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Forensic DNA Issues & the State Legislatures: Offender DNA Databases, Statute of Limitations, Post Conviction DNA Testin

This presentation discusses the legislative timeline and trends related to forensic DNA issues, including offender DNA databases, statute of limitations, post-conviction DNA testing, and related legislation. It also highlights the successes of DNA databases in Virginia, Florida, and New York.

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Forensic DNA Issues & the State Legislatures: Offender DNA Databases, Statute of Limitations, Post Conviction DNA Testin

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  1. 2003 LEGISLATIVE UDATE Southern Association ofForensic ScientistsSavannah MeetingMay 5, 2003 Presented by: Smith Alling Lane, P.S. Tacoma, WA (253) 627-1091 Washington, DC (202) 258-2301 London 0 (44) 798 953 8386 Lisa Hurst lhurst@smithallinglane.com

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

  3. FORENSIC DNA ISSUES & THE STATE LEGISLATURES • Offender DNA Databases • Statute of Limitations / John Doe Warrants • Post Conviction DNA Testing • Related Legislation

  4. ISSUE #1 OFFENDER DNA DATABASES

  5. U.S. DNA 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

  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 - 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 - 9 more states laws, for a total of 23 states with all felon laws - Continued reliance on both Virginia data and federal funds - Congress discusses additional DNA legislation - Virginia enacts legislation requiring DNA from arrestees

  8. 2003 – 26 States Legislation pending in 14 states The Recent Trend To All Felons 1998 - 5 States 1999 - 6 States 2000 - 7 States 2002 - 23 States 2001 - 14 States 2006 - 45 States (est.) -- assuming data and funding

  9. State DNA Database Statutes(As of May 1, 2003)

  10. 2003 Legislative Session: DNA Database Expansion Bills Pending all felons legislation (14) Currently an all-felons state (23) Enacted all felons legislation in 2003 (3) Introduced limited expansion legislation (2) Failed to pass all felons legislation (4)

  11. 2003 DNA Database Legislation(As of May 1, 2003)

  12. DNA DATABASE SUCCESSES • Virginia Database Statistics • Over 1100 DNA database hits • 85% of hits would have been missed if database limited to only violent offenders. • Florida Database Statistics • 52% of Florida offenders linked to sexual assaults and homicides by DNA database matches have had prior burglary convictions. • New York Database Statistics • 1999 New York law expands DNA database to include many non-violent felonies (including burglary and drug crimes). • January 2002 Report “The First 100 Hits.” • February 2000 – July 2001 • 104 crime scenes matched with 102 offenders.

  13. New York DNA Database Study FIRST 100 HITS: FINDINGS • In 33 hits the police reported having "no suspect" at the time the DNA evidence was submitted • 75% of the offenders were under some form of criminal justice control (18% on parole, 11% on probation) • For 55 of the 102 matched offenders: • The first conviction was not for a DNA index offense • The qualifying offense occurred 4½ years later, during which time these offenders accumulated an average of10.2 felony and 5.6 misdemeanor arrests. • Over all, offenders averaged 11.9 prior arrests and 5.5 prior convictions for felony or misdemeanor offenses

  14. Emerging Database Trends Misdemeanor Convictions • Some states require DNA from specific misdemeanors Alabama, Arkansas, Arizona, Kansas, Iowa, Maine, Maryland, Michigan, Minnesota, 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 • Peeping • False imprisonment • 4th degree burglary

  15. Emerging Database TrendsMisdemeanor Convictions • Connecticut HB 5353 – All misdemeanor convictions • Not passed • Louisiana (multiple) – prostitution and soliciting a prostitute • Pending 2003 Legislation • Oregon SB 729 – Class A misdemeanors. • Not passed • Vermont HB 133 – caregiver sex abuse, poss. of child porn • Not passed

  16. Louisiana, Texas, and Virginia are authorized to collect from • certain felony arrests at various stages of pre-conviction. California authorizes samples collected from certain felony suspects to be maintained on the database for two years. Emerging Database TrendsFelony Arrests

