2003 LEGISLATIVE UDATE
Southern Association of
Forensic Scientists
Savannah Meeting
May 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
Smith Alling Lane
A Professional Services Corporation
Governmental Affairs
Attorneys at Law
FORENSIC DNA ISSUES &
THE STATE LEGISLATURES

Offender DNA Databases

Statute of Limitations / John Doe Warrants

Post Conviction DNA Testing

Related Legislation
ISSUE #1
OFFENDER DNA
DATABASES
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
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
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
The Recent Trend To All Felons
1998 - 5 States
1999 - 6 States
2000 - 7 States
2001 - 14 States
2002 - 23 States
2003 – 26 States
Legislation pending in 14 states
2006 - 45 States (est.) -- assuming data and funding
State DNA Database Statutes
(As of May 1, 2003)
STATE
Sex
Crimes
Murder
All
Violent
Crimes
Burglary
Drug
Crimes
All
Felons
Alabama






Alaska




Arizona






Arkansas






California




Colorado




Connecticut

Delaware






Florida







Georgia







Hawaii


Idaho



Illinois




Indiana




Iowa






Kansas






Kentucky


Louisiana



Some
Misdemeanors
Jailed
Offenders
Community
Corrections
Retroactive
Jail &
Prison









*
















Juveniles
Arrestees/
Suspects
Retroactive
Probation &
Parole

















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


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



















Some
Misdemeanors
STATE
Sex
Crimes
Murder
All
Violent
Crimes
Burglary
Drug
Crimes
All
Felons
Maine








Maryland









Massachusetts






Michigan










Minnesota










Mississippi









Missouri






Montana





Nebraska





Nevada






New Hampshire









New Jersey







New Mexico









New York







North Carolina






North Dakota






Ohio







Oklahoma







Oregon




Pennsylvania





Juveniles











Arrestees/
Suspects
Jailed
Offenders
Community
Corrections
Retroactive
Jail &
Prison
Retroactive
Probation &
Parole
















STATE
Sex
Crimes
Murder
All
Violent
Crimes
Burglary
Drug
Crimes
Rhode Island





South Carolina





South Dakota







Tennessee

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
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

Texas



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
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
Utah



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


Vermont




Virginia







Washington



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


West Virginia





Wisconsin






Wyoming





TOTALS
50
49
45
41
31
Some
Misdemeanors
Retroactive
Jail & Prison
Retroactive
Probation &
Parole














