Fourth Annual DNA Grantees' Workshop
Tuesday, June 24, 2003
AFTERNOON SESSION
Annual Legislative Update and DNA Assessment Project Progress Report
Tim Schellberg
Biography
MR. SCHELLBERG: Good afternoon. My name is Tim Schellberg of Smith Alling Lane. Lisa Hurst, also with Smith Alling Lane, is with me today, and she is going to conclude the portion of our talk. Schellberg: Slide 1
As most of you know, Smith Alling Lane is a governmental affairs and law firm. Over the last 3-plus years we've been sponsored by Applied Biosystems to track and monitor the growth of forensic DNA issues throughout the United States. We make this information available to various crime lab and law enforcement officials, prosecutors, legislative staff, members of Congress, and the like. Schellberg: Slide 2
Before I get into the main issues, our Web site, where we post all the information that we track regarding DNA, has recently received a new address: http://www.dnaresource.com. Each week, those of you who are registered at the site get an e-mail notification telling you about reports posted to the site and various other information. Schellberg: Slide 3
Today, we're going to cover five issues. First, we're going to, as we usually do at this conference, cover the convicted offender database expansion legislation in the various State legislatures. Schellberg: Slide 4
This is the fourth year that we've talked about this. Why is it so important? Why do we track all this information? Why is it important that the legislatures build the laws that allow them to have the biggest databases possible? Schellberg: Slide 5
Obviously, it's all about the hit rate. When we first started looking at this, most States collected sex offender and homicide samples and were moving toward sample collection from violent offenders, but most had not even considered moving toward nonviolent offenders. DNA samples collected from a crime scene when a suspect was not known were expected to have a hit rate—that is, match a reference in a database—3 to 7 percent of the time. However, mature databases, like that in the United Kingdom, can experience hit rates up to 50-plus percent. Even criminal history suggests that eventually the hit rate in the United Kingdom will be upwards of 70 percent or so.
What would it be like if you have a 40- to 70-percent hit rate? Obviously, you're going to catch a whole lot more offenders with these databases in place. Secondly, it gives policymakers—the legislators who are controlling the budgets, whether it be members of Congress, State legislators, or your city and county councilpersons—the data they need to realize that they should be funding programs with this type of hit rate. So I think it's very important that we keep monitoring and seeing how these databases expand. Schellberg: Slide 6
Where have we been in the past 6 years? Of course, the all-felons march really didn't get started until about 2001, where we went from 7 to 14 states. Last year, the number of States leaped to 23. This year, we have seven States, with six pending. New Jersey is considered passed because it has passed both chambers and is currently going through some procedural hoops. Schellberg: Slide 7
But specifically where are we in 2003? There were 23 States that had passed the law prior to the beginning of this year. The States that passed the all-felons law this year are Alaska, Arkansas, Connecticut, Louisiana, Mississippi, and New Jersey. Some States have laws pending. We hear that North Carolina is in pretty good shape; that is, it has a pretty good chance to pass this year. However, I think that it's doubtful that it will pass this year in Pennsylvania, but it may because they're still in session. Also, I think people are giving it fairly decent odds in New York because of the executives behind the bill and the victim's groups that are pushing for it. New Hampshire is probably doubtful for this year, and Massachusetts is probably more likely than not at the moment, where it has passed the Senate and is going to the House with a high amount of advocates pushing the bill. Rhode Island is about 50–50. In the end, we'll probably have anywhere from 8 to 10 States passing all-felons bills this year, which will bring us up to approximately 31 to 33 States. Schellberg: Slide 8
In addition to those bills that are passed or pending, there are a number of States where all-felons bills have failed this year: California, Hawaii, Indiana, Vermont, and West Virginia. Most of those bills I think failed because of fiscal issues. They just weren't sure if the Federal money would be there or weren't sure of their own State budget situation. Obviously, most States are in peril at the moment. But in a few States, the issue boils down to policy, where the lawmakers aren't yet comfortable with the issue. Schellberg: Slides 9–11
In addition to the all-felons States, Idaho was one State that tried to take a baby step from all violent offenses to burglary, but that didn't pass. The reason I wanted to mention this is because when we first started tracking all of this 3 years ago, I'd say that about 80 to 85 percent of all the expansion bills introduced were in the form of baby steps. I think that legislatures and crime labs in most States now want to skip these baby steps and go to all felons, so that's where we're all headed.
Some States have passed sunset removal provisions. Maryland and Minnesota had passed all felons last year, but they had a sunset provision that they needed to remove for this year, and they did that, as did North Dakota on a less-than-all-felons bill.
