MR. ASPLEN: If we could at this stage shift gears a bit -- first of all, let me say this. I appreciate all the commissioners' assistance and attention with the diversions that have been going on today as a result of the discussion that we're having.

Again, we apologize for having to get up and leave occasionally and for the staff interruptions. We appreciate your understanding of that.

If we could switch gears a bit and go to the approval of two items. What you found or what you received in your packets prior to the Commission meeting are two matters for approval.

One is the CODIS recommendation, the CODIS prioritization and the non-suspect case recommendation.

As I mentioned at the beginning of this meeting, at the last meeting we thought that perhaps we could put those recommendations in writing that were, in fact, approved the last time, put them in writing, send them out to you, have you sign off, and send them back. However, we thought better of that proposition.

What you have in front of you is the final version that has been, I would say, laboriously transferred back and forth between Chief Justice Abrahamson and myself and we hope is in appropriate format for, again, final adoption.

If that is the case, if we can reach a conclusion on that, we can get it to the Attorney General this week. It will go under cover letter by NIJ's director, Jeremy Travis.

Again, I hope that it accurately reflects the conversation that was had at the last meeting and was approved at the last meeting, and if that is the case, we will simply ask for an approval that that document that you have in front of you be forwarded to the Attorney General.

I, however, will not do that and will ask Dr. Crow to do that officially.

DR. CROW: Are we asking about the recommendation?

MR. ASPLEN: Yes.

DR. CROW: Let me call for a show of hands on this motion -- or first discussion, of course.

[No response.]

MR. GAINER: Well, I guess the only discussion I might offer is if somehow we would convey the thought that we don't want this to come out of pocket.

Several times before when we've made proposals to the justice department about granting, then there's a reduction in the amount of current grants.

We wouldn't want supplanting, necessarily, to happen in this, unless there was a pretty conscientious discussion amongst a lot of people who rely on some of those continuing grants to do some of the law enforcement things we do now.

MR. ASPLEN: If I could address that, I will tell you that that concern, I think, is already a matter for the Department of Justice in that the President's budget has already requested $15 million for this particular project based on our previous discussions, although it hasn't taken the form of recommendation.

We have let it be known that $15 million is not the ultimate number that we were shooting towards and is not a finite proposition at this stage. However, that $15 million was specifically set aside for backlog reduction; it was not taken from anything else.

DR. REILLY: But I am concerned -- the one thing about this recommendation I am concerned about is that, although it's emphatically toned, it does not give a sense to the reader of the magnitude of the amount of resources that need to be devoted to it, and regardless of what might have been appropriated or authorized, I think it is wise to make the reader know the magnitude of the problem and give that person some sense for it, and I realize how you might not want to start rewriting this recommendation, but if, in a cover letter -- therefore, I'm not suggesting a change to the language -- we could make it clear that we're aware of the magnitude of this task -- and I, for one, think that 15 or 20 million is just the beginning.

MS. BASHINSKI: If you increase the number of samples collected, as we've been discussing, it will go up proportionally.

DR. REILLY: I was struck by Barry's comments, a million owed, etcetera, etcetera. Those numbers quickly exceed -- 20 million becomes a distant memory.

MR. ASPLEN: All it takes is for the State of Texas to include one more crime.

DR. CROW: Is this a fairly general consensus, that a cover letter would take care of your issue?

MR. KENNARD: I think the motion should reflect that.

DR. CROW: All right. I'll accept that as an amendment to the motion. Is there a second to the amendment? Those in favor -- well, first discussion.

[No response.]

DR. CROW: I hear none. Those in favor, say aye.

[Chorus of ayes.]

DR. CROW: All right. It's amended. And unless there's further discussion, we'll vote on the amended motion.

MR. GAINER: There were two concerns I think that were raised: supplanting, for lack of a better term, and Phil's issue about the scope of the problem.

DR. REILLY: So, my motion would be to authorize Chris to draft the cover letter that expresses these two additional concerns, which would be the transmittal letter with this recommendation that would proceed unchanged.

DR. CROW: You would accept that as a wording of your amendment? Why don't you accept that as a friendly amendment? I think we're ready for a vote, then.

MR. ASPLEN: I just need to make sure that I have a clear understanding so I can accomplish both goals here.

Something in the cover letter -- again, this would be under signature by Jeremy Travis -- which reflects the changing and, in fact, increasing scope of the issue.

DR. REILLY: Yes, that it forces us to be somewhat uncertain about budget and unwilling to place a ceiling on it.

MR. KENNARD: And the secondary issue dealing with supplanting the funds already in the justice department.

MR. ASPLEN: That these not be funds diverted from other purposes, other DNA or other law enforcement purposes.

MR. SMITH: I'm not so comfortable with that. It seems to me we're not very well positioned to be making comparative cost assessments for the Attorney General, and I'm not too sure why we're recommending that.

MS. BASHINSKI: There's already some history for -- that's the first place people look for funding.

MR. SCHECK: If we limit it to just labs -- in other words, I think other people at this table have the authority to say that you -- the concern is that, if you're going to take the money away from processing, let's say, the cases that they're already asking you to process, then any number we give with respect to the backlog is unrealistic, right?

MR. GAINER: I guess mine was more general.

It is only an expression of our desire rather than, you know, being prescriptive at all to say that clearly there are a lot of funding priorities within the justice department, and right now, into the year 2000 and beyond, many of those funds are already earmarked or encumbered, and again, our collective experience is, if they're going to take 15 or 20 million dollars, the first thing they'll do is whack it from someplace else that sends everybody scurrying.

MR. SMITH: We wouldn't withdraw our recommendation if we knew that it was a zero sum gain, would we?

MR. GAINER: No.

MR. SMITH: So, it seems to me that we're not really saying that we think this should be funded only if it can be funded.

DR. REILLY: But that wasn't the proposal that was on the table.

MR. GAINER: That wasn't an only.

MR. KENNARD: Because many of the issues the Commissioner brought up deal with not only the crime prevention issue but the solvability of crime, going into issues such as the COPS program.

They say, well, if this is all-encompassing with crime prevention and crime reduction, that's what some of our grants that they're presently getting are already doing.

