LEGISLATIVE UPDATELEGISLATIVE UPDATE

DNA Grantees MeetingDNA Grantees Meeting June 28, 2006June 28, 2006

Presented by:

Smith Alling Lane, P.S.Tacoma, WA (253) 627-1091Washington, DC (202) 258-2301Brussels, Belgium (011) 322 550 3744

Lisa Hurstlhurst@smithallinglane.com

Smith Alling LaneSmith Alling LaneGovernment Affairs DivisionGovernment Affairs Division

Tacoma, Washington Washington, DC Brussels, Belgium

OFFENDER DNA OFFENDER DNA DATABASESDATABASES

Trend To All Convicted FelonsTrend To All Convicted Felons1999 - 6 States 2000 - 7 States

2001 - 12 States 2002 - 21 States 2003 – 30 States

2004 – 38 States

1998 – 5 States1997 – 4 States

2005 – 43 States

2006 All Convicted Felons Bills2006 All Convicted Felons Bills

Introduced but did not pass all convicted felons legislation Currently collects from convicted felons

Enacted all convicted felons legislation in 2006

New York LegislationNew York LegislationEvery year, since 2001 Governor Pataki (R) has requested legislation to require DNA from all convicted felons.

Every year, the State Senate (controlled by Republicans) has passed legislation to require DNA from all convicted felons.

Every year, the Speaker of the State Assembly (Democrat) has killed the legislation without giving it a hearing.

Governor George Pataki

Speaker of the Assembly Sheldon Silver

Senate Majority Leader Joseph Bruno

New York Executive Order 143New York Executive Order 143

In December 2005, Governor Pataki issued Executive Order 143

Requires DNA from any convicted felon as part of a plea agreement, and for any early release or community supervision program.

HOWEVER, compliance and collections will be inconsistent without clear statutory authority.

LEGISLATIVE SOLUTION STILL NEEDED

Proposal for ALL convicted criminals endorsed by:

Governor, New York City Mayor, District Attorneys, Chiefs of Police, Sheriffs, victims and victim support groups

Significant media coverage

New York -- Assembly ProposalNew York -- Assembly Proposal

Assembly Bill 11951 -- All convicted felons, and some misdemeanors.

Assembly Bill 11952 –

• Consider expansion to all misdemeanors, BUT requires a study first – including backlogs expected and number of hits that have resulted in conviction

• Outlawed local indexes

• Required notification of requirement for DNA

sample prior to any misdemeanor plea

• Numerous Innocence Project Provisions

New York -- Legislative OutcomeNew York -- Legislative Outcome

Assembly Bill 11951 -- All convicted felons, and some misdemeanors.

PLUS PETTY LARCENY

Prior Law: 14% of all criminal convictions included on the database (18,000 samples per year)

New Law: 50% of all criminal convictions included on the database (40,000 to 60,000 samples per year)

No legislative language regarding local indexes.

WHAT’S NEXT FOR WHAT’S NEXT FOR DATABASING?DATABASING?

Here Come the Arrestees…Here Come the Arrestees…

1990 – Virginia passes first all convicted felons law

All Convicted Felons Laws Arrestees Laws

1997 – Louisiana passes first arrestee law

2007 and Beyond…

8 YEARS LATER…

1998 – 5 states have all convicted felons laws

2005 – 5 states have arrestee laws

8 YEARS LATER…

1999 – 6 states have all convicted felons laws

2006 (to date) – 7 states have arrestee laws

2000 through 2005 sees EXPLOSION 43 states with all convicted felons laws

Trend To Arrestees?Trend To Arrestees?2002 - 3 States

2004 - 4 States 2005 - 5 States 2006 - 6 States (to date)

2001 – 2 States1997 – 1 State

Chicago study of 8 offenders Chicago study of 8 offenders 60 preventable violent crimes, including 30 rapes and 22 murders60 preventable violent crimes, including 30 rapes and 22 murders

Support for Arrestee LegislationSupport for Arrestee Legislation

8 offenders

Offenders accounted for 21 prior felony arrests, only 7 of which were violent felony arrests – two-thirds of prior arrests were for non-violent felonies.