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















26
31
46
46
31
17
All
Felons
Juveniles
Arrestees/
Suspects


Jailed
Offenders
Community
Corrections





23
4
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)
Failed to pass all felons legislation (4)
Introduced limited expansion legislation (2)
2003 DNA Database Legislation
(As of May 1, 2003)
ST
Bill
#
Sponsor
AK
HB
49
Anderson
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.
AR
HB
1074
Verkamp
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
AR
HB
2310
Pate
Limits qualifying offenses for juvenile adjudications to only serious sexual assaults, murder, kidnapping, and
aggravated robbery, and terrorist acts.
ENACTED
AR
SB
416
Gullett
Expands DNA database to include crimes of computer child pornography and computer exploitation of a child
(1st degree).
ENACTED
AZ
SB
1252
Brotherton
CA
SB
284
Brulte
CO
SB
128
CT
HB
FL
HI
HI
Summary
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.
Status
Passed House
Died in Committee
Expands DNA database to include all convicted felons.
Committee
Hearing on 5/06
Grossman
Local law enforcement may take DNA samples from felony arrestees, but must pay for crime lab analysis.
Passed Policy &
Fiscal Committee
5022
Berger
Expands DNA database to include all convicted felons. Applies retroactively to probationers and parollees.
Passed Policy
Committee
SB
1648
Criminal
Justice
HB
1065
Mindo
HCR 214
Marumoto
Requires jails and juvenile facilities to collect DNA from qualifying offenders for the DNA database. Allows
blood or other specimen.
Expands DNA database to include all convicted felons. Retroactive to include probationers and parolees.
Died in Committee
Requests an interim study on expanding the DNA database to include all Class A and Class B felons.
Died in Committee
State Police
Expands DNA database to include burglary.
Request
ID
HB
48
IN
HB
1531
Goodin
LA
SB
346
Dardenne
ENACTED
Expands DNA database to include all convicted felons. Includes felons not sentenced to incarceration, and
retroactive to include currently incarcerated.
Expands offender DNA database to include all felony convictions and arrestees, as well as prostitution and
soliciting prostitution. Also expands the DNA database to include samples from juveniles adjudicated of felonygrade delinquent acts.
Died in Committee
Died in Committee
Passed Senate
ST
Bill
#
Sponsor
MA
SB
187
Jacques
MD
SB
363
Miller
ME
HB
300
Faircloth
MN
SB
239
MO
HB
MO
Summary
Expands DNA database to include all convicted felons. Retroactive to include currently incarcerated,
probationers, and parolees.
Status
Committee
Hearing on 5/07
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
Expands the current all-felons DNA database requirement to include juveniles adjudicated delinquent.
Died in
Committee
Kleis
Makes permanent last year’s DNA database expansion to include all convicted felons.
Budget
negotiations
54
Jolly
Expands DNA database to include all convicted felons. Includes pleas of guilty and nolo contendre. Retroactive
to include probation and parole.
Committee
Hearing on 4/15
SB
198
Caskey
Expands DNA database to include all convicted felons. Includes pleas of guilty and nolo contendre. Retroactive
to include probation and parole.
Committee
Hearing on 4/07
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
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.
Designated
Priority Bill
NE
LB
662
Beutler
Expands DNA database to include all convicted felons and juvenile felony adjudications. Retroactive to include
persons currently incarcerated.
Committee
hearing on 2/27
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.
Passed
Assembly
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.
Passed
Policy
Committee
NV
HB
55
Alexander
Anderson
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.
Expands offender DNA database to include failure to register with law enforcement as required for a crime
against a child or for sex offenses.
Passed Policy
Committee
Passed House
and Senate.
Needs
Concurrence.
ST
Bill
#
Sponsor
Summary
NY
HB
2131
NY
HB
5271
Ferrara
Expands offender DNA database to include attempts at felonies currently required to submit DNA to the state
database.
Committee
NY
SB
138
Maltese
Requires DNA samples from any person arrested for an offense for which fingerprints are taken.
Committee
OR
SB
729
Minnis
Expands offender DNA database to include all Class A misdemeanors
Died in
Committee
PA
HB
835
Maitland
Expands DNA database to include all convicted felons. Retroactive to include currently incarcerated.
Committee
RI
HB
6104
Dennigan
Expands DNA database to include all convicted felons.
Committee
Hearing 3/26
RI
SB
739
Damiani
Expands DNA database to include all convicted felons.
Committee
Hearing 4/30
SC
SB
263
Moore
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
SD
SB
184
Abdallah
TX
HB
562
McCall
Requires immediate DNA collection from capital murder (current statute is for all felons but is awaiting funding
for implementation)
Passed House
UT
HB
107
Adams
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
VT
HB
133
Kainen
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.
Committee
WV
HB
2693
Stemple
Expands DNA database to include all convicted felons.
McLaughlin Requires DNA samples from any person arrested for an offense for which fingerprints are taken.
Expands offender DNA database to include all convicted felons, and juvenile adjudications Retroactive to
include currently incarcerated and others still under state supervision.
Status
Committee
ENACTED
Passed House.
Died in Senate.
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 nonviolent felonies (including burglary and drug crimes).
~January 2002 Report “The First 100 Hits.”
 February 2000 – July 2001
 104 crime scenes matched with 102 offenders.
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 of 10.2 felony
and 5.6 misdemeanor arrests.
 Over all, offenders averaged 11.9 prior arrests and 5.5 prior
convictions for felony or misdemeanor offenses
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
Emerging Database Trends
Misdemeanor Convictions
Connecticut HB 5353 – All misdemeanor convictions
Not passed
Louisiana (multiple) – prostitution and soliciting a prostitute
Pending
Oregon SB 729 – Class A misdemeanors.
Not passed
Vermont HB 133 – caregiver sex abuse, poss. of child porn
Not passed
Emerging Database Trends
Felony Arrests
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 Trends
Felony Arrests
Arizona SB 1252 -- Felony arrests
Failed
Colorado HB 128 -- Felony arrests
Pending
Louisiana (multiple) -- Felony arrests
Pending
Nevada HB 55 – Volunteered and court ordered suspect
samples into CODIS
Failed
New York (multiple) – fingerprintable arrests
Pending
Emerging Database Trends
Felony Arrests
THEMES
 Limited to certain felony offenders
 Expungement requirements
ISSUES
 Local collection burden
 Funding
 Cannot be uploaded to national index
ISSUE #2
STATUTE OF
LIMITATIONS & DNA
STATUTE of LIMITATIONS
& FORENSIC DNA
Legislation Considered by States
1. Elimination
2. Elimination / Extension if a DNA profile from the
crime scene is available
3. Extension for a set number of years
4. Codification of “John Doe” warrants or
indictments
STATUTE OF LIMITATIONS
LEGISLATION (since 2000)
2003 STATUTE OF
LIMITATIONS LEGISLATION
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
ISSUE #3
POST CONVICTION
DNA TESTING
POST CONVICTION
LEGISLATION (since 2000)
2003 POST CONVICTION
LEGISLATION
POST CONVICTION
DNA TESTING
Legislation Considered by States
1. Limited period for motions
2. Death Row / Lifer v. All felons
3. Innocence maintained / Identity an issue
4. Testing costs
5. Penalties
ISSUE #4
RELATED
LEGISLATION
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.
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
FORENSIC DNA ISSUES &
THE FEDERAL GOVERNMENT