MR. SANDERS: If Justice makes a decision that they're going to take away from burn funding and that kind of stuff, then the whole law enforcement community is going to rise up against it, is what Terry is saying. We're suggesting that that be excluded, that it be new funding, because you'll definitely have an uprising of law enforcement if you suggest that you're going to take it from already existing programs.

MR. ASPLEN: We have seen it actually in the DNA realm, taking it from research dollars, and in fact, I will tell you that that was suggested to NIJ, that money be removed from our five-year DNA program and put into the database backlog, and NIJ, I think appropriately so, refused to do that, because they recognized that, if you take from one and give to the other, you're really defeating the purpose, that the whole system has to work together.

So, I think that we can accomplish those two goals in that cover letter and not undermine the value of the recommendation itself.

DR. CROW: All right. Are we willing to trust the writing of the cover letter? At last, may I call for a vote? Those in favor, hold their hands up. Those opposed?

MR. ASPLEN: For the record, that was a unanimous approval.

The second issue for approval is the legal issues chapter.

Now, this is a --

DR. CROW: This is the legal issues chapter of the post-conviction group.

MR. ASPLEN: That is correct. Thank you.

This may also be a matter of trust, to some extent, and let me explain why.

When the Commission approved the recommendations at the last meeting, they approved them subject to the changes that were made that were basically editorial in nature and to the future approval of the legal issues chapter, which we did not have at the time and we have now.

My proposal, from an administrative standpoint, would be the approval of the recommendations as they stand at this time, with the inclusion of this legal issues chapter, and that that be the final approval, for this reason.

There are still some things that need to be done to the actual publication, such as an appendix of resources, an appendix of glossary of terms, illustrations, blocking some things out in shadow boxes and such.

That takes an extensive editorial process through NIJ. It's got to go through our editors. It's got to to through the lawyers.

Believe it or not, it actually has to go to the Attorney General and then come back before it can ultimately go to the Attorney General. True story.

Now, my concern is this, that if this was not the final approval in the document, we would be put in a position of having it ultimately finalized and then bringing it back to the Commission, quite frankly, if there were changes to be made, that we wouldn't be able to make and that that would be a rather valueless process.

So, I guess the question is does the Commission feel that they have provided enough input, the appropriate input, and are they satisfied with the document that those changes that need to be made are superficial in nature and would approve the staff and NIJ proceeding with at this point?

MR. THOMA: Well, I have reviewed it. I reviewed it last night, and I apologize for reviewing it late.

With regard to the statute of limitations issue, which I know we are going to take up and Barry and I are going do with regard to the legal issues working group, it's pretty general, and there's nothing specific in this with regard to that, and I know, a lot of these, we end up taking in faith, a good prosecutor that knows DNA, so to speak, would waive any time barriers, and we're left with that, basically.

I don't think get anywhere beyond that which we already have, and that is a concern.

MR. ASPLEN: I would just offer to you that the thinking on it is that the statute of limitations is one of the more jurisdictionally specific issues, which is why it is one of the more generally addressed issues there.

I also think that, based on our discussion previously regarding the continued direction of the post-conviction group, and in anticipation of the symposium, we could include that and come out with an independent firmer recommendation on statute of limitation issues, rather than -- the only intent of the legal issues chapter was for those issues relevant to this particular process and as a guideline for this process.

MR. THOMA: I understand that, and the reservation is a slightly one, Chris, and with that caveat, we are going to follow up on legal issues, and the symposium, which I've already stated is a great idea -- that's all. It's a slight reservation, and it's a recommendation from me for adoption with that reservation.

MR. SCHECK: Chris, in regard to that, you were wise, I think, in stopping the demands that some of us had in the working group to put a statutory recommendation into this report, as opposed to just recommendations, although I think it should be clear to everybody on the Commission that, when you say a category one or category two case, you should get free DNA testing without a statute of limitations and the prosecutors and the judges and everybody should consent to it, we're making a pretty clear statement.

I mean if you're willing to say that people should exercise their discretion that way, then, you know, it seems evident what statutes there might be, but I just want to throw this into the mix for people's thinking, that there is one way to do this in one fell swoop, and that is the following, that you could amend -- you could pass a bill in Congress, and the bill in Congress would say the following, that if an inmate had been convicted of a certain designed crime -- we'll make them, you know, some serious felony -- and you were not -- and you would fall into the category -- and I'm using shorthand language that we all understand, as a category one or two case, and you had asked your state, in a post-conviction motion or at some point, to give you DNA testing and you really have a category one case and they did not give it to you, then the Federal District Court would have the authority, if it would be really a category one or two case, to issue a Federal writ and order the testing be performed and, if the person couldn't pay for it, pay for it and then could consider whether or not, if the results turn out to be favorable, the continued incarceration of the individual violated the United States Constitution.

Now, that simple one amendment would certainly -- would be far more practical than going to every state in the country and asking them to pass a statute one by one, and it's something to consider.

MR. ASPLEN: It sounds like your intent is not to incorporate that into this.

MR. SCHECK: I'm just pointing out that really is one way of doing it, and you know, I know how these things work. It takes time.

DR. CROW: I hear a motion, and I heard a second.

So, the motion is to accept this, with the understanding that there will be editorial changes that don't change the message and that we trust the editors to do that.

Is that a clear enough statement of the motion? I hear no further discussion. Those in favor, raise their hands. And those opposed? It's unanimous, for the record.

MR. ASPLEN: Thank you, folks. I appreciate that.

It seems to me that, in terms of the rest of the afternoon, we have a couple of goals to accomplish.

One is we need to, I think, revisit a few of the issues that we spoke about yesterday, for a couple of reasons.

Number one, I think that we could use some more guidance on some of the issues.

Number two, some issues came up specifically that we were hoping to get Dr. Reilly's input on that perhaps we could revisit.

However, what I'd also like to do -- and perhaps we can do this first -- is address the issue that we talked about this morning, and what I would ask of you is your guidance in terms of who you'd like to hear from from here about this issue of taking DNA from arrestees and the related issues.

Who should we bring into this process and how should we proceed at this point in an effort to make our recommendations to the Attorney General?

DR. CROW: Is the Attorney General in a hurry for these recommendations?

MR. ASPLEN: The Attorney General has asked that these recommendations be submitted to her by August 1st.

MR. SMITH: These recommendations -- what falls under the word "these"?