14%

5%

5%

10%

18%5%

14%

5%

5%

19%Agg. Criminal Sex Assault (3)Att. Criminal Sex Abuse (1)Armed Robbery (1)Agg. Battery (2)Theft (4)Burglary (1)Retail Theft (3)Defacing Property (1)Poss. of a Stolen Vehicle (1)Drug Offense (4)

60 unnecessary victims

Offender backlog grants may be used for samples collected under Offender backlog grants may be used for samples collected under “applicable legal authority”“applicable legal authority”

Opens NDIS upload to any DNA sample collected under “applicable Opens NDIS upload to any DNA sample collected under “applicable legal authorities” (prior law required non-convicted offenders to be legal authorities” (prior law required non-convicted offenders to be charged in an indictment)charged in an indictment)

Puts onus on arrested individual to request expungement if no Puts onus on arrested individual to request expungement if no conviction resultsconviction results

US Attorney General may require DNA samples for anyone arrested or US Attorney General may require DNA samples for anyone arrested or for any non-US resident detained under federal authorityfor any non-US resident detained under federal authority

DNA Fingerprint Act (S. 1606)Department of Justice Reauthorization Act (HR 3402. )

Sen. Jon Kyl (R-AZ)

New Mexico New Mexico Katie SepichKatie Sepich

Tennessee Tennessee Johnia BerryJohnia Berry

California California Bruce HarringtonBruce Harrington

Victim VoicesVictim Voices

Subject:Subject: Help Pass Katie's Law -- it will save lives Help Pass Katie's Law -- it will save livesPLEASE HELP PASS KATIE'S LAWPLEASE HELP PASS KATIE'S LAWplease forward to everyone you know that lives in New Mexico!!please forward to everyone you know that lives in New Mexico!!  PLEASE HELP PASS A LAW THAT WILL SAVE LIVES, SOLVE CRIME AND PROTECT THE INNOCENT!!PLEASE HELP PASS A LAW THAT WILL SAVE LIVES, SOLVE CRIME AND PROTECT THE INNOCENT!!  On August 31, 2003, our beautiful daughter, Katie Sepich  was brutally raped and murdered in Las Cruces, New On August 31, 2003, our beautiful daughter, Katie Sepich  was brutally raped and murdered in Las Cruces, New

Mexico.  Since that time our family has been astonished to learn that we are not using the latest technology Mexico.  Since that time our family has been astonished to learn that we are not using the latest technology available to solve crime and prevent lives.  DNA is the technological updated version of the fingerprint and it available to solve crime and prevent lives.  DNA is the technological updated version of the fingerprint and it is NOT being taken in New Mexico is NOT being taken in New Mexico UNTIL AFTER convictionUNTIL AFTER conviction.  By this time it is too late to stop serial .  By this time it is too late to stop serial criminals and save lives.criminals and save lives.

  WE ARE NOT USING THE LATEST TECHNOLOGY TO STOP RAPISTS AND MURDER'S AND SAVE WE ARE NOT USING THE LATEST TECHNOLOGY TO STOP RAPISTS AND MURDER'S AND SAVE

LIVES!!!LIVES!!!  ……Think of the lives this law would save.  Think of the innocent that would not even be prosecuted, let alone Think of the lives this law would save.  Think of the innocent that would not even be prosecuted, let alone

wrongfully convicted.  Think of the taxpayer dollars that would be saved in investigating and prosecuting wrongfully convicted.  Think of the taxpayer dollars that would be saved in investigating and prosecuting crime.crime.

  My husband, Dave and I testified before the interim Courts, Corrections and Justice Committee in November of My husband, Dave and I testified before the interim Courts, Corrections and Justice Committee in November of

2005.  Even though the committee seemed very receptive, 2005.  Even though the committee seemed very receptive, they voted NOT TO ENDORSE the bill.they voted NOT TO ENDORSE the bill.   We We believe not using the technology we have available to stop murderers and rapists is a crime.believe not using the technology we have available to stop murderers and rapists is a crime.