I'm not going to spend much time on this, but here is a list of all the bills—the sponsors and what happened to them—regarding expansion legislation. Schellberg: Slides 12–14
Even though we have now 30 States collecting for all felons, a number of all-felons States still have a lot of work to do to perfect their statutes. Many of these issues appeared in the President's Initiative on DNA as recommendations for where these States should go. Schellberg: Slide 15
For example, there are eight States that are not retroactive in various provisions of the law. (Let me mention right now that we read these statutes as a plain read and may be unaware of some application issues behind the statutes, so we apologize if we characterize you inappropriately here.) There are also four States that do not collect for juveniles: Delaware, Iowa, Maryland, and Mississippi. Maine was on that list until earlier last month, when they added juveniles back into their statute. Three States don't collect from no-jailed offenders, that is, from all incarcerated individuals in the State penitentiary and not from those serving time in a county or city jail. Colorado, Maine, and Texas don't have community corrections.
This year, we've noticed some emerging trends in the legislative cycle. One, more States are thinking about going to misdemeanor convictions. If you look at what we have right now, a lot of States collect from the violent misdemeanors or sex offender-related misdemeanors, and a few States actually took on that issue this session, with a few of them passing: Connecticut, Louisiana, New Jersey, Oregon, and Vermont. Louisiana and New Jersey had bills passed that added a significant amount of misdemeanors to the list. I'll talk about Louisiana in a minute. Schellberg: Slides 16 and 17
When we started looking at this issue 3 years ago, DNA groupies were the ones primarily pushing the issue. But finally, after 3 years, the issue has made the mainstream advocacy level, meaning that when this issue was presented at victims associations 3 years ago, most of them didn't really have the issue on their radar screen, but now it's probably in every State. Now those victims associations are actively trying to expand the databases. Schellberg: Slide 18
The same goes for the National Attorneys General Association. The attorney generals, as well as the governors, really didn't have it on their radar screens a few years ago, but now they're starting to promote the bills in various States. What we've learned in the past is that when a governor gets behind an all-felons bill or beyond, the bill has a very high likelihood of passing. They're all starting to look at this issue very strongly.
Even though law enforcement officials have supported the issue during the past 3 or 4 years, they really haven't had an organized push. But I think that all changed during the IACP (International Association of Chiefs of Police) summit that took place a couple of months ago (spring 2003), where all-felons legislation in all States was a part of their policy recommendations.
Now let's move on to issue number two: the beginnings of arrestee testing. Schellberg: Slide 19
Here are the pioneers, the ones who have introduced arrestee-testing legislation in the United States so far. Nine States have introduced such bills during the past 3 years. Three of them have actually passed with varying degrees of impact. Schellberg: Slides 20 and 21
Virginia's legislation, which passed last year, creates arrestee testing for all violent offenses. However, they have to expunge the record if the offender is not convicted and are required to destroy all samples. Texas has a very similar law that passed 2 years ago. However, it's not for arrestees; it's mostly for indicted individuals.
But Louisiana changed everything this year. Just today in fact, the governor signed Senate Bill 346, which clearly raises the bar for arrestee testing. It's modeled basically after the United Kingdom's law. It basically applies to all fingerprintable arrests and many misdemeanors. There is no purging or sample destruction requirement, so it's pretty much a United Kingdom-based statute. Schellberg: Slide 22
I think it's important to realize that the situation in Louisiana is different. By that, I mean it probably would have been very difficult to pass this strong of a law without the Baton Rouge serial killer on the minds of the public and the legislature. So I think it's important to recognize that external events can clearly drive stronger statutes in different States in the future. Schellberg: Slide 23
At least in the next couple of years, I don't think the majority of legislatures will be able to pass as strong of a law like Louisiana just did. If you're looking at that issue, you may have to consider, like Virginia and Texas did, some of the mitigating clauses that can get into a statute to make it acceptable, like limiting it to violent and sex crimes. Requiring expungement if a suspect is not convicted is a clause that seems to get acceptable readings from legislatures.
Another issue that's been coming up is what if you make the DNA sample like a fingerprint. Meaning, what if you were to profile the DNA sample and all you have left is the junk DNA, the 13 loci, and then throw the rest of the sample away? Legislators, then, feel comfortable that you won't use the sample in the future for something that it wasn't intended for. Perhaps that's a way to get around the opposition of arrestee testing, because you take fingerprints upon arrest and you don't have to expunge those. If you can make the DNA sample similar to a fingerprint perhaps, then you may be able to get around the opposition by realizing other issues. For example, destroying the sample brings up policy issues, but it may be the compromise that gets the bill passed.
Real quickly, I think there are several things to consider in the future when developing arrestee DNA legislation: Schellberg: Slide 24
- Limiting testing to violent arrestees will obviously reduce the hit rate compared to what Louisiana is going to experience in the future.
- Expungement requirements can mean multiple collections and analysis from the same offender. I hear that Louisiana has actually got a mechanism, when handling rape cases, to determine who has a sample on file; maybe that's a good way to handle it.