MR. ASPLEN: Quite frankly, what we choose to send to her, and I don't want to be smug about that, but it really is up to the Commission, I think, to define what the issues are and to define what she needs to be addressing and what she needs to be --

MR. SMITH: But August is not the end of our entire process.

MR. ASPLEN: Correct. Absolutely not. You're not getting away that fast.

MR. SMITH: It's just a coincidence.

MR. ASPLEN: Right.

DR. REILLY: I'm not sure who we should ask to speak further to us about this problem, but I am sure we should ask more people to speak to us about this problem.

I'm looking at it now from the point of view of how others will receive, if you will, the question of due diligence on our part, and I'm not satisfied that we've done that.

For the moment, one could perceive, although this is a little unfair, the testimony that we've received as particular to the major city in the United States. Most of the players that have testified work out of there, etcetera, etcetera, although they may have national interests, and I would like to get a greater sense for thinking around the rest of the country about this.

DR. CROW: How useful is it to get opinions in writing?

DR. REILLY: There's the internet -- we could send out a survey instrument, a brief one. I want to make sure that we have compiled a bit more of a record upon which to build our deliberations.

MR. ASPLEN: So that you know, as some of the stuff that I've been doing out here, when we're talking to other folks and we're talking to the press, the position of the staff in terms of the Commission is that the goal of the Commission is to receive as much input from all of the relevant community as possible, so that when we make the recommendations, we have followed a process of inclusion of as much as we can, and that's the whole goal, and today was only and always intended as simply the first meeting in a number of meetings that will be part of that process.

DR. REILLY: For example, we have not heard, really, from a member of the minority community.

MR. ASPLEN: Right.

MR. THOMA: And I'm definitely treating this with an open mind, but I worry about this, and I agree with Phil, we need to hear from more minority communities and more other people on this issue, but I'm worried about the recommendation that we just adopted just a few moments ago, with regard to the prioritization of resources, and if I don't misunderstand, at least to this point, until I hear more that sways me toward somewhere else, that we really need to work seriously on this backlog before what we do is open up the funnel and get into this situation, and I know Phil mentioned five years, and I know the Commissioner spoke in terms less than that.

But I think we really end up with cross purposes on so many different fronts with regard to public opinion on the intrusion issue, with regard to the enormous amount of resources, the turn-around time and the effects on that, that I would really need to see a lot to convince me that this issue is something that we should adopt or even address in the near or foreseeable future.

Conviction is one thing, and that's a step, a baby step that perhaps we can take, but arrest or detention, as Michael and the Commissioner discussed, is worse.

MR. ASPLEN: I think that it would be very important to include in the discussion and the recommendation to the Attorney General the logistical issues that I think you're talking about.

I mean it's not just a matter of is it constitutional, what are the privacy concerns, but what are the technology and what are the funding concerns?

I think that that's all part and parcel of the whole process, that I think we bring in people -- and the reason that Steve Niezgoda, who I think just walked out the door -- the reason that Steve is here is because I think of exactly what you're saying.

It's not just a matter of can we or do we want to, it's how could -- ultimately, when could we be able to do this?

I asked Steve to come so that he could kind of start digesting what's going on here, so ultimately he can come and tell us what it means for CODIS, really, from a logistical standpoint.

So, the exact concern you're talking about, I think, is exactly part of the process that needs to be gone through to go to the Attorney General.

MR. CLARKE: And we had a lengthy discussion in our working group, the laboratory funding working group, a couple of weeks ago, about this question, and one of the issues that came up is do we as a commission make recommendations for the next year, next two years, or do we go beyond that, at least to the extent that we can foresee those, such as collection of additional samples beyond conviction, and we spent a good deal of time talking about that, what function we should have in that role, if any, and I think we felt that we should have a role, because I think at least my sense from that meeting is we all believe that this will be a fate accompli at some point.

It may very well extend beyond arrestees to, as was mentioned, births or whatever category is selected, but I detected a clear sense that we all felt this is going to happen, and the question is do we ignore it or do we do something about it?

MR. SCHECK: Well, pursuant to what we were talking about this morning, studies and data, it seems to me that we really can't even get close to addressing the kind of proposal that Commissioner Safir made unless we begin to collect other kinds of data, and these are the categories that came to mind almost immediately.

How much does it cost to type the collected but not tested samples?

Now, I think we already must have some data on that, because that's the recommendations we just made to the Attorney General.

How much would it cost to really type the owed samples? We all know what we mean by that.

How much would it cost to do a DNA testing with a two-week turn-around time on the following categories of samples?

New arrests -- and by that, I mean, you know, new cases where somebody has been arrested, law enforcement wants a DNA test done to either exclude or incriminate, and you know, that obviously is a tough kind of number. You would only be able to get an estimate based on how many, from a survey of, let's say, prosecutors and crime labs within a jurisdiction, as to what percentage of cases they even ask for it for arrested individuals, okay?

But we have to have some way of trying to get at that number.

But how much would it cost for a two-week turn-around time on that? How much would it cost for a two-week turn-around time on all rapes and homicides where there are no suspects, because we can anticipate in virtually every rape and homicide that there's going to be a need for DNA testing, crime scene testing, no suspects.

Then how much would it cost to do certain other designated felonies, and I would put into this category burglaries, or some percentage of them, where you think you could profitably do crime scene evidence.

Now, I'm just following -- I'm doing what the Commissioner is doing, saying, okay, let's follow the British model. They're looking at two-week turn-around time.

How much would it cost if we were to do a survey -- maybe we don't have to do every state or every city right away, but I think we do need some data in this regard to get a sense of what the costs are.

My fourth category, then, is how much would it cost to do old, unsolved cases? Let's just limit it to rapes and murders, and I have to give the Police Commissioner credit, because when I went to him with a lot of these notions, you know, I said, well, let's count the rape cases, let's stop destroying them after five years, and you know, he did that immediately, and he's counted them. He's got 10,000 rape cases in the city, in New York alone, untested, old unsolved rape kits.

I think we should find out, for example, in other jurisdictions, how many they have, you know.

So, once -- I don't know, you know, how extensive this survey would be, would we take a certain number of representative states or jurisdictions, but without this kind of data, you know, which maybe you could contract out and have done in, you know, a month or two, I don't know how we begin to make any sense about these problems.