  If you live in New Mexico, please contact your legislators by phone, e mail, or letter. ..Please let them know that If you live in New Mexico, please contact your legislators by phone, e mail, or letter. ..Please let them know that

you support Katie's Law and want to see it passed in 2006. you support Katie's Law and want to see it passed in 2006.   If enough legislators hear from enough voters THEY WILL PASS KATIE'S LAW!!If enough legislators hear from enough voters THEY WILL PASS KATIE'S LAW!!         You can be part of making a difference---this law will solve crime, save lives and protect the innocent.  You can be part of making a difference---this law will solve crime, save lives and protect the innocent. 

Aren't you tired of the laws that protect criminals?  This law protects the innocent.Aren't you tired of the laws that protect criminals?  This law protects the innocent.  There are letters and an e mail attached, if you would like to fill in the blanks, or copy and paste.  Or There are letters and an e mail attached, if you would like to fill in the blanks, or copy and paste.  Or

create a heartfelt plea of your own.create a heartfelt plea of your own.  Please forward this e mail to everyone you know in New Mexico.Please forward this e mail to everyone you know in New Mexico.

What About the Other What About the Other States?States?

Louisiana – Baton Rouge Serial KillerLouisiana – Baton Rouge Serial Killer

Virginia – Long-standing DNA databaseVirginia – Long-standing DNA database

Kansas, Minnesota, Texas…???Kansas, Minnesota, Texas…???Strong Legislators who see arrestee testing as a Strong Legislators who see arrestee testing as a

“no-brainer” criminal justice matter.“no-brainer” criminal justice matter.

AZ SB 1252 BrothertonRequires 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.

Failed on a party line vote with D’s in favor and R’s against. No vote was due to lack of funding. All voiced support for policy.

2003

AZ HB 2674 Brotherton Requires DNA samples to be collected upon arrest for any offense. Died in Committee without a vote 2002

CO SB 128 GrossmanLocal law enforcement may take DNA samples from felony arrestees, but must pay for crime lab analysis.

Passed Senate. Passed House Policy Committee, died without a vote in House appropriations committee.

2003

CA Prop 69Voters

Initiative

Expands DNA database to include all felons. Includes juveniles, all sentences, and applies retroactively. After 5 years, expands to include all felony arrests

ENACTED 2004

DE HB 426 SmithExpands DNA database to include anyone arrested for a crime for which fingerprints are required.

Passed Policy Committee on unanimous vote. Died without a vote in Fiscal Committee.

2004

HI HB 590 SayRequires collection of DNA from all persons convicted or arrested for a felony, including minors adjudicated of a felony, and requires defendant to provide buccal swabs in addition to blood samples.

Hawaii was not yet collecting from all convicted felons – an all felons expansion bill was passed in lieu of arrestees.

2005

HI SB 699 BundaRequires collection of DNA from all persons convicted or arrested for a felony, including minors adjudicated of a felony, and requires defendant to provide buccal swabs in addition to blood samples.

Hawaii was not yet collecting from all convicted felons – an all felons expansion bill was passed in lieu of arrestees.

2005

IL HB 4825 Mendoza Expands offender DNA database to include felony arrests.Passed House (102-11). Died in Senate without a vote.

2004

IL HB 779 MendozaExpands offender DNA database to include all felony arrests. Requires expungement if no conviction. Becomes effective upon funding or by January 2008.

. Passed House (105-1). Died in Senate without a vote.

2005

IL SB 333 ClayborneExpands offender DNA database to include all felony arrests. Requires expungement if no conviction. Becomes effective upon funding or by January 2008.

Died in Committee without a vote. 2005

Arrestee Bills Arrestee Bills 2001 through 20052001 through 2005

LA HB 710 Downer Expands offender DNA database to include all felony convictions and arrestees. Also expands the DNA database to include samples from juveniles adjudicated of felony-grade delinquent acts.