  17. Emerging Database TrendsFelony Arrests Arizona SB 1252 -- Felony arrests Failed Colorado HB 128 -- Felony arrests Pending • Louisiana (multiple) -- Felony arrests • Pending 2003 Legislation Nevada HB 55 – Volunteered and court ordered suspect samples into CODIS Failed New York (multiple) – fingerprintable arrests Pending

  18. Emerging Database TrendsFelony Arrests THEMES • Limited to certain felony offenders • Expungement requirements ISSUES • Local collection burden • Funding • Cannot be uploaded to national index

  19. ISSUE #2 STATUTE OF LIMITATIONS & DNA

  20. STATUTE of LIMITATIONS & FORENSIC DNA Legislation Considered by States • Elimination • Elimination / Extension if a DNA profile from the crime scene is available • Extension for a set number of years • Codification of “John Doe” warrants or indictments

  21. STATUTE OF LIMITATIONS LEGISLATION (since 2000)

  22. 2003 STATUTE OF LIMITATIONS LEGISLATION

  23. STATUTE of LIMITATIONS & FORENSIC DNA • Backlogs mean some investigators must wait months, even years for analysis of low-priority cases. New York - 16,000 unanalyzed rape kits. • DNA is solving crimes considered “cold” for over 20 years. • Continuing push to give DNA databases a chance to work. • Milwaukee “solved case” protocol • California v. Stogner

  24. ISSUE #3 POST CONVICTION DNA TESTING

  25. POST CONVICTION LEGISLATION (since 2000)

  26. 2003 POST CONVICTION LEGISLATION

  27. POST CONVICTION DNA TESTING Legislation Considered by States • Limited period for motions • Death Row / Lifer v. All felons • Innocence maintained / Identity an issue • Testing costs • Penalties

  28. ISSUE #4 RELATED LEGISLATION

  29. OTHER BILLS • Samples in the database by mistake do not invalidate an arrest or conviction • Mandated accreditation, forensic science review commissions – New Jersey, Texas, Missouri, others • Missing persons programs – New Mexico, New York • Victims DNA Bill of Rights – California, Massachusetts, Federal • California HB 155 – “Good cause” for continuance includes the temporary unavailability of requested DNA analysis results • Illinois HB 3354 -- Defendants may make a motion for a court order before trial for DNA analysis and database comparison • Louisiana SB 1956 – Requires DNA samples from new law enforcement officers • Texas HB 661 – Extends the allowable time for execution of a search warrant for DNA from 3 days to 20 days.

  30. STATE FUNDING EFFORTS • Earmarks Targeted spending for specific problems • California state DNA grant program • North Carolina rape kit focus (2003) • Louisiana serial killer investigation (2003) • But, earmarks are one-time deals – not a reliable source • Other Sources Needed For example • Arizona 3% assessment on all civil penalties and traffic fines • Similar efforts in Indiana and New York • Ohio Victims of Crime/Reparation Fund • Offender Pays (Ranges from $25 to $250) • Local jurisdiction pays for testing • United Kingdom method • Florida & California budget proposal • Current practice at many local and regional labs • Delayed implementation • Scheduled roll-out (Arizona and Florida) • Upon sufficient funding

  31. FORENSIC DNA ISSUES & THE FEDERAL GOVERNMENT • DNA Initiative • DNA Casework and Offender Backlogs Authorization and Appropriation • National Studies

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

  33. ONE BILLION DOLLARS

  34. DNA INITIATIVEFunding Measures BILLION $1 over five years $232.6 million requested for FY 2004 • Eliminating Backlogs $92.6 million Casework Backlogs $76.0 Offender Backlogs $15.0 Federal Offenders $1.9 • Crime Lab Capacity $90.4 million Public Lab Capacity $60.0 FBI Forensics $20.5 CODIS $9.9 • Research & Development $24.8 million • Improving DNA $10.0 • FBI R&D $ 9.8 • Demonstration projects $ 4.5 • Nat’l For. Sci. Commiss. $ 0.5