I think we know that these are more or less questions, and then, of course, we would want to look at ASCLAD, the survey sheet that Paul says ASCLAD puts out, maybe we could even work with them to some degree, in having some uniform definition of a case and ask them how many -- can you tell us with any precision how many samples you test per case.

Without some notion of this, I don't know how we can even begin to -- how could you possibly recommend taking samples from every arrestee, unless you had a handle on this?

DR. CROW: I suppose you want to balance this against the cost of reducing the backlog.

MR. SCHECK: The backlog was the first thing I said. These are all backlogs, I would say.

MR. KENNARD: We would say arrestees would be the very last thing. Let's get our priorities in place.

MR. SCHECK: I should say personally that I just sense -- I know that, by the time we start -- if we do any of these things, we are going to find, as we travel down these roads, a lot of interesting civil liberties questions that we hadn't thought about.

Already we have our issues about, you know, fuzzy searches.

I can tell you right now, one issue that's emerging in our working groups is what about local crime labs that are collecting samples for elimination purposes but not returning them or destroying them but are keeping them to create their own mini data banks outside of CODIS, you know, outside CODIS data banks, for lack of a better term.

These are things that, you know, just sort of started happening, and I'm sure, as we proceed down the road, there's going to be a lot of other issues that arise that we have not thought about.

MR. GAINER: Well, we're raising, clearly, interesting issues and important questions. I guess I'd like to -- unless it's only me -- bring some structure as to what it is we're trying to do by when, and given that August 1st is only 150 days away, which means our end product probably only has about 120 days, we perhaps ought to decide what form it is and what we want to accomplish, and then we could answer some of those questions about what we ought to ask.

So, I sit a bit confused from a global commission point of view is what the "this" is that Professor Smith was talking about.

Now, clearly, from the crime scene processing group, we have some goals in mind, but I guess I'd like to see some clarification from the Commission what it is that we have in mind, or we can get sidetracked by important but interesting issues that come up.

So, for instance, even on this one, I don't know that we should get too sidetracked on this complicated issue, which is very important, has a lot of questions to be raised, and this become, you know, the national commission on testing all arrestees, and I don't presume that we're doing that, but sometimes it feels like maybe we're losing sight of where we want to be in the few short whiles that we have to be together by August 1st, and I need some re-clarification of that.

MR. SMITH: My point was similar, and it's just simply that it seems to me that the proposal that the Commission has put forward is one of a whole bunch of possibilities for reaching beyond existing or projected databases for DNA identifying information that would be used with the law enforcement.

There's lots of other possibilities, and it would be a mistake, I think, for us to focus, even for a August 1 delivery date, on that particular proposal as if it weren't part of this larger set, because we could very much change our minds about the value or the timing of this proposal if we had a proper understanding of what the rest of that universe looks like and what a principled and effective approach to it would be, and so, I'm very reluctant to try and respond at all until we've done some of that other work, which is probably not going to be August 1st, to the Commission's proposal, at least as a formal matter to the Attorney General.

Now, if what she's really looking for is for us to do something specifically on that, I take that to be a slight change in our mission.

MR. SANDERS: I guess the thing that concerns me is, whether we want it to be an issue or we don't want it to be an issue, the Commissioner is probably one of the most visible people in law enforcement, and he's raised the question.

He's also put it on the agenda for the major city chiefs and now he's talking about the executive committee of the International Association of Chiefs of Police.

So, regardless of what this commission thinks, it's going to become a question that needs to be addressed, and what concerns me is that, though we ought not be driven by headlines, we are, and the American public starts to hear this discussion.

When you hear things like they said about the rapist, the most serious serial rapist in New York's history, they could have tracked him back to the first arrest with that computer crime.

So, let's just say, for instance, in the discussion, that the guy raped 30 women. He could have been arrested after the first rape, and that's the kind of emotional thing that's going to drive this thing, and it's going to become an issue whether we want it to or not.

So, I just don't think we should lose track or lose sight of that.

I would also think that that's probably one of the reasons that the Attorney General wants recommendations as quickly as she can get them, because whether we want it to be a political issue or not, it's going to become one, and there is going to be pressure put on there, so I don't think we can lose sight of that.

MR. ASPLEN: If I could, I don't think that the Commission necessarily has to come out and say, Madam Attorney General, you should do this, you should do that. Remember that much of the value of what we do is in the analysis itself and to allow the Attorney General and her staff to make the decisions based on that analysis, but it seems to me that, to some extent, the issues break down kind of like this.

There is the issue of whether or not the proposition is a constitutional one and whether or not there are constitutional -- initially, constitutional prohibitions against it and that we could maybe address that, certainly in a more expeditious way than the survey that Barry is talking about, and we could possibly do that in relatively short order to come up with an analysis of the constitutionality of it.

The next issue, once you get past that, may well be the broader, grayer area of privacy and societal concerns and whether or not, from a privacy standpoint, this is something that we want to do.

Along those lines, it seems to me that the comments made this morning regarding keeping a lid on Pandora's box, that perhaps an analysis of, if it's constitutional and if we think about doing this, here are the recommendations we would have to make it a secure system.

Here's what we need, the destruction of sample, perhaps, etcetera. How do we ensure a security system that's constitutional? How do we secure and really provide confidence in this system?

And then I guess the third component is, all right, now here are the logistics of actually trying to do this. We've laid out the constitutionality and the guidelines, but here are the realities of trying to do this in the face of our backlog of convicted offenders, etcetera.

Does that kind of process help from a procedural standpoint, that kind of definition of the areas, or not? Is there a value to that?

MS. BASHINSKI: I'd like to see broader issues defined first and then worry about our product next, and I don't think they're mutually exclusive at all, and I think we have to do what you're talking about, which is identify the most significant issues. This is one, but there are several others.

We may or may not have an answer or a product or other strategies to suggest, but I think it's certainly our obligation to identify what those issues are and what the questions are that need to be answered for the most significant things that we can think of that relate to DNA.

So, I don't want to just talk about can we afford to do something. I think it's more important first to talk about what those things are and what the legalities are.

MR. CLARKE: There's an ebb and flow to the issues within this commission's work, as well. The post-conviction review, for instance, has been marvelous and was probably the driving force -- and was the driving force behind this commission.

Now, we're seeing other issues coming to the forefront in terms of sample collection, database samples, and even proposals as to who to take samples from. That's being brought, I think, more to the forefront not only because it's technologically driven.