See SB 346 2003

LA SB 346 Dardenne

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 felony-grade delinquent acts.

ENACTED 2003

LA SB 384 Schedler

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 felony-grade delinquent acts.

See SB 346 2003

MD SB 426 McFaddenExpands offender DNA database to include persons charged with a crime

of violence.Died in committee without a vote 2004

MN HB 1 SmithExpands DNA database to include all persons charged with violent felonies, plus burglary and indecent exposure. Includes juveniles.

ENACTED 2005

MN HB 1244 Paulsen Expands DNA database to include all persons arrested for felony offenses. See HB 1 (above) 2005

MN SB 1201 Foley Expands DNA database to include all persons arrested for felony offenses See HB 1 (above) 2005

NC HB 1738 BaddourExpands offender DNA database to include certain arrestees after a magistrate has determined that probably cause exists for an arrest.

Died in Committee without a vote 2003

NC SB 95 RandExpands offender DNA database to include arrests for violent felonies, sex offense felonies, and felonies committed against children, the disabled, or the elderly. (Pilot Program)

Died in Committee without a vote 2003

NJ HB 2747 JohnsonExpands offender DNA databases to include violent felony arrests and for disorderly conduct convictions. (New Jersey already collects from all convicted felons and some misdemeanors)

Died in committee without a vote. 2005

NJ SB 1513 SaccoExpands offender DNA databases to include violent felony arrests and for disorderly conduct convictions. (New Jersey already collects from all convicted felons and some misdemeanors)

Died in committee without a vote . 2005

NY AB 2131 McLaughlinRequires DNA samples from any person arrested for an offense for which

fingerprints are taken, and from any defendant in a criminal action.Died in committee without a vote . 2004

NY SB 138 MalteseRequires DNA samples from any person arrested for an offense for which

fingerprints are taken.See SB 5099 (below) 2004

NY SB 5099 VolkerRequires DNA samples from any person arrested for an offense for which

fingerprints are taken.Passed Senate. Died in House

without a vote.2003

NY AB 2131 McLaughlin Requires DNA samples from any person arrested for an offense for which

fingerprints are taken. Died in Committee without a vote 2003

NY AB 7678 McLaughlinRequires DNA samples from felony arrestees or defendants for crimes for

which fingerprints are also required.Died in Committee without a vote 2002

NY SB 1795 MalteseRequires DNA samples from felony arrestees or defendants for crimes for

which fingerprints are also required.Died in Committee without a vote 2002

NY SB 4136 Volker Expands offender DNA database to include all fingerprintable arrests. Died in Committee without a vote 2002

TX HB 1068 DriverExpands offender DNA database to include persons arrested for felony

crimes. Requires expungement if no conviction.Provision stripped from bill. 2005

TX SB 638 BarrientosExpands state DNA database to include arrests for certain sex crimes,

certain crimes against children, and burglary.ENACTED 2001

TX HB 1726 KitchenExpands state DNA database to include arrests for certain sex crimes,

certain crimes against children, and burglary.See SB 638 2001

VA HB 1639 MilesExpands DNA database to include persons arrested for soliciting

prostitutes or a drug offense. (Virginia already collects from violent felony arrestees)

Died in Committee without a vote. 2005

VA HB 892 McDougleRequires DNA samples upon arrest for violent felonies. Samples

would be stored in the state offender database.ENACTED 2002

VA SB 535 MimsRequires DNA samples upon arrest for violent felonies. Samples would be

stored in the state offender database.See HB 892 (above) 2002

WA HB 1135 MilosciaExpands DNA database to include persons arrested for felonies, gross misdemeanors or patronizing prostitutes. Includes juveniles. Requires sample destruction if no conviction.

Died in Committee without a vote. 2005

WA SB 5165 KlineExpands DNA database to include persons arrested for felonies, gross misdemeanors or patronizing prostitutes. Includes juveniles. Requires sample destruction if no conviction.

