Initiative to Advance Justice Through DNA Technology
The Initiative to Advance Justice Through DNA Technology was announced by President George W. Bush and Attorney General John Ashcroft on March 11, 2003. A compendium of programs which encompass many of the issues that have surrounded the use of DNA technology in the criminal justice system, it is the most comprehensive and ambitious DNA proposal to date.
At its recent meeting in New Orleans, the NDAA Board of Directors passed a policy to strongly endorse the president’s initiative. A copy of the NDAA policy resolution as well as the DNA policy from 2001 can be found on the NDAA Web site. (The 2001 policy can be found under Newsroom, News Releases, 2001 Press Releases. Both items can be found at www.ndaa-apri.org.)
A synopsis of the proposal is offered here. Keep in mind that the funding is for next fiscal year (FY04) which begins in October 2003. Also, no specific legislation to implement the initiative has been introduced.
The President’s Initiative
The president’s initiative proposes $232.6 million in federal funding in FY04 and would continue this level of funding for five years—or a total of over $1 billion.
Cold/Old Cases: This part of the initiative addresses one of the biggest issues facing the criminal justice system today—the substantial backlog of unanalyzed DNA samples and biological evidence from crime scenes, especially in sexual assault and murder cases. This backlog includes casework sample backlogs and convicted offender backlogs.
NDAA Vice President J. Tom Morgan testified concerning the need for testing cold/old cases before the Senate Judiciary Committee last May. In his testimony (see his entire statement on the NDAA Web site), he stated:
Significant increases in resources are needed to enlarge forensic laboratory capacity and expand DNA databases; … No other investment in our criminal justice system will do more to protect the innocent, convict the guilty and reduce human suffering.
The Department of Justice has estimated that there are some 350,000 rape kits and crime scene samples that are untested. There are also between 200,000 and 300,000 convicted felon samples that are untested and another one million samples that have not yet even been collected as required by state and federal law. Compounding this backlog are over 28,000 federal samples that have not been tested.
The president’s proposal supports the idea that the Combined DNA Index System (CODIS) can significantly reduce the number of repeat offenders by taking action to enter the thousands of DNA samples that overwhelmed labs have been unable to test. Time and time again cases have been solved through information retrieved from CODIS, but the current backlog of information has limited the full potential of the system.
The initiative calls for $92.9 million in FY 2004 funding to help alleviate the current backlog of DNA samples for the most serious violent offenses—rapes, murders and kidnappings—and for convicted offender DNA samples that need to be tested. The plan anticipates that this backlog can be eliminated within five years.
Crime Labs: The initiative also recognizes the fact that many crime labs do not have the capacity necessary to analyze DNA samples in a timely fashion. Equipment shortages, outdated information systems and overwhelming case management requirements (administration, testifying) prevent maximizing the use of DNA technology.
This initiative would provide $90.4 million in FY04 funding to further automate and improve the infrastructure of federal, state and local crime labs so they can process DNA cases efficiently and cost-effectively.
Research & Development: The proposal recognizes a need to energize research and development efforts to find new methods to analyze DNA.
The initiative would provide $24.8 million to fund advances in the use of DNA technology in FY04. It also calls for demonstration projects to further study the public safety and law enforcement benefits of fully integrating the use of DNA technology to solve crimes. Finally, the initiative calls for the creation of a National Forensic Science Commission to study advances in all areas of the forensic sciences and to make recommendations to maximize the use of the forensic sciences in the criminal justice system.
Training: Prosecutors and others in the criminal justice system need training to be able to collect and use DNA evidence to solve crimes, prosecute cases and to support victims.
The initiative calls for the attorney general to develop training and provide assistance regarding the collection and use of DNA evidence to police officers, prosecutors, defense attorneys, judges, forensic scientists, medical personnel, victim service providers and probation and parole officers. The initiative provides $17.5 million in FY 2004 to fund these efforts.
Post-conviction Testing: The president’s proposal supports the premise that individuals who were convicted of crimes before DNA testing was available should have access to appropriate post-conviction testing.
Testifying before the House and Senate Judiciary Committees last spring, Paul Logli, a vice president of NDAA articulated the NDAA position:
…DNA testing program should focus only on those cases where identity is an issue and where testing would, assuming exculpatory results, establish the actual innocence of an individual. Such programs should recognize the need for finality in criminal justice proceedings by establishing a limited time period in which cases will be considered and then reviewing those cases in an expedited manner.
DOJ has been tasked to work with Congress to develop legislation that will provide post-conviction DNA testing to federal inmates in appropriate circumstances. This legislation is to represent a balanced approach and should discourage frivolous challenges.
The “trickle down” effect would obviously have an impact on state initiatives in this area. Thus, the administration will also encourage states to develop appropriate procedures for post conviction testing. The president’s initiative calls for the creation of a $5 million grant program to help states defray the costs of post-conviction DNA testing. In order to receive this funding, state programs will be required to meet criteria established by DOJ. These criteria will require that DNA testing be performed by an accredited forensic laboratory and will encourage states to develop plans that ensure prompt DNA testing of persons who may be wrongly convicted and discourage frivolous testing that may cause unnecessary expense and needless harm to crime victims.
Missing Persons: Families of missing persons who are presumed dead face tremendous emotional turmoil when they are unable to learn the fates of their loved ones. This initiative will devote $2 million in FY 2004 to providing education, training and additional support to ensure that DNA forensic technology is used to its full potential to identify human remains to aid in solving missing persons cases.
Department of Justice Efforts
In addition to the president’s initiative, the DOJ has set out a series of legislative efforts that it will pursue to enhance the use of DNA in the criminal justice system.
Convicted Felons: To take full advantage of the ability of DNA technology to solve crimes and protect the innocent, DOJ will encourage states to pass legislation that will help states expand collection to include all convicted offenders. NDAA’s policy on DNA supports this effort.
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.
Retroactive Collection: A 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.
DOJ believes that DNA sample collection is a non-punitive identification measure taken for public safety purposes (comparable to fingerprinting), that there is no constitutional problem in giving DNA sample collection provisions retroactive application; and that restrictions on the retroactive application of DNA sample collection does not maximize the ability to identify offenders who remain in the system.
DOJ will encourage states to pass legislation to make the sample collection statutes fully retroactive to offenders who remain in custody or under supervision.
NDAA policy does not specifically address retroactive application of testing requirements. It is anticipated that NDAA’s Science and Technology Committee will be reviewing NDAA policy at the July meeting with an eye toward adding this concept.
Comprehensive CODIS: The statute governing the national DNA index (CODIS) does not permit adding DNA profiles from samples collected under some states’ laws.
CODIS can only include DNA profiles of “persons convicted of crimes”—a more narrow scope of collection then under existing law in most states. These states now collect DNA samples from some categories of adjudicated juvenile delinquents, and some states have authorized DNA sample collection from certain arrestees. Because of this, 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.
DOJ will seek legislative changes to allow inclusion in the national index of DNA profiles of “other persons, whose DNA samples are collected under applicable legal authorities.”
NDAA policy on DNA supports collection of DNA samples from arrestees but does not consider juvenile samples; NDAA policy on juvenile justice does, however, support the collection and retention of DNA samples from juveniles.
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