Legislative Update State and Federal Developments

Presented by Lisa Hurst Gordon Thomas Honeywell Governmental Affairs July 9, 2014

SOLVE CRIMES

PREVENT CRIMES

SAVE LIVES

Statute of Limitations Post Conviction DNA Access

Evidence Retention Policies

Death Penalty Sentences

John Doe Warrants

Chemical Castration

Criminal Paternity / Statutory Rape

Defense Access to CODIS

DNA Database Expansion

DNA Program Funding Rape Kit Backlog

RAPE KIT BACKLOG

What Differentiates DNA From Other Forensic Disciplines?

Scientific Rigor? Judicial Scrutiny? Source Attribution?

Development of DNA profiles from diverse biological samples – especially semen

Rape Kits are uniquely countable

DEBBIE SMITH DNA BACKLOG ELIMIANTION ACT (III)

Debbie Smith DNA Backlog Elimination Act

$151 million authorized / year

since 2004

$75 Million Grant to public

DNA labs FY 2013 - $2 Million to GA

Enactment prior to October 1, 2014 ensures federal grant program may continue

KATIE SEPICH ENHANCED DNA COLLECTION ACT

One-time funding for states with arrestee DNA database laws

Authorized up to $10 million per year FY

2013-2015 DUE August 7

OTHER GRANT OPPORTUNITIES

SAFER

Funding for rape kit audits (non-lab) Tracking component Solicitation likely in FY

2015

SOLVING COLD CASES

Review and testing of cases with possible biological evidence

$3-$5 Million (est) Solicitation in FY 2014

(biannual) DUE May 27

US SENATE: JUSTICE FOR ALL ACT – S.822

Sen. Mitch McConnell (R-KY) Minority Leader

Sen. John Cornyn (R-TX) Minority Whip

Sen. Patrick Leahy (D-VT) President Pro Tem

Sen. Richard Burr (R-NC) Sen. Susan Collins (R-ME) Sen. Chris Coons (D-DE) Sen. Diane Feinstein (D-CA) Sen. Al Franken (D-MN) Sen. Orrin Hatch (R-UT)

Sen. Amy Klobuchar (D-MN) Sen. Mary Landrieu (D-LA) Sen. Rob Portman (R-OH) Sen. Charles Schumer (D-NY) Sen. Tom Udall (D-NM)

Co-Sponsors

US HOUSE: DEBBIE SMITH REAUTHORIZATION ACT HR 4323

Rep. Jim Sensenbrenner (R-WI) Crime Subcommittee Chair

Rep. Ted Poe (R-TX) Victims Rights Caucus Chair Rep. Carolyn Maloney (D-NY)

Original Debbie Smith Author

Rep. Conyers (D-MI) Judiciary Ranking Member

Rep. Bobby Scott (D-VA) Judiciary Ranking Member

Rep. Goodlatte (R-VA) Judiciary Chair

Rep. Bass (D-CA) Judiciary Committee Member

Co-Sponsors

Debbie Smith DNA Backlog Elimination Act

CURRENT STATUS

April 2013

Introduced

November 2013

Passes Senate Committee

March 28

Passes Senate Democrats

April 7

Republican “hold”

March 27

Introduced

April 3

Passes House Committee

April 7

Passes House Unanimously

April 8

Approved by Senate Republicans

“Debbie Smith is an extraordinary woman and an effective advocate," Senate Minority Leader Mitch McConnell, R-Ky., told the Washington Examiner. "She's personally asked me, John Cornyn and others to pass this critically important legislation that bears her name, and it's deeply disappointing that the majority leader is blocking it from reaching the president's desk. I will fight to get this done for the sake of Debbie and sexual assault victims everywhere.”

Unsubmitted Kits Backlogged

Kits

Crime Labs

Local Law

Enforcement

Potential for significant “growth” in backlogs, opportunities for new technologies and processes

UNITED STATES UNTESTED RAPE KITS

UNSUBMITTED RAPE KITS How Many Are There?

Los Angeles 10,000 Detroit 11,000 Memphis 12,000 Texas 20,000 Illinois 4,000 Phoenix 3,000 Cuyahoga Co (OH) 4,000 Alameda Co (CA) 2,000

66,000

Retained law firm in mid 2014 to assist with open records requests Targeting 15 locations to determine number of unsubmitted kits

2009

2010 Illinois Sexual Assault Evidence Submission Act of 2010

Los Angeles begins testing all old kits. New policy to test all kits collected.

CASE STUDY: MEMPHIS

o Lack of resources – money, staff o CODIS, DNA testing not available o Not-probative - known offender o Uncooperative / unavailable victim o Lack of knowledge about DNA,

databases, sex offender patterns o Not taking sexual assault seriously o Not believing or blaming victims

Reasons for Unsubmitted Kits

STATE SOLUTIONS: TENNESSEE LEGISLATION - 2014

HB 1388 SB 1426 6 day submission for new kits 6 months for DNA analysis July 2015 report on unsubmitted kits Jan 2016 report to Legislature

July 1, 2014 report on unsubmitted kits September 2014 report to legislature

COST: $10 Million year-one, $2 million recurring

COST: Minimal, no fiscal note

Memphis area

NOT Memphis area

HELD OVER ENACTED

COLORADO Statewide policy Timeliness Audit / Inventory Funding

TEXAS Statewide policy Timeliness Audit / Inventory Funding

ILLINOIS Statewide policy Timeliness Audit / Inventory

LOUISIANA Audit / Inventory

TENNESSEE Audit / Inventory

VIRGINIA Audit / Inventory

MICHIGAN Statewide policy Timeliness Audit / Inventory

UTAH Victim Notification

STATE RESPONSES: RAPE KIT BACKLOG LAWS

FY 2015 FUNDING…

$35 million Reducing rape kit backlog

• Support inventories of untested kits • Sexual Assault Kit testing • Needs assessment of current law enforcement

training needs for Sexual Assault investigations • Assessment of “test all kits” • Evidence tracking systems