Arrestee provisions removed in favor of misdemeanor convictions. Died in fiscal committee without a vote.

2005

WA HB 2847 MilosciaExpands offender DNA database to include persons arrested on criminal charges.

Died in committee without a vote. 2004

2006 Arrestee Bills2006 Arrestee Bills

Pending arrestees legislation (6)

Enacted arrestees legislation in 2006

Currently collects from some arrestees

Introduced but failed to pass legislation in 2006

NEXT STOP…NEXT STOP…

What About Misdemeanors?What About Misdemeanors?

Removes “database of the innocent” arguments

Alleviates allegations of racial bias

No problematic expungement and/or sample destruction requirements

Many misdemeanor convictions were originally arrested on felony charges.

Some states require DNA from specific misdemeanorsSome states require DNA from specific misdemeanorsMisdemeanor pleas if originally charged with a qualifying felony offenseMisdemeanor pleas if originally charged with a qualifying felony offense

Repeat violent offenders; Multiple misdemeanor convictionsRepeat violent offenders; Multiple misdemeanor convictions

Lewd and lascivious conduct; Indecent exposure; Public indecencyLewd and lascivious conduct; Indecent exposure; Public indecency

33rdrd & 4 & 4thth degree sexual abuse; sexual battery degree sexual abuse; sexual battery

Elder abuseElder abuse

Menacing; Harassment; StalkingMenacing; Harassment; Stalking

Animal CrueltyAnimal Cruelty

Prostitution & Soliciting prostitutesProstitution & Soliciting prostitutes

PeepingPeeping

False imprisonmentFalse imprisonment

44thth degree burglary degree burglary

Any registered sex offenderAny registered sex offender

Petty larcenyPetty larceny

All “crimes” (New Jersey)All “crimes” (New Jersey)

All Class A Misdemeanors (Utah)All Class A Misdemeanors (Utah)

Misdemeanor ConvictionsMisdemeanor Convictions

2006 Missing Persons Bills2006 Missing Persons Bills

Pending legislation

Enacted legislation in 2006Introduced but failed to pass legislation in 2006

FUNDINGFUNDING

More than $1 billion over five years (2005 through 2009)More than $1 billion over five years (2005 through 2009)

Title II – The Debbie Smith Act -- $151 million per yearTitle II – The Debbie Smith Act -- $151 million per year Casework - No-Suspect and Suspect (50% of each year’s appropriation) Offender DNA Analysis and Collection Enhanced DNA capacity Accreditation (1% of each year’s appropriation) Other Forensic Sciences (if lab can demonstrate no DNA backlog)

Title III – DNA Sexual Assault Justice Act – $102.1 million per yearTitle III – DNA Sexual Assault Justice Act – $102.1 million per year $30 million for Sexual Assault Forensic Exam Program $12.5 million for training for criminal justice professionals $15 million for research and development. $42.1 million for FBI DNA programs (including regional mtDNA labs) $2 Million for Missing Persons DNA Programs $500,000 National Forensic Science Commission

Title IV – Innocence Protection Act – $80 million per yearTitle IV – Innocence Protection Act – $80 million per year $5 million for Kirk Bloodsworth Post-Conviction DNA Testing Grant $75 million to improve quality of Representation in Capital Cases

PRESIDENT’S DNA INITIATIVE: Justice For All Act of 2004 (HR 5107)

2006 Congressional 2006 Congressional BudgetBudget

• DNA Initiative DNA Initiative $108.5 M$108.5 MEliminating casework and offender backlogs, Eliminating casework and offender backlogs, strengthening crime lab capacity, training of the strengthening crime lab capacity, training of the criminal justice community and identifying missing criminal justice community and identifying missing persons. persons.

