1. 2005 LEGISLATIVE UDATE National Association of Attorneys General Criminal Law Division Presented by: Smith Alling Lane, P.S. Tacoma, WA (253) 627-1091 Washington, DC (202) 258-2301 London 0 (44) 798 953 8386 Lisa Hurst lhurst@smithallinglane.com March 15, 2005

2. Governmental Affairs Attorneys at Law Smith Alling Lane A Professional Services Corporation

4. DNA DATABASE EXPANSION

5. The Recent Trend To All Felons 1999 - 6 States2000 - 7 States 2006 - 45 States (est.) -- assuming data and funding 2001 - 12 States 2002 - 21 States 2003 – 30 States 2004 – 37 States

6. 2004 Legislative Session: DNA Database Expansion Bills Passed limited expansion legislation (2) Currently an all-felons state (30) Enacted all felons legislation in 2004 (7) Failed to pass all felons legislation (8) * Voters Initiative * ? ? Legislation vetoed due to unrelated provision

7. State DNA Database Statutes State DNA Database Statutes (As of February 2005) STATE Sex Crimes Murder All Violent Crimes Burglary Drug Crimes All FelonsJuveniles Some Misde- meanors Arrestees/ Suspects Jailed Offenders Community Corrections Retroactive Jail & Prison Retroactive Probation & Parole Alabama  Alaska  Arizona  Arkansas  California  Colorado  Connecticut   Delaware  Florida  Georgia  Hawaii  Idaho  Illinois  Indiana  Iowa  Kansas  Kentucky  Louisiana **

8.  STATE Sex Crimes Murder All Violent Crimes Burglary Drug Crimes All FelonsJuveniles Some Misde- meanors Arrestees/ Suspects Jailed Offenders Community Corrections Retroactive Jail & Prison Retroactive Probation & Parole Maine  Maryland  Massachusetts     Pennsylvania  Oregon  Oklahoma  Ohio  North Dakota  North Carolina  New York  New Mexico  New Jersey  New Hampshire  Nevada  Nebraska  Montana  Missouri  Mississippi  Minnesota  Michigan       

9. STATE Sex Crimes Murder All Violent Crimes Burglary Drug Crimes All Felons Juveniles Some Misde- meanors Arrestees/ Suspects Jailed Offenders Community Corrections Retroactive Jail & Prison Retroactive Probation & Parole Rhode Island  South Carolina  South Dakota  Tennessee  Texas  Utah  Vermont  Virginia  Washington  West Virginia  Wisconsin  Wyoming  TOTALS50 484740373226448 3622

10. 2005 Legislative Session: All Felons DNA Database Bills Currently an all-felons state (37)Considering all felons legislation in 2005 (9)

11. 2005 DNA Database Legislation (As of February 2005) STBill#SponsorSummaryStatus HIHB64Chang Requires collection of DNA from all persons convicted of a felony, including minors adjudicated of a felony, and requires defendant to provide buccal swabs in addition to blood samples. Retroactive only to currently incarcerated and community sentences. Includes juveniles. Committee HB 191Marumoto Requires DNA from all persons convicted of a felony, including minors adjudicated of a felony, and requires defendant to provide buccal swabs in addition to blood samples. Retroactive only to currently incarcerated and community sentences. Does not include juveniles. Makes an appropriation. Committee HIHB229Marumoto Requires DNA from all persons convicted of a felony, and requires buccal swabs in addition to blood samples. Retroactive only to currently incarcerated and community sentences. Does not include juveniles. Committee HIHB590Say Requires 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. Deferred HISB470 Chun Oakland Requires DNA from all persons convicted of a felony, including minors adjudicated of a felony, and requires defendant to provide buccal swabs in addition to blood samples. Retroactive only to currently incarcerated and community sentences. Does not include juveniles. Passed Policy Committee HISB699Bunda Requires 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. See SB 470 HISB957Kokubun Requires DNA from all persons convicted of a felony, including minors adjudicated of a felony, and requires defendant to provide buccal swabs in addition to blood samples. Retroactive only to currently incarcerated and community sentences. Does not include juveniles. See SB 470 IA HD SB 40 House Public Safety Requires DNA samples for convictions of murder, kidnapping, sex offenses, and some burglaries. (Roll-back on all felons statute, which has never been implemented.) Committee IA SD SB 1074 Senate Judiciary Requires DNA samples for convictions of murder, kidnapping, sex offenses, and some burglaries. (Roll-back on all felons statute, which has never been implemented.) Committee ILHB779Mendoza Expands offender DNA database to include all felony arrests. Requires expungement if no conviction. Becomes effective upon funding or by January 2008. Committee ILHB897MillnerExpands offender DNA database to include all felony convictions of not guilty by reason on insanity.Committee ILHB914Brady Requires coroners to collect DNA samples from any person who is suspected to have died of unnatural causes, and for those samples to be included in the DNA database. Committee