Now we're seeing new advanced forms of sample collection, the ability of laboratories, if not already, in the short future, ability to do high-volume work, probably volume beyond any of us is even aware of, in many respects.

MR. ASPLEN: It is, quite frankly, also an excellent opportunity to enforce or to highlight, again, the issue of the backlog, the database backlog, if we say this is -- you know, we believe it's constitutional, theoretically, we believe that here's how you make the system secure, but we're not ready to go there yet.

We've got these other problems. We need to learn to walk first before we can run. So, let's revisit the issue in two years from a logistics standpoint, from a funding standpoint.

That's purely hypothetical, but I offer it only as a process of analysis for us to look at the issues.

MR. GAHN: You're exactly right. I mean I can't -- it's something I think we could address in a few years, or someone address it, but right now, the efficiency of taking samples from arrestees is going to be based upon your case index, and if you have your continued backlog of all these unsolved cases and they aren't profiled and put into the data bank, it makes no sense to me.

MS. BASHINSKI: You identify it as an issue.

MR. THOMA: And if we identify it as an issue, I think I agree with the way -- Chris' analysis. A lot of our issues would go this same way, and I have no problem with doing it that way if we're going to examine that issue.

MR. CLARKE: Because it may be more effective, as disdainful as it would be with respect to backlogs and old cases -- at some point, it may wiser to cut off the leg and to move on.

I mean I don't like the sound of that, but it may be more effective in fighting crime to literally cut off the gangrenous portion of the leg.

MR. GAINER: That was a lot of the conversation we had in our working group with the prosecutors. Why work back in 1972 when there's so much more we can gain in the last -- closer time?

MR. CLARKE: And some of those cases, even if solved, may not turn into anything. Some of them obviously need to be worked, there is no question about that.

MR. GAINER: There is not a case we wouldn't like to solve, but there is just a finite amount of people, time, energy. If a person committed murder in 1972 and we haven't caught that person yet, the likelihood that that person is a recidivist now, 27 years later, is slim and remote.

But I do feel bad when we don't work out a rape case that happened last year, because I'm really confident that that person is out raping as we sit here and jaw-jack about this stuff.

MS. BASHINSKI: When I hear people say that they aren't finding fingerprints at scenes, that tells me they're probably not putting the energy -- that if they put a lot of energy and effort, they would be finding a great percent of scenes with fingerprints.

So, if there's a problem finding fingerprints, where are the resources going to come for the street enforcement for people to spend that time at the scene to collect those specimens? That's another great cost we haven't even talked about, but it's the front end.

MR. GAINER: I'd like a clarification on what those issues are that we're trying to resolve, because clearly, we're all pretty good problem-solvers if we know what the issue is, but I think we've raised so many different things here, I don't know which one we're concentrating on.

So, it's hard even to think, at the next Commission meeting, let's bring someone in to talk about -- what? If someone could say what's the top five things we're trying to wrestle with, then we'd be in a good position to advise the staff as to whom we want to listen.

MR. SANDERS: It's like digging in sand. The more you dig, the more the sand comes in.

MR. SMITH: Let me give you an example of a question like that.

To be responsive to the Attorney General on this proposal, it seems to me we have to have a better grip on whether or not disposing of the tissue immediately upon generating a profile is going to be good practice, because if the answer to that question is either we don't know or no, then the privacy concerns associated with the existence of a database like that is different than if it's simply a file that's on record for persons who have been arrested.

It's a very different world, those two worlds, and so, I feel like these issues are too entangled for easy resolution.

DR. REILLY: But I would think that we have close to us, if not in this room, people who can give us an opinion about that.

MR. SMITH: That's right, we had some before, but it seems to me that issue would be worth talking through. Maybe we have to have a list of the kinds of issues like that that we need to have talked through before we can properly respond.

DR. REILLY: The more I think about it, I think what we should do is formulate or attempt to crystallize a short series of questions, I don't know whether it's going to be three or 12, agree upon them, ask a series of experts to comment in writing, and I would turn to law professors, population geneticists, molecular biologists, and say you've got 60 days.

I mean I've seen this used effectively in the past, and if nothing else, again, it goes to due diligence, and I'm not saying that the quality of the replies will always be good, but for you to be able to say as part of your report to the Attorney General, as to the question of retaining whole DNA, we asked 30 molecular biologists or 30 forensic scientists and we got the following spread of answers; as to the prospects that STRs, while possibly not the perfect or best available tool, will be an adequate tool for the next decade, we asked a group of people -- I think that's not that impossible to do and is actually much more efficient than meeting every 90 days and bringing just three experts in.

MR. THOMA: I'm more for that than I ever was after listening to Norm and Terry. It made me think about whether we're dealing with these older cases, and what Jan says about, you know, crime scene processing has changed and become probably more efficient than it ever has, and I think we really do need to list our concerns and move in that direction, and scientifically, it's an accepted practice, and I don't think it would be a bad idea at all, but even in doing that, Phil, I think we need to prioritize as to which ones are most important for us to have addressed.

DR. REILLY: I think that's a profitable way to use part of the afternoon, just as a first iteration, what are the five questions you would most like to see answered to your own satisfaction, Chris, before you took it on your shoulders to walk up in front of the Attorney General and say here's what we think.

MR. THOMA: And I don't think one of them would be do we take DNA samples from each person arrested. I don't think it would be one of those five.

MR. ASPLEN: Whether it is or is not is not an issue. Our personal opinion on that matter doesn't matter.

We're in a position of having to deal with that issue and finding a way to do that. However, in terms of the broader mission of the Commission, if you will, and looking towards the termination of the life of this Commission, I am in full agreement with the identification of those.

DR. REILLY: One thing I'm convinced of, this Commission may terminate, but there will be other commissions like it in the future, because we're going to be watching the evolution of this for the next decade, and well it should be watched.

MR. GAHN: I'd like to just present one other thing.

We've danced around with this since the start of the Commission. We hear all these statistics on someone who has committed a crime in the past and are they more likely, then, to commit crimes.

Mr. Levy, I think, brought up a very good point, and I'm just wondering if it's something for the Commission to consider.

What if we -- and I think it would be a very relevant population -- what if we just took a really extensive criminal records check on every cold hit so far in America and just see?

