legislative update: state and federal developments. july 9, 2014
DESCRIPTION
Legislative Update: State and Federal Developments Presented by Lisa Hurst, Gordon Thomas Honeywell Governmental Affairs July 9, 2014 HID University Life Technologies South San Francisco, California, USATRANSCRIPT
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.