- Expungement requirements can create a significant administrative burden. This is the story we have heard from Virginia, in that they have to monitor whether or not these folks are convicted to make sure they get the samples expunged.
- When you move to all-arrestee testing, you put a lot of the collection burden on the booking stations, whether it be the city police or the sheriff's offices, so they need to be considered.
- Federal funding is limited to convicted offenders, so you have to come up with the money out of your State budget or local budget to deal with arrestees. My understanding is that Louisiana did have a budget passed today that will pay for the arrestee testing and collection costs.
- At the moment, arrestees can't be uploaded to the national index, so Congress will have to look at that. We'll talk about that in a moment.
The third issue is Federal legislation. Schellberg: Slide 25
The President's DNA initiative was announced in March 2003. Director Sarah Hart covered this yesterday, so I will be real quick on what the initiative does and then spend most of the time talking about what Congress is doing at the moment. Schellberg: Slide 26
Basically, it funds $1 billion over 5 years for DNA-related activities. Approximately $232 million are slated for fiscal year '04, and that's how it will be each of the next 5 years. As you heard yesterday for 2004, $92.6 million goes to the backlogs for casework and convicted offender, crime labs get about $90.4 million for infrastructure and building up capacity, research and development gets $24.8 million, criminal justice training receives $17.5 million, postconviction issues get $5 million, and missing persons issues receive $2 million. Schellberg: Slides 27 and 28
The initiative also recommends policy issues. The Bush administration recommends that each State go to all-felons databases, and they want Congress to change the statute for the Federal database, so that it too goes to all felons. They also want the States to move toward retroactive statutes and allow inclusion of other DNA samples collected under applicable legal authority, meaning if the States decide to collect from arrestees or juveniles, that the Federal law shouldn't stand in the way of having the States upload those databases to the national indexes. Schellberg: Slide 29
So where are we at in Congress? Basically, the two individuals in charge are Utah Senator Orrin Hatch, who is Chair of the Senate Judiciary Committee, and Representative James Sensenbrenner from Wisconsin, who is Chair of the House Judiciary Committee. These two individuals are currently drafting the President's DNA Initiative into their own legislation. They will be the ones to control the issues. One of their two bills will be the one that passes, which basically means all the bills introduced to date will either be merged into one of these bills or not be heard. Schellberg: Slide 30
So that's currently what's going on. There has not been an official draft released yet, but it is likely that it will include most of the President's DNA Initiative, and it is likely that the full authorization of $1 billion will at least pass Congress. Schellberg: Slide 31
Whether or not it's actually appropriated during the 2004 budget or through 2009 is another story. I think estimates are that at least 80 to 90 or perhaps even 100 percent will get appropriated for 2004. But then you have to keep coming back 4 years in a row to try and keep getting that full amount funded. So its length is unknown, but at the moment, at least 2004 looks pretty good.
The provision for legally collected samples to be uploaded to the national indexes is going to be somewhat debated. Right now various factions of Congress are raising an eyebrow at this provision, so we'll see how it comes out, but at the moment it is an issue under debate.
Other provisions that weren't clearly spelled out in the President's DNA Initiative, for which are currently in the bill, include the local option to apply for casework funding—meaning that if a State decides not to apply, a local agency may apply directly for the money—and State reimbursement for collection costs of convicted offender programs.
We're being told that hearings in the House will probably take place on either July 10 or 17, and we suspect that the Senate's hearings will be around that time too. I think they're optimistic about getting the bills done and to the President by the August recess, but they may have to come back and work on that in September.
Real quickly, the fourth issue concerns the future of DNA funding. Schellberg: Slide 32
I've mentioned this in a few talks before, but I think it's important for planning purposes to get into the minds of the lawmakers to know where they are headed with funding. If you look at Federal criminal justice programs, Congress likes to come up with a lot of money to push States to go after new and good ideas. They're clearly doing this with the President's DNA Initiative.
Federal funding will likely peak in 2008 or 2009, and then it's likely, if you look at the history of other programs, that Congress will pull back. There will probably be some funding continuing through the 10 years after that, but probably not in the billion dollar range that we'll be experiencing during the next 5 years. Schellberg: Slide 33
Because Congress believes that crime is a local issue in general and that it should be funded by the State and local governments, they're going to rely on States. So let's take a look at what the States are going to do. It's likely, if you look at the history of other programs, that the States will eventually fund, without complaint, the all-felons or perhaps even arrestee databases at the State level. It's also likely that they will continue funding some casework, particularly to supplement some of the smaller jurisdictions or to get various other money for serious crimes.
But if you wanted to move toward a program like that in the United Kingdom, which is clearly where we're headed, where you're doing casework on all conceivable offenses—car thefts, petty burglary, or whatever—it's likely that costs will rest with the local government. That's what the United Kingdom evolved into, and the reason they were able to do that is because they have such a successful hit rate. It's worth their time and money to spend $1,000 on a casework sample when they're getting a hit 50 percent of the time. That's probably where we're headed in the future for these lower crimes.