I mean that's the reason we have this data bank, is get that cold hit, and here we have a population now of quite a few of them. We have about 20 in Wisconsin.

MR. ASPLEN: Steve, can you give us an idea about how many cold hits there are in the country?

MR. NIEZGODA: Yes. There's 500, roughly.

DR. CROW: Well, that's quite a large number.

MR. GAHN: We've talked about this since the start of the Commission and the British model and all. Why don't we look at all our cold hits in this country and just see what does the criminal history show?

MR. CLARKE: So, Chris, to go back to your question of about a half-an-hour ago, I think we should hear from David Kaufman. What's going to be not just now available but on the horizon in the next one to two years?

DR. REILLY: Off the record, I approached a senior molecular biologist in the United States who said his lab would do all 450,000 samples in six months for $50 a sample. I'm not going to quote him, because he's not here.

He regarded the backlog problem as trivial and that we've completely underestimated the ability to do large-scale typing, that the right labs haven't been involved.

There are, from what's available in the human genome project, genome sequencing centers around here that make the best forensic laboratories look absolutely primitive. If you wanted to do it, you could do it very fast.

I'm not saying we should go that route, but you could do it.

MS. BASHINSKI: Do you think it is a good idea to try and identify these questions? Who ought to be sampled, and how should that data be secured or limited? What's the access to it, all those other issues.

DR. CROW: All of these are relevant, and what we're asking for is whether to institute a arrestee.

MS. BASHINSKI: That includes the arrestee, that question.

DR. CROW: Is there an approach that says you don't look at this or you don't do it, at least, until you've made a little more of an impact on the backlog, a certain fraction of an impact, rather than dollars? It might be easier to do it in terms of how much you accomplished rather than how much it cost.

MR. SMITH: But if Phil is right, we could see that backlog evaporated by the time our report is published.

DR. REILLY: Only on a theoretical basis. We have all sorts of logistical obstacles, such as some states being unwilling to out-source their samples.

What I'm saying is that, in a plutonic world, you could gather up all the samples, send them to just a handful of labs, and so 13-STR typings very quickly, all sorts of logistical problems that Paul is far more aware of than I am.

MR. SCHECK: When Chris started wrestling with the problem of the backlog -- is it about a year ago already? -- I mean the first bottleneck we hit was the owed sample problem, and that's really just a question of state bureaucracies collecting samples from people from whom they're supposed to be taking urine tests every month.

DR. REILLY: Agreed. I'm only talking about samples in possession. But that in itself would be a big step. I believe you used the term 18 months or the term was used for 18 months as a deadline.

I personally think that's a realistic timeframe only if the states are willing to out-source. If it's not willing to out-source, I don't think we'll come remotely close to that.

MR. SCHECK: One of the things, in terms of our delphic questions, I mean I think it would be very useful for all these discussions to try to take some positions on things where we don't necessarily need a tremendous amount of data in terms of recommendations, and these, I think, are some of the privacy issues, because I think that, in terms of moving moving forward in certain areas, we saw with the discussion with Mr. Steinhardt this morning that -- I don't want to misquote him or anything, but I think Dr. Reilly got him down to issues like, you know, it would significantly reduce his concerns about some of these privacy issues if we -- after STRs, we were, you know, to adopt the position or make a recommendation about destroying underlying samples, assuming that we can get beyond certain quality assurance issues, all right, which I know are there but I can't articulate them all.

But things like that, you know -- I mean I think there are certain discrete issues that we can actually take positions on, and I would argue that it's very helpful that we do, because it gets the debate, you know, off the ground.

I mean, for example, one of the things that would be useful, I think, for the next meeting -- and it doesn't necessarily have to be speakers -- is to just get a better handle, more information on who out there is really saying that we have a genetic basis for certain kinds of behavior that would be considered by courts at a sentencing phase or something like that.

I don't think we need to understand all of that. We just need to understand what's out there in order to issue recommendations to the point of saying, well, this could be happening and you ought to have these concerns or those concerns.

In other words, I'm very disturbed. One thing that I would like to see, Chris, and I have asked for it, is we should have an analysis. I know Dawn Hirkingham is supposed to have this data. I'd like to see an analysis of all the database statutes in the states and which ones of them would permit anything other than forensic identification purposes.

In other words, Massachusetts has that provision that Mr. Steinhardt described this morning about, quote, you can use this for humanitarian purposes, whatever that means, how many of them still say law enforcement, how many have been corrected, and I think that's an area where we really could make some progress towards making some bright-line recommendations, if I read the room right, that would assist us -- would create a better comfort level in terms of moving on to other things.

MR. THOMA: Well, I think, even if we don't address the backlog, which I think would be a monumental error, from what I know now, the owed sample problem is something that is almost insurmountable, and you can't go past that to try to get to a new group of people to take their samples when you've got whatever million -- I'm sure it's increasing since the last time we heard that -- I don't know how we can jump past that to go to a newer, broader spectrum of people that will now owe samples, instead of a million or two million owed samples, make it 50 or 60 million, whatever we're going to do.

MR. SMITH: That, of course, is one of the points that the Commissioner was making about the advantages of doing it at arrest. It's the one point in the criminal justice system where everybody who's going to go forward is in hand.

MR. ASPLEN: That's one of the conclusions we came to in Paul's working group. It ensures 100-percent compliance, and it's the only way to ensure 100-percent compliance.

If I could do this, for administrative purposes, to make it a little clearer for me, I think the first thing we need to do is figure out how we're going to deal with the specific request that's on the table right now and then deal with the issue of what other issues does this commission need to deal with, understanding that some of those issues are going to intersect, and utilizing the recommendation that Phil put forth in terms of the different questions that we need to ask.

So, if we could take a few moments and talk about the limited issue of the DNA from arrestees proposition and the related issues that we need to address so that we can have something in the short term for the Attorney General, identify what those issues are involved in that process, it seems to me the first issue we need to address is, is this a constitutional proposition -- does that make sense? -- and that we could, through the method that Dr. Reilly has set forth, send that questionnaire out, or at least questions to that, among other things, as to whether or not it's a constitutional proposition.

Does that make sense? Does the Commission agree that that's an important part of this process?

DR. DAVIS: Are you asking is it a constitutional question or is it constitutional do it?

MR. ASPLEN: What are the constitutional ramifications of that proposition?