12. ILHB992DelgadoRequires DNA samples within 45 days of conviction for persons sentenced to life in prison or to death. Passed Policy Committee ILSB333Clayborne Expands offender DNA database to include all felony arrests. Requires expungement if no conviction. Becomes effective upon funding or by January 2008. Committee INHB1241Harris Expands DNA database to include all convicted felons, including conspiracy to commit a felony and attempted felony. Retroactive only to currently incarcerated, but prospective to include community sentences. Does not include juveniles. Includes $1 fee for all criminal convictions, infractions and ordinance violations. Pending House Vote INHB1253Lawson Expands DNA database to include all convicted felons, including convictions of conspiracy to commit a felony and attempted felony. Retroactive only to currently incarcerated, but prospective to include community sentences. Does not include juveniles. See HB 1241 INHB1267Pond Expands DNA database to include all convicted felons, including convictions of conspiracy to commit a felony and attempted felony. Retroactive only to currently incarcerated, but prospective to include community sentences. Does not include juveniles. See HB 1241 INSB13Zakas Expands DNA database to include all convicted felons, including convictions of conspiracy to commit a felony and attempted felony. Retroactive only to currently incarcerated, but prospective to include community sentences. Does not include juveniles. Clarifies a database hit is not invalidated if sample is included by mistake. Passed Policy Committee INSB318Bray Expands DNA database to include all convicted felons, including convictions of conspiracy to commit a felony and attempted felony. Retroactive only to currently incarcerated, but prospective to include community sentences. Does not include juveniles. See SB 13 INSB522Zakas Expands DNA database to include residential entry and incest, plus attempts or conspiracy to commit any crime listed as a DNA database offense. See SB 13 MSHB882FillinganeMakes mandatory current permissive language to collect DNA from all convited felonsCommittee MTHB113JentExpands offender DNA database to include all convicted felons.Passed House NDHB1061KoppelmanWould require DNA from all registered sex offenders, including those whose sentences are fully completed.Passed House NDHB1235Klemin Expands DNA database to include all convicted felons. Includes all sentences, but does not include juveniles and is not retroactive Passed House NELB143Price Expands DNA database to include all convicted felons, including juveniles. Includes community sentences, and retroactive only to currently incarcerated. Committee NJHB2747Johnson Expands offender DNA databases to include violent felony arrests and for disorderly conduct convictions. (New Jersey already collects from all convicted felons and some misdemeanors) Committee NJSB1513Sacco Expands offender DNA databases to include violent felony arrests and for disorderly conduct convictions. (New Jersey already collects from all convicted felons and some misdemeanors) Committee NMHB165BalderasWould require DNA from all registered sex offenders, including those whose sentences are fully completed. Passed Policy Committee