DNA Initiative

DNA Casework and Offender Backlogs
Authorization and Appropriation

National Studies
President Bush’s
DNA INITIATIVE
Announced March 2003
To be overseen by US Department of Justice (NIJ)
ONE
BILLION
DOLLARS
DNA INITIATIVE
Funding Measures
$1
over five years
$232.6 million requested for FY 2004
 Eliminating Backlogs
Casework Backlogs
Offender Backlogs
Federal Offenders
 Crime Lab Capacity
Public Lab Capacity
FBI Forensics
CODIS
 Research & Development
Improving DNA
FBI R&D
Demonstration projects
Nat’l For. Sci. Commiss.
$92.6 million
$76.0
$15.0
$1.9
$90.4 million
$60.0
$20.5
$9.9
$24.8 million
$10.0
$ 9.8
$ 4.5
$ 0.5
DNA INITIATIVE
Funding Measures
 Criminal Justice Training
Law Enforcement
Prosecutors, Defense, Judges
Corrections, Probation, Parole
Forensic Scientists
Medical Services
Victim Services
$17.5 million
$3.5
$2.5
$1.0
$3.0
$5.0
$2.5
 Post Conviction Issues
$5.0 million
 Missing Persons
$2.0 million
DNA INITIATIVE
Policy 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”
TURNING AN INITIATIVE
INTO LAW
White House / DOJ
DNA Initiative Proposal
Congress
Congress
Authorize spending programs
Appropriates funding
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)
Sen. Orrin Hatch (R-UT)
Judiciary Committee Chair
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)
Rep. James Sensenbrenner (R-WI)
Judiciary Committee Chair
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 2005
$25 million in 2006
$25 million in 2007
2. Unsolved Casework Reauthorization
$75 million in 2004
$75 million in 2005
$25 million in 2006
$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
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
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
FORENSIC DNA ASSESSMENT
PROJECT
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
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
Questions ?
www.dnaresource.com
lhurst@smithallinglane.com