DR. REILLY: So, you might phrase it as -- you know, you would quote language of a statute that Commissioner Safir might have recommended and say, based on your knowledge -- he's a professor of criminal law -- and not to go just to academe, there are many other wise minds we might approach -- based on your knowledge of the law, would you -- in your opinion, would a Supreme Court decision find in favor or against this statute, applying your knowledge of Fourth Amendment-related law?

DR. CROW: I think we could take that and condense it into fewer words, but the idea is fine.

MR. SCHECK: It should probably follow the Commissioner's proposal. In other words, there would be restrictions in there about using it -- treating it like fingerprints, only for identification purposes.

DR. REILLY: So, we should formulate it and make it tight and make it as unambiguous as possible, because many of the readers won't be worried about ambiguity.

DR. CROW: I certainly do like the idea of doing it just by mail, though. We got a great deal out of hearing the speakers who were here today, but it's a volume issue.

DR. REILLY: I know when I've worked on NRC committees, we've taken some comfort in the fact that we could turn to outsiders and say -- you know, we got a couple hundred other opinions about this, that maybe it wasn't a formal analysis, but at least we read through their replies, and it's sort of like the comment period in the Federal Register.

MR. ASPLEN: So, that seems to me to be issue number one or hurdle number one to jump over, to deal with.

The next issue would then be, if it's not a constitutional issue, what other privacy issues are there? I mean, you know, just because we can, should we kind of thing, and again, it more goes to how do you keep the lid on Pandora's box?

How do you make a system -- if you agree it's constitutional, how do you make it secure?

DR. REILLY: I think there you might be asking a different set of people those questions.

MR. ASPLEN: I agree.

MR. SMITH: There's an area in between, is there not, of what do we think the potential distorting effects might be of doing it? I mean the kinds of questions I was asking the Commissioner had a little bit to do with that. Will it change arrest practices?

You know, the standards with respect to other processing decisions in the criminal justice system could be very much affected by this. That's not a constitutional question, but it would be folly not to put those kinds of questions into the mix.

MR. THOMA: It could create a lot of short-term arrests.

MR. SMITH: It needs to be investigated, that's all.

DR. REILLY: And the simplest way to do this is to put a question something like this: What is the most cautious possible approach to introducing large-scale use of DNA data banks, and it might be, for example, to absolutely forbid a low-stringency test, to say that the only purpose that we will ever run a sample for is to seek an identical match, period, and that we will never save the DNA, and you know, you build in things like that, and you may limit it in some sense as the ultimate use, but for current use, you also diminish objections to it. That we've heard clearly today from our testimony.

I don't think there are a lot of questions. One of the things we have to be careful about is this notion of encryption and protection and all of that. I'm not sure we have the expertise available for that. So, definitely, we would have to go outside for that.

I hope I'm not shorting anybody here, but I certainly am not an expert.

MR. CLARKE: Some of that already goes on in terms of how database samples are collected and when they're typed by outside laboratories.

DR. CROW: Couldn't you ask people, too, how high a priority they place on this versus the backlog?

MR. SCHECK: Do we have the capacity, Chris, to do those questions I raised before, to do any surveys before the -- any survey data? I mean wouldn't it really help to know how many unsolved cases people have?

MR. ASPLEN: I hate to say no to anything. All I can say is that we would, you know, certainly proceed with due speed.

MR. SCHECK: Does CODIS have any of that?

MR. NIEZGODA: I don't think so.

MR. SCHECK: We're asking the wrong audience. We've got to ask the cops.

DR. DAVIS: If you're going to do something like that, you'd have to do it on a very narrow basis, select a limited number of people, get the data in detail, and then run with that, rather than try to do it across the board. You'd never get it done if you tracked everybody.

MR. SANDERS: You've still got the concern on the law enforcement side as to why you're asking that question and how it's going to be used against them.

DR. DAVIS: Another thought I have in reference to what this commission is supposed to do -- I don't know if it's supposed to come up with the final, complete, the ultimate, penultimate, whatever, answer and answers to every single problem in the future where DNA enters into it. If that's the charge, I don't think this commission can ever do it.

So, I see the Commission issuing two sort of reports, one where we have some advice, with details, and the other is where we issue that there are problems to be considered in the future by additional studies and other people, in other words sort of a two-prong approach.

Those things that we can dish up in a reasonable, final fashion, we ought to concentrate on those being put through, and then those which need further analysis and go beyond the scope of this Commission -- those could be mentioned or passed on, and I'd like to see -- I'm looking to the end of this someday. I hope there's an end.

MR. ASPLEN: I understand that sentiment.

DR. DAVIS: I don't want to put you out of a job, Chris.

MR. ASPLEN: I have one to go to. It's all right. I agree 100 percent.

I think that, in terms of my request of some direction on the particular issue, what I see is the constitutional questions, the questions regarding the potential privacy concerns, incorporating what Professor Smith -- I would include Professor Smith's concerns about how this changes the process, the investigative process, in kind of those other miscellaneous concerns and then, you know, Barry, your considerations regarding the actual numbers, which would reflect, you know, what are the logistical realities of the whole issue.

I think that what we can do is the Commission staff can kind of take those concepts, get back to you in the next week or two for some more guidance but develop probably what will be a couple of different questionnaires to go to a couple different communities and then see how you feel about that and start to get those out there and begin to deal with this issue that way.

Does that make sense? Are people comfortable with that?

MR. SCHECK: It does.

Chris, are you including in this the concern about racial targeting?

DR. REILLY: I think that's implicit in the concern about the impact on the system. I certainly think it should be included.

One of the questions asked by somebody is to what extent does this progress reinforce inequities in the system?

MR. SCHECK: There tends to be a disconnect between -- you bring a panel of people together like this and then you go back and you look at, as Mr. Steinhardt was talking about, our -- you know, what seem to be intractable problems of racial profiling on highways, and you know, we really should find a -- there are people that address these kinds of issues, and I know they have specific concerns, because you know, putting apart everything else, if you begin to look at this issue, if I were the Attorney General, and I'm saying, well, I have some logistical problems in thinking about arrestees, there may be a constitutional concern, there may be these concerns, but I'd have an awfully serious concern, just in policy terms, of you know, literally, the public relations of all of this, because there is a racial component that -- a racial targeting component that people in this country have a good basis for worrying about, and we should hear from people in that area.