13. NMHB1001Arnold-JonesRequires DNA from all sex offenders upon registration.Committee NMSB55CarraroWould require DNA from all registered sex offenders, including those whose sentences are fully completed. Passed Policy Committee NVLD923WeberExpands DNA database to include all convicted felons. Draft request – no language available yet.Draft Request NYSB1018SampsonExpands offender DNA database to include all felony and misdemeanor convictions.Committee OKHB1219Morgan Expands DNA database to include all convicted felons, including community sentences. Retroactive only to currently incarcerated (if convicted after 1996). Does not include juveniles. Committee OKHB1509Roan Expands DNA database to include all convicted felons, including community sentences. Retroactive only to currently incarcerated (if convicted after 1996). Does not include juveniles. Committee OKSB506Branan Expands DNA database to include all convicted felons, including community sentences. Retroactive only to currently incarcerated. Does not include juveniles. See SB 646 OKSB646Nichols Expands DNA database to include all convicted felons, including community sentences. Retroactive only to currently incarcerated (if convicted after 1996). Does not include juveniles. Passed Subcommittee OKSB675Brogdon Expands DNA database to include all convicted felons, including community sentences. Retroactive only to currently incarcerated. Does not include juveniles. See SB 646 TXHB867AllenExpands offender DNA database to include anyone required to register as a sex offender, retroactive to 1970.Committee TXHB1068Driver Expands offender DNA database to include persons arrested for felony crimes. Requires expungement if no conviction. Committee VAHB1639Miles Expands DNA database to include persons arrested for soliciting prostitutes or a drug offense. (Virginia already collects from violent felony arrestees) Committee VTSB5IlluzziExpands DNA database to include statutory rape.Committee WAHB1135Miloscia Expands DNA database to include persons arrested for felonies, gross misdemeanors or patronizing prostitutes. Includes juveniles. Requires sample destruction if no conviction. Hearing held 1/25 WASB5165Kline Expands DNA database to include persons arrested for felonies, gross misdemeanors or patronizing prostitutes. Includes juveniles. Requires sample destruction if no conviction. Hearing held 2/9

14. Arrestee Legislation Arizona (2002, 2003) – All arrests California (2004) – Felony arrests Colorado (2003) – Felony arrests Connecticut (2000) – Fingerprintable arrests Illinois (2004, 2005) – Felony arrests Louisiana (2003) – Felony arrests and some misdemeanors Maryland (2004) – Felony charges New Jersey (2005) – Felony arrests New York (2001-2004) Fingerprintable arrests Oklahoma (2004) – Felony arrests Texas (2001, 2005) – Certain felony arrests and indictments, all felony arrests Virginia (2002) – Violent felony arrests Washington (2004, 2005) – Felony arrests

15. Enacted Arrestee DNA Testing Certain felony indictments, or upon arrest if previous conviction for certain offenses Expungement required Sample destruction required All felony arrests No expungement requirement No sample destruction requirement Violent felony arrests with probable cause Expungement required Sample destruction required Some violent felony arrests now, all felony arrests in five years Expungement required No sample destruction requirement absent expungement

16. California DNA Initiative (Proposition 69) Will other states follow? States that allow ballot initiatives

17. FEDERAL DNA FUNDING

18. 2005 Congressional Budget 3 DNA Backlog Elimination Act $110.0 M Eliminating casework and offender backlogs, strengthening crime lab capacity, training of the criminal justice community and identifying missing persons. 3 Coverdell Forensics Science Improvement $15.0 M 3 Edward Byrne Discretionary Grants $6.7 M Some earmarks for DNA and forensic science programs 3 Crime Identification Technology Act $11.5 M Some earmarks for DNA and forensic science programs

19. Edward Byrne Discretionary Grants.—Within the amounts provided, OJP is expected to review the following proposals, provide grants if warranted, and report to the Committees on Appropriations regarding its intentions: $2,000,000 for the National Forensics Science Technology Center in Largo, FL; $51,000 for the NH Department of Safety evidence storage expansion; $550,000 for Brown University Nanotechnology DNA Sequencing in RI; $225,000 for crime scene examination enhancement for the State of Alaska; $500,000 for the El Paso Regional Lab in TX; $100,000 for the Fulton County District Attorney’s Cold Case Unit in GA; $1,000,000 for the Mississippi Crime Lab to Address Forensic Backlog; $250,000 for the Ohio BCI Laboratory System Improvement Project; $200,000 for the Pikes Peak Metro Crime Lab DNA Laboratory in CO; $500,000 for Southeast Missouri State University; $200,000 for the Greenville Tech Forensic/DNS Laboratory in SC; $200,000 for the Texas Tech Forensic Science Institute; $150,000 for the University of Alabama at Birmingham Forensic Science Education and Training program; $400,000 for the Utah Valley State College Forensic Science Program; $200,000 for the Sam Houston State University, Texas, Center for Forensic Sciences. $200,000 for the Texas Center for Forensic Science;