• Coverdell Forensics Science Improvement $18.5 MCoverdell Forensics Science Improvement $18.5 M

• Edward Byrne Discretionary Grants Edward Byrne Discretionary Grants $7.15 M$7.15 MSome earmarks for DNA and forensic science programsSome earmarks for DNA and forensic science programs

• Crime Identification Technology Act Crime Identification Technology Act $16.075 M$16.075 MSome earmarks for DNA and forensic science programsSome earmarks for DNA and forensic science programs

2007 Congressional Budget2007 Congressional BudgetDNA Initiative Funding DNA Initiative Funding

President’s ProposalPresident’s Proposal $175.568 Million$175.568 MillionOf which, $151 must be for DNA backlog and capacity buildingOf which, $151 must be for DNA backlog and capacity building

House ProposalHouse Proposal $175.568 Million$175.568 Million to include backlog and capacity grants; missing persons; post conviction; and CSI training, to include backlog and capacity grants; missing persons; post conviction; and CSI training, education and technical assistanceeducation and technical assistance

$0$0 to Paul Coverdell NFSIA grants to Paul Coverdell NFSIA grants

Senate ProposalSenate Proposal ???? (significantly cut in last 3 years) (significantly cut in last 3 years)

Final ProposalFinal Proposal ??????

STATE FUNDINGSTATE FUNDING

The President’s DNA Initiative expires in 2009 The President’s DNA Initiative expires in 2009

Are States going to spend more on DNA?Are States going to spend more on DNA?

““Public Safety Fee”Public Safety Fee”California Model -- $1 on every $10 in finesCalifornia Model -- $1 on every $10 in fines

Outsourcing of offender samples over 6 months oldOutsourcing of offender samples over 6 months old70% of funds collected go to state lab for first 2 years 70% of funds collected go to state lab for first 2 years 50% for third year50% for third year25% thereafter25% thereafter

CASEWORK TURNAROUND…CASEWORK TURNAROUND…

CASEWORK TURNAROUND… CASEWORK TURNAROUND… THE MISSING PIECE?THE MISSING PIECE?

Washington State 30-Day Stranger Rape Kit Project Coming soon to a city or state near you?

Guarantees a 30 day turnaround time for all no-suspect stranger rape kits (from date of receipt by lab)

• Analyzed AND uploaded

Liaison from Washington Association of Sheriffs and Police Chiefs to work daily with law enforcement throughout state for timely submission of rape kits.

The implications for future state and municipal law makers

CASEWORK TURNAROUND… CASEWORK TURNAROUND… THE MISSING PIECE?THE MISSING PIECE?

MINNESOTA

FORENSIC LABORATORY ADVISORY BOARD

DUTIES OF THE BOARD:

• Recommend “guidelines” for forensic analysis processing times

• Consider “goals and priorities identified in the presidential DNA initiative” when adopting and recommending the guidelines.

• Consider feasibility of lab’s ability to meet guidelines.

• Recommend “reasonable” deadlines for processing evidence.

• Report to the Legislature each year on actual turn-around times and recommendations to improve these times.

Other LegislationOther Legislation

Database match not invalidated if sample on the database by mistake (Database match not invalidated if sample on the database by mistake (TNTN))A person may chose whether to have a blood draw or buccal swab (A person may chose whether to have a blood draw or buccal swab (NE)NE)

Reporting requirements for DNA evidence reported to state lab but not in Reporting requirements for DNA evidence reported to state lab but not in labs custody (labs custody (ILIL))Establish processing times for forensic evidence (Establish processing times for forensic evidence (MNMN))

Forensic Science Commissions (CT, Forensic Science Commissions (CT, MNMN, NH, VT), NH, VT)DNA evidence must be tested by an accredited lab (IL, VA)

Training standards for DNA evidence storage personnel (NY)Scholarships for forensic scientists who will work in the state (IL)

DNA collected from every abortion performed on minor (CA, DNA collected from every abortion performed on minor (CA, TNTN, VA), VA)DNA collected from every autopsy (AZ)Funding for expedited testing of child murder cases (IL)

Chemical castration for sex criminals identified through DNA (OK)

Questions ?Questions ?

tims@smithallinglane.com

www.dnaresource.com

253-627-1091