  35. DNA INITIATIVEFunding Measures • Criminal Justice Training $17.5 million • Law Enforcement $3.5 • Prosecutors, Defense, Judges $2.5 • Corrections, Probation, Parole $1.0 • Forensic Scientists $3.0 • Medical Services $5.0 • Victim Services $2.5 • Post Conviction Issues $5.0 million • Missing Persons $2.0 million

  36. DNA INITIATIVEPolicy Measures • Expand state databases to include all felons • Expand federal database to include all felons • Apply expanded database statutes retroactively, to include those “under supervision” • Allow inclusion of other DNA samples “collected under applicable legal authority”

  37. TURNING AN INITIATIVE INTO LAW White House / DOJ DNA Initiative Proposal Congress Authorize spending programs Congress Appropriates funding

  38. 2003 FEDERAL DNA LEGISLATION BILLS INTRODUCED IN THE SENATE: S. 149 - Rape Kits and DNA Evidence Backlog Elimination Act Senator Mike DeWine (R-OH) S. 152 - Sexual Assault Justice Act Senator Joseph Biden (D-DE) S. 22 - Justice Enhancement and Domestic Security Act Senator Tom Daschle (D-SD) BILLS INTRODUCED IN THE HOUSE: H.R. 537 - DNA Database Completion Act of 2003 Representative Robert Andrews (D-NJ) H.R. 89 - Stop the Violent Predators Against Children DNA Act Representative Shelia Jackson Lee (D-TX) Sen. Orrin Hatch (R-UT) Judiciary Committee Chair Rep. James Sensenbrenner (R-WI) Judiciary Committee Chair

  39. S. 149 Rape Kits and DNA Backlog Elimination Act(Proposed prior to DNA Initiative) 1. Convicted Offender Reauthorization $ 25 million in 2004 $25 million in 2006 $ 25 million in 2005 $25 million in 2007 2. Unsolved Casework Reauthorization $75 million in 2004 $25 million in 2006 $75 million in 2005 $25 million 2007 3.Local Agencies May Apply Directly for Unsolved Casework Grants 4. Authority to upload any legally collected sample into the national database (arrestees/juveniles) 5. All felons for Military and Federal Crimes

  40. FY 2003 FEDERAL DNA GRANTS • No Suspect Casework • Awards begin in late June, to roll out as requests receive final approval • $55 million in requested awards • $35 million in appropriated funding • Only the first year of the 2-year grant request will be funded in 2003 • 2004 grant solicitation not expected until next year • Offender Profile Outsourcing • A federal program (not a grant) to pay for outsourcing offender analysis • NIJ will procure DNA analysis services from pre-approved private labs • A seamless mechanism for sending out convicted offender samples • Operational by the beginning of May ? • “Non-supplanting funds" rules will apply to this program

  41. DNA FUNDING ISSUES • Heavy reliance on federal funding which may not always be available • Backlogs are typically the result of funding levels that have not kept up with demand for DNA testing • States with the best DNA programs have traditionally had strong support in state funding • Local responsibility in funding casework is likely to increase

  42. FORENSIC DNAASSESSMENTPROJECT NIJ has asked Smith Alling Lane and Washington State University to develop the following data: • What is the “Hit Rate”? • What is the true backlog for homicides and rapes? • How much crime could be prevented with larger databases? • What do DNA programs need? • What are the savings to law enforcement when DNA is used? • Comparative analysis to the United Kingdom Assessment completion date - Summer 2003

  43. OTHER PROJECTS • International Association of Chiefs of Police • DNA Summit in April 2003 • Summit document out this fall • Other Studies • NIJ Victims Office, Santa Monica Rape Treatment Center • Best practices

  44. Questions ? www.dnaresource.com lhurst@smithallinglane.com

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