20. Crime Identification Technology Act -- Within the overall amounts recommended, the conferees expect OJP to examine each of the following proposals, to provide grants if warranted, and to submit a report to the Committees on Appropriations on its intentions for each proposal: $4,000,000 for the Marshall University Forensic Science DNA Lab in WV; $4,000,000 for the West Virginia University Forensic Science Initiative; $1,000,000 for the Forensic DNA Analysis Lab at North Dakota University; $1,000,000 for the Honolulu PD Crime Lab in HI; $500,000 for the Fox Valley Technical College [FVTC] DNA Training Initiative in WI; $1,000,000 for equipment and planning for the Vermont Forensics Laboratory; and

21. 2006 President’s Budget Proposal DNA Provisions STATUTORY LANGUAGE (4) for technology for crime identification, $238,199,000, as follows: (A) $177,057,000 for a DNA analysis and capacity enhancement program, and for other State or Federal forensic activities, of which not less than $151,000,000 shall be for reducing and eliminating the backlog of DNA samples and for increasing State and local DNA laboratory capacity; EXPLANATORY STATEMENT DNA Enhancements.—$177.057 million is proposed for State and local crime laboratories to reduce and eventually eliminate backlogs of DNA casework samples (including crime scene and convicted offender samples), and for discretionary research, demonstrations, evaluation, statistics, technical assistance and training. Effective backlog reduction requires both the direct defray of sample analysis costs to meet immediate needs, and improvements, especially automation upgrades, in forensic laboratories to increase their capacity, eventually enabling them to keep abreast of their DNA analysis without additional Federal funding. These efforts will help prosecute the guilty and exonerate the innocent.

22. FEDERAL LEGISLATION

23. Legislation to Enact the President’s DNA Initiative Sen. Hatch Sen. Biden (R-UT) (D-DE) Adv. Justice Through DNA Technology Act (S 1700) Rep. Sensenbrenner (R-WI) Advancing Justice Through DNA Technology Act (HR 3215) Justice For All Act (HR 5107) Sen. Kyl (R-AZ) Adv. Justice Through DNA Technology Act (S 1828) Sen. Leahy (D-VT) Innocence Protection Act

24. Texas Association Against Sexual Assault Lobbying Coalition Assembled for President’s DNA Initiative International Association of Chiefs of Police National Association of Police Organizations National Sheriffs’ Association Fraternal Order of Police International Union of Police Organizations Private Crime Labs

25. More than $1 billion over five years (2005 through 2009) Title II – The Debbie Smith Act -- $151 million per year Ü Casework - No-Suspect and Suspect (50% of each year’s appropriation) Ü Offender DNA Analysis and Collection Ü Enhanced DNA capacity Ü Accreditation (1% of each year’s appropriation) Ü Other Forensic Sciences (if lab can demonstrate no DNA backlog) Title III – DNA Sexual Assault Justice Act – $107.1 million per year Ü $30 million for Sexual Assault Forensic Exam Program Ü $12.5 million for training for criminal justice professionals Ü $15 million for research and development. Ü $42.1 million for FBI DNA programs (including regional mtDNA labs) Ü $2 Million for Missing Persons DNA Programs Ü $5 Million for Post Conviction DNA Testing Ü $500,000 National Forensic Science Commission Title IV – Innocence Protection Act – $80 million per year Ü $5 million for Kirk Bloodsworth Post-Conviction DNA Testing Grant Ü $75 million to improve quality of Representation in Capital Cases PRESIDENT’S DNA INITIATAIVE: Justice For All Act (HR 5107)

26. 3 Expands database to include all federal and military felons 3 Allows inclusion of persons charged with a crime 3 Allows inclusion of other DNA samples “collected under applicable legal authority” BUT NOT: Ü Arrestees who have not been charged Ü Voluntary elimination samples 3 Permits national keyboard searches PRESIDENT’S DNA INITIATAIVE: Justice For All Act (HR 5107) CODIS POLICY PROVISIONS

27. Questions ?