LEGISLATION TO ADVANCE JUSTICE
THROUGH DNA TECHNOLOGY
Understanding the Issue: DNA technology is increasingly vital to ensuring accuracy and fairness in the criminal justice system. In order to realize the vast potential of DNA technology, several important legislative reforms are necessary.
DNA evidence is used to solve crimes in two ways:(1) In cases where a suspect is identified, a sample of that person's DNA can be compared to evidence from the crime scene. The results of this comparison may help establish whether the suspect committed the crime.
(2) In cases where a suspect has not yet been identified, biological evidence from the crime scene can be analyzed and compared to offender profiles in DNA databases to help identify the perpetrator. Crime scene evidence can also be linked to other crime scenes through the use of DNA databases.
In the late 1980s, the federal government laid the groundwork for a system of national, state, and local DNA databases for the storage and exchange of DNA profiles. This system, called the Combined DNA Index System (CODIS), maintains these DNA profiles in a set of databases that are available to law enforcement agencies across the country for law enforcement purposes.
In order to take advantage of the investigative potential of CODIS, states began passing laws requiring offenders convicted of certain offenses to provide DNA samples. All 50 states and the federal government have laws requiring that DNA samples be collected from some categories of offenders.
In order to take full advantage of the power of DNA technology to solve crimes and protect the innocent, states need to collect DNA samples from all convicted felons.
Currently, 23 states require all convicted felons to provide DNA samples.
These states have much higher "hit rates" (i.e. matches of DNA evidence to profiles of convicted offenders in DNA databases) than those states that require more limited categories of offenders to provide samples.
For example, Virginia (which has been collecting DNA from all felons since 1990) has a convicted offender database that now contains over 189,000 DNA profiles. As a result, they averaged 37 hits per month in 2002. Crimes solved by DNA in Virginia include 90 homicides and 196 non-homicide sexual assaults. Of the 1,070 hits Virginia has had to date, approximately 82% would have been missed if the database were limited to only violent offenders.
Florida started collecting DNA samples from offenders who committed the non-violent felony offense of burglary in July 2000. Of the 866 hits it has had in its DNA program to date, 45% were for offenders whose DNA was collected based on a burglary conviction. Crimes solved by DNA in Florida include 75 homicides and 373 sexual assaults. Florida will begin collecting from all felons beginning in 2005.
New York has had a total of 830 hits through March 1, 2003. The great majority (80%) came from offender samples taken after a 1999 law that broadened New York's collection authority from just 8% of all felonies to 65% of all felonies. Due to this success, New York's Governor Pataki is proposing to expand the DNA collection authority to include all felony and certain misdemeanor convictions.
Solution #1: The Justice Department is encouraging states to pass legislation that will help states expand collection to include all convicted offenders.
The federal government also collects DNA samples from persons convicted of offenses in certain categories. Will federal collection be expanded to include all convicted felons?
Solution #2: Today the Attorney General announced the proposed DNA Sampling Rule, which would add crimes of violence and other terrorism offenses to the list of qualifying federal offenses subject to DNA sampling. The Attorney General also looks forward to working with the Chairmen of both the House and the Senate Judiciary Committees to craft legislation that expands the federal collection regime.
A substantial number of states do not apply their sample collection statutes retroactively. For instance, many states do not collect from felons who are currently under supervision or incarcerated.
DNA sample collection is a non-punitive identification measure taken for public safety purposes (comparable to fingerprinting).
There is no constitutional problem in giving DNA sample collection provisions fully retroactive applications.
Hence, restrictions on the retroactive application of DNA sample collection to offenders who remain in the system amount to throwing away available evidence that could solve rapes, murders, and other crimes.
Solution #3: The Justice Department is encouraging states to pass legislation to make the sample collection statutes fully retroactive to offenders who remain in custody or under supervision.
The statute governing the national DNA index does not permit the inclusion of all DNA profiles from samples collected under applicable legal authorities.
The statute governing the national DNA index currently authorizes inclusion in the index of DNA profiles of "persons convicted of crimes." 42 U.S.C. 14132(a)(1). This is narrower than the scope of DNA sample collection under existing legal authorities in most U.S. jurisdictions.
For example, most states now collect DNA samples from some categories of adjudicated juvenile delinquents, and some states have authorized DNA sample collection from certain arrestees.
As a result, states cannot enter all the information they collect into the national DNA index because of the wording of the federal database statute. This means that DNA profiles that could be used to solve crimes, such as rapes and murders, are not available nationwide to law enforcement.
Solution #4: The Attorney General looks forward to working with the Chairmen of both the Senate and House Judiciary Committees to craft legislation that will correct this problem by allowing inclusion in the national index of DNA profiles of "other persons, whose DNA samples are collected under applicable legal authorities."