DR. CROW: Well, you could ask whether -- how this will affect racial inequities or possibly improve them. It could work either way, in principle.

MR. THOMA: Well, I can tell you pragmatically how it does. I mean just in Mendocino County, where we have probably between 40 to 60 percent dismissal after an arrest, in the Native American population, that's well over three out of four.

DR. CROW: Are dismissed.

MR. THOMA: Are dismissed.

MR. SCHECK: I mean those statistics that Mr. Steinhardt gave about Maryland understate the New Jersey turnpike. I mean there were more than that.

MR. GAINER: I just feel compelled to mention from a police perspective that a prosecutor dismissing the case is not a definite indication that there wasn't probable cause to make the arrest. Many prosecutorial decisions are based on whether they think they can win.

So, we shouldn't jump to the conclusion that, if 50 percent of the cases are not prosecuted, therefore the police made 100 percent bad arrests.

MR. SMITH: If probable cause to make an arrest is the threshold for taking a DNA sample, and that's what this reduces to, that's an interesting thing to look at. Why choose that as the threshold.

It's not a particularly efficient threshold, I don't think.

It's not particularly related to the uses later to be made of DNA samples taken, and it seems to me it drives you back to the question of what's the best, most efficient, most effective for law enforcement purposes, method of collection, and do we have problems with that?

DR. REILLY: I would pose a parallel question, though. You post it from the point of view of law enforcement.

Echoing what I've heard from the Attorney General, I would pose it as what is the best thing for justice, and the two are not always exactly in parallel, and I would at least entertain -- I will not dismiss out of hand the prospect that Commissioner Safir's proposal actually is one of the single best things to protect historically discriminated against communities, that the rapid analysis of DNA to exclude may actually help more than hurt those communities. I'm not willing to at least dismiss that possibility.

DR. CROW: Well, we should ask the question in such a way as to permit that possible answer.

MR. SCHECK: I guess the point that Mr. Steinhardt was making this morning about what we found in the case in New York, the 41-bullet shooting, that they began looking at this anti-crime task force that was involved in this incident and finding some extraordinarily high number of stops per arrest.

Michael, I don't think you were suggesting this, but I -- maybe you were. You know, I'm saying that I am, you know, truly concerned about any kind of law enforcement system that's going to start taking the DNA samples from people at stops that don't come to probable cause.

MR. SMITH: It reduces to anybody they want to take them of, doesn't it? Under these standards, you could take DNA samples from anybody you wanted to take a DNA sample from.

MR. SCHECK: Frankly, if anything, I guess where I'm thinking is that that -- you know, we're not Great Britain.

In Great Britain, when they say we're going to take a DNA sample from everybody on an imprisonable offense, that has a different kind of cultural significance than it does in the United States, where if you can pick people up off a highway and profile them, because everybody may have a busted taillight or move in and out, and it's used as it has been demonstrably used, as a method of racial targeting, and then if you're saying, well, we're going to let everybody on misdemeanors -- arrested for misdemeanors have their DNA samples takes and thereby lower the bar for pretextual arrests, you know, that may be an argument for raising it and saying, well, let's only take it from people charged with felonies, if you even want to go down this road.

MR. CLARKE: Ironically enough, I'll be almost all of us, if not all of us, are all in the fingerprint database.

MR. SANDERS: The drug interdiction profiling on the highway does not in way, shape, or form indicate the amount of arrests.

I mean we do a lot of intrusions, I guess, as far as a quizzical kind of thing, but to bring it to the level of arrest or to suggest that even -- Mr. Safir was suggesting that we'd make -- with that probable cause thing, I still do not understand why you would think that the law enforcement industry -- would suggest that we do DNA testing on everybody that we could establish cause.

MR. SMITH: I'm not saying you want to or that you would.

I'm just saying that, if we're trying to find a standard, a good one, for answering the question, from whom can we and should we take DNA samples for identification purposes, there are some problems with triggering, using the arrest power as the basis for that, because that reduces to simply a standard of -- if you have probable cause to make arrests, we now have crossed the threshold.

I'm making simply the argument that that doesn't look like a very good standard for me, either from a law enforcement point of view or from a principle point of view.

It also has the problem that Barry's suggesting. That is, it leaves wide open to individual decision-making by highly discretionally charge officers the question of whether or not we're going to take the sample, and I'm not sure that's desirable.

MR. THOMA: I don't know whether we want to go any further with this, but there are a lot of discretionary aspects to this. How full the jail is at any particular time has to do with whether an arrest is effectuated, and I don't know if we really want to get into all that.

MR. GAINER: The record needs to be cleared up that, if arrest was the threshold in probable cause, there are enough professionalism and training and oversight and leadership and punishment if that's violated to assume that law enforcement can handle it.

Again, I do hear a lot of conversation that, somehow if this was to go, then we'd have a group of law enforcement officers running rampant.

We as chiefs of police no more support that than we would using false arrest to get fingerprints or to search cars or even the example that was used in the most simplistic form, that someone was stopped for a -- I don't remember the underlying -- they stopped them for a traffic violation and searched the car.

Well, it doesn't happen that way. There has to be a lot more to what goes on from the time a police officer stops a car till he makes the search of the vehicle. If it does happen, then there's a lot of things that we all need to do to make that it doesn't.

MR. GAHN: The practical effect of all of this is that haven't we learned something from the past years when all of the states enacted their legislation to take convicted offender samples?

We've got 450,000 still sitting in freezers, and to me, this makes no sense ever even addressing this issue right now. I mean it's something to address, but we have to tell the Attorney General --

DR. CROW: We've got a job to do first.

MR. GAHN: -- we don't have the capacity to do that.

I think contracts should be let by states for out-sourcing before anyone signs it.

MR. ASPLEN: And if that's the conclusion, that is a perfectly appropriate and valuable recommendation to make, no doubt about it.

JUDGE REINSTEIN: But at the same time, it would be helpful to have answers to Barry's list of how many owed samples are there -- I would guess that, you know, each state has the number of probationers and parolees that they have out there, and then, as far as unsolved crimes, that's going to be a tough one, I would think.

DR. CROW: It's time for a coffee break. You know, I've decided that the most pathetic object in the world, really, is a population geneticist in a group of lawyers.

[Laughter.]

[Recess.]

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