SPEAKERS       CONTENTS       INSERTS    Tables

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65–302

2000
VIOLENT OFFENDER DNA IDENTIFICATION ACT OF 1999, DNA BACKLOG ELIMINATION ACT AND CONVICTED OFFENDER DNA INDEX SYSTEM SUPPORT ACT

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME

OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

ON
H.R. 2810, H.R. 3087 and H.R. 3375

MARCH 23, 2000

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Serial No. 140

Printed for the use of the Committee on the Judiciary

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
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MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana

JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York

THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director

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Subcommittee on Crime
BILL McCOLLUM, Florida, Chairman
STEVE CHABOT, Ohio
BOB BARR, Georgia
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
CHARLES T. CANADY, Florida
ASA HUTCHINSON, Arkansas

ROBERT C. SCOTT, Virginia
MARTIN T. MEEHAN, Massachusetts
STEVEN R. ROTHMAN, New Jersey
ANTHONY D. WEINER, New York
SHEILA JACKSON LEE, Texas

GLENN R. SCHMITT, Chief Counsel
DANIEL J. BRYANT, Chief Counsel
RICK FILKINS, Counsel
CARL THORSEN, Counsel
BOBBY VASSAR, Minority Counsel

C O N T E N T S

HEARING DATE
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    March 23, 2000

TEXT OF BILLS

    H.R. 2810
    H.R. 3087
    H.R. 3375

OPENING STATEMENT

    Chabot, Hon. Steve, a Representative in Congress From the State of Ohio, and presiding chairman, Subcommittee on Crime

WITNESSES

    Adams, Dwight E., Deputy Assistant Director, Forensic Analysis Branch, Federal Bureau of Investigation, Washington, DC

    Bishop, Hon. Sanford D., Jr., a Representative in Congress From the State of Georgia

    Boyd, David G., Director, Office of Science and Technology, National Institute of Justice, U.S. Department of Justice, Washington, DC

    Coffman, David, crime laboratory analyst supervisor, Investigation and Forensics Program Area, Florida Department of Law Enforcement, Tallahassee, FL
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    Ferrara, Paul B., director, Division of Forensic Science, Commonwealth of Virginia, Department of Criminal Justice Services, Richmond, VA

    Gilman, Hon. Benjamin A., a Representative in Congress From the State of New York

    Greene, Jane Siegel, Esq., executive director, The Innocence Project, New York, NY

    Kennedy, Hon. Patrick J., a Representative in Congress From the State of Rhode Island

    Sheppo, Michael G., bureau chief of region one, Division of Forensic Science Command, Illinois State Police, Springfield, IL

    Steinhardt, Barry, Esq., associate director, American Civil Liberties Union, Washington, DC

    Weiner, Hon. Anthony D., a Representative in Congress From the State of New York

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Adams, Dwight E., Deputy Assistant Director, Forensic Analysis Branch, Federal Bureau of Investigation, Washington, DC: Prepared statement
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    Boyd, David G., Director, Office of Science and Technology, National Institute of Justice, U.S. Department of Justice, Washington, DC: Prepared statement

    Coffman, David, crime laboratory analyst supervisor, Investigation and Forensics Program Area, Florida Department of Law Enforcement, Tallahassee, FL: Prepared statement

    Ferrara, Paul B., director, Division of Forensic Science, Commonwealth of Virginia, Department of Criminal Justice Services, Richmond, VA: Prepared statement

    Gilman, Hon. Benjamin A., a Representative in Congress From the State of New York: Prepared statement

    Kennedy, Hon. Patrick J., a Representative in Congress From the State of Rhode Island: Prepared statement

    Sheppo, Michael G., bureau chief of region one, Division of Forensic Science Command, Illinois State Police, Springfield, IL: Prepared statement

    Steinhardt, Barry, Esq., associate director, American Civil Liberties Union, Washington, DC: Prepared statement

    Weiner, Hon. Anthony D., a Representative in Congress From the State of New York: Prepared statement
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APPENDIX
    Material submitted for the record

VIOLENT OFFENDER DNA IDENTIFICATION ACT OF 1999, DNA BACKLOG ELIMINATION ACT AND CONVICTED OFFENDER DNA INDEX SYSTEM SUPPORT ACT

THURSDAY, MARCH 23, 2000

House of Representatives,
Subcommittee on Crime,
Committee on the Judiciary,
Washington, DC.

    The subcommittee met, pursuant to notice, at 1:37 p.m., in Room 2226, Rayburn House Office Building, Hon. Steve Chabot presiding.

    Present: Representatives Steve Chabot, George W. Gekas, Lamar S. Smith, Charles T. Canady, Robert C. Scott, and Anthony D. Weiner.

    Also Present: Representative Rod R. Blagojevich.

    Staff Present: Glenn R. Schmitt, chief counsel; Rick Filkins, counsel; Bobby Vassar, minority counsel; Veronica L. Eligan, staff assistant.

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OPENING STATEMENT OF PRESIDING CHAIRMAN CHABOT