PRESIDENT’S BUDGET

• Prosecution and investigator resources for following up on Sexual Assault Kit outcomes

• Strengthening cold case units • Enhancing communications of evidence status between

prosecutors, investigators and labs • Law enforcement training in neurobiology of trauma for

victims of sexual assault • Development of victim notification procedures • Enhancement of victim services • Research on preventing sexual assault and improving

system’s response • Effectiveness of SANE/SART programs • Research on best allocation of resources for victim

services

Congress poised to approve $41 million to help clear backlog of untested rape kits June 16, 2014

House Proposal $36 million (increased to $41 million – Cohen amendment) Requires funds be used for front-end law enforcement purposes that have a direct impact on reducing untested kits

MORE likely funds could be used for crime lab analysis Implementation of SAFER Act

Senate Proposal -- $41 million Follows White House blueprint

LESS likely funds could be used for crime lab analysis

DNA DATABASE EXPANSION

KING V. MARYLAND THE MAJORITY OPINION

Kennedy - Reagan

and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

When officers make an arrest supported by probable cause to hold for a serious offense

KING V. MARYLAND THE MAJORITY OPINION

Kennedy - Reagan

and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

When officers make an arrest supported by probable cause to hold for a serious offense

ISSUE 1: Which “probable cause” stage? o All arrests are, in theory, supported by probable cause. o Maryland’s law requires judicial finding of probable cause.

ISSUE 2: What is a “serious offense”? o An offense where a suspect is brought “to the station to be detained in

custody”? o Or Maryland’s law which is limited to violent crimes and burglary?

• Remanded to Federal District Court • Breyer brothers scenario

Harris v. Haskell (CA)

• State Appeals Oral arguments on July 15

State v. Buza (CA)

• State Supreme Court (argued March 2013)

State v. Medina, et al (VT) (Abernathy)

• Appeal to State Supreme Court (?)

State v. Biery (KS)

CONTINUING LEGAL CHALLENGES

ARRESTEE DNA DATABASE STATES Who is Included:

All felony arrests (15) Sex & Violent felonies (3)

Sex, Violent, Burglary felonies (11)

Collection after charges / indictment (2)

Collection at Booking / probable cause (21) Collection at Booking, Analysis/Upload later (7)

ARRESTEE DNA LAWS The Where and When

Automatic Expungement (10)

Expungement on request (19)

Where are samples collected When does expungement occur

FUTURE TRENDS IN STATE STATE DNA DATABASE POLICIES

CONTINUED DATABASE EXPANSION

Public Safety Demand

MARYLAND MODEL?

Collect now, test later

Automatic expungement

Limited to burglary and

violent felonies

MISDEMEANOR EXPANSION

No “database of the

innocent”

No expungement

MANDATED RAPE KIT TESTING

Testing of ALL kits?

Counting and tracking

requirements

Funding?

RAPID DNA

SUCCESS PREDICATED ON

Acceptance of Arrestee DNA Testing

CHANGES NEEDED AT

Federal & State Levels

IMPLICATIONS FOR

Policy & Funding

BYRNE-JAG

FY 2014 Grant Solicitation: If JAG program funds will be used for DNA testing of evidentiary materials, any resulting eligible DNA profiles must be uploaded to the Combined DNA Index System (CODIS, the national DNA database operated by the Federal Bureau of Investigation (FBI)) by a government DNA lab with access to CODIS. No profiles generated with JAG funding may be entered into any other non-governmental DNA database without prior express written approval from BJA. In addition, funds may not be used for purchase of DNA equipment and supplies when the resulting DNA profiles from such technology are not accepted for entry into CODIS.

GRANT OPPORTUNITIES??

RAPID DNA §943.325 Fla. Stat. (11) SAMPLES.—The department will provide the DNA sample collection kits, labels, or other appropriate containers and instructions for the collection of the DNA samples. After collection, the DNA samples shall be forwarded to the department for analysis to determine genetic markers and characteristics for the purpose of individual identification of the person submitting the sample.

RAPID DNA OCGA §24-4-60(b) …The analysis shall be performed by the Division of Forensic Sciences of the Georgia Bureau of Investigation. The division shall be authorized to contract with individuals or organizations for services to perform such analysis. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the bureau in a DNA data bank and shall be made available only as provided in Code Section 24-4-63 OCGA § 24.4.62 …Whether or not the results of an analysis are to be included in the data bank, the bureau shall conduct the DNA analysis in accordance with procedures adopted by the bureau to determine identification characteristics specific to the individual whose sample is being analyzed. The director of the Georgia Bureau of Investigation or his or her designated representative shall complete and maintain on file a form indicating the name of the person whose sample is to be analyzed, the date and by whom the sample was received and examined, and a statement that the seal on the container containing the sample had not been broken or otherwise tampered with.

RAPID DNA US House Committee Report Rapid DNA analysis.—The FBI established the Rapid DNA Program Office in 2010 to develop and integrate instruments for law enforcement use, and provided guidelines for use of Rapid DNA instruments in accredited laboratories. The Committee is also aware that such technology is currently limited to use at accredited laboratories, where results can be uploaded to the FBI Combined DNA Index System database. The Committee urges the FBI to explore ways to develop this capability for application to intake, processing, booking, detention, and incarceration stages, and to recommend to Congress any legislation that may be required to facilitate such implementation.