So with that, I will turn it over to Lisa [Hurst] for an update on the NIJ assessment and then we'll hopefully have a few minutes for questions. Thank you. Schellberg: Slide 34
MS. HURST: Smith Alling Lane was awarded a grant from the National Institute of Justice at some point last year. We're working in coordination and partnership with Washington State University on this project. Smith Alling Lane is essentially collecting a lot of the data, pulling the data together, and making sure the blanks are filled out appropriately. Washington State University is providing the academic integrity to some of the number-crunching that needs to go on at this point. Schellberg: Slide 35
We needed to provide a general assessment of how DNA was being used by local law enforcement, and we also needed to get some backlog numbers. There has been a lot of speculation on the extent of the potential backlog. Instead of it just being an educated guess, we're trying to come up with something with a little more integrity when arriving at such numbers; that is, we're getting a base from which to extrapolate.
It's important to remember that we're not doing a national census on the backlog situation. I think that there's probably neither the time nor the money to actually get an accurate count from every law enforcement agency in the Nation.
The other project goal of this is to help educate Congress, State and local legislatures, city and county councils, and whoever else on the importance of expanded DNA databases and strong DNA programs. We need to give them a little bit more of an understanding as to why they need to invest in DNA.
Part of that education could be some final report topics about backlogs: How big are they and, possibly more importantly, why do we have them. These look like small questions, but they involve big multipart answers. We're looking at the backlogs from the angle of law enforcement agencies: What do they say are the reasons for holding onto them and why aren't they sending them in? If they tell us that they have samples from 200 cases that they have not sent in to their crime labs, then why, why are they holding onto them? The other part of that, of course, is the crime labs: Why do they have a backlog? Part of that answer lies in capacity, personnel, training, and resource issues. Schellberg: Slide 36
We're also looking at related growth problems, such as storage. Again, education and training of law enforcement has a lot to do with it. Storage breeds another need, a need for information management systems that can keep better track of some of this information.
We will also look at the effectiveness of DNA programs. Why should States, local governments, and Congress be investing in DNA programs? What kind of crimes is CODIS really solving? We've got some great information from Virginia and we've published some other information coming out of New York, but nationally, we've got an untold story at this point.
We assume that there are some efficiencies in the system when you don't have to spend as many resources investigating a crime. Some efficiencies may also be seen in prosecuting cases. Well, it all needs to be understood with the knowledge of what the actual cost is. If we know the actual cost, then we can argue for more funding.
As Tim [Schellberg] said earlier, we're also going to have to do a comparative analysis with the United Kingdom to see what's going on with their figures and how they got to the point where they are, how they are structured, what their funding looks like, and what their hit rates look like.
The assessment has three parts. A questionnaire was sent to State and local labs, who had a very similar but slightly different assessment, that excluded questions about offender samples. In addition, an individualized local law enforcement assessment form was sent to all agencies with 100 or more officers—that equates to approximately 1,000 agencies in the United States—and to a statistically valid sampling of the remaining agencies and Indian tribes. Schellberg: Slide 37
I am sorry that we don't have the timeline numbers for you quite yet. They are being crunched right now at Washington State University. The numbers are coming to NIJ very shortly and a final report will be forwarded to NIJ in July. After that point, the data belongs to NIJ and when and if and how they release it will be up to the Department of Justice. We certainly will try to get the information out to all of you who helped respond on these forms, but again NIJ will be the decisionmaker on when this information will be released publicly.
One of the reasons we believe that we were chosen for this project was because of our frequent communication with the crime labs. We felt that we would be able to get close to a 100-percent response rate on this. Right now we're very close that, so thank you to everyone who has participated. There are a few labs out there where it's either in the mail or missing in the mail, or we've got some little technical glitches that have happened. I have every expectation that we will be able to reach that 100 percent within the next week or so. Schellberg: Slide 38
That's the end. We are happy to answer any questions. Schellberg: Slide 39
MR. SCHELLBERG: Questions from anybody?
MR. VALLARO: Hi. Joe Vallaro. Just a quick question. Does your group try to track the disposition of hits after they occur? Meaning, what number of them may result in an arrest, indictment, conviction, or something like that? Is that kind of thing possible to track on a national scale?
MR. SCHELLBERG: We don't track that. However, your question is one that's probably the most frequently asked. I wish we had that information. There's a number of legislators that want that data. A lot of people want it. NIJ is currently working with us and we may assess how to go about trying to set up that data source. Although it's being considered as we speak, no data exists at the moment.
MR. VALLARO: We track that, actually, in Boston, but it is very difficult to try to collect that information.
MR. SCHELLBERG: Right. Any more questions? Well, thank you again.