsExpanding 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

  23. 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 • 3rd degree sexual abuse; Elder abuse • Menacing; Harassment; Stalking • Animal Cruelty • Prostitution & Soliciting prostitutes • Peeping • False imprisonment • 4th degree burglary

  24. Emerging Database TrendsMisdemeanor Convictions • Connecticut HB 5353 – All misdemeanor convictions • Not passed • Louisiana (multiple) – prostitution, soliciting a prostitute, peeping toms, numerous battery and assault crimes • Enacted 2003 Legislation • New Jersey (multiple) – any crime with a 6 month sentence • Enacted • Oregon SB 729 – Class A misdemeanors. • Not passed • Vermont HB 133 – caregiver sex abuse, poss. of child porn • Not passed

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

  26. Enacted Arrestee DNA Testing All felony arrests No expungement requirement No sample destruction requirement Certain felony indictments, or upon arrest if previous conviction for a qualifying offense Expungement required Sample destruction required Violent felony arrests after determination that probable cause exists for the arrest Expungement required Sample destruction required

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

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

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

  30. ISSUE #2 Post Conviction DNA Testing

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

  32. Post Conviction DNA Legislation INTRODUCED(Since 2000)

  33. Post Conviction DNA Legislation ENACTED(Since 2000)

  34. ISSUE #3 Statute of Limitations

  35. 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.

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

  37. ISSUE #4Forensic DNA Funding

  38. 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?

  39. President Bush’sDNA INITIATIVE Announced March 2003 To be overseen by US Department of Justice (NIJ)

  40. Advancing Justice Through DNA Technology (HR 3214, S 1700 & S 1828) • 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

  41. DNA INITIATIVEPolicy 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

  42. State Funding Sources • OFFENDER PAYS • Fees range from $25 to $500. Some states require an assessment to inmate wages. • Problems include enforcement, indigent claims and re-appropriation. • States: Arkansas, Hawaii, Illinois, Louisiana, Michigan, Montana, Nevada, New Mexico, North Dakota, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Virginia, Washington, Wisconsin • EARMARKS • Significant source of funding, but not a permanent solution • State appropriations (ex. Louisiana received $4 million in 2003) • Federal appropriations secured by congressional delegation • PUBLIC SAFETY ASSESSMENT • Excellent source for long-term funding. • 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 • 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) • New Jersey -- $2 surcharge per traffic or motor vehicle violation (state and local), with a report and review in five years

  43. The Future of DNA Funding • Federal • Funding will likely peak in 2009 • State • Stable funding for databasing and some unsolved casework • Local • 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

  44. ISSUE #5Problems

  45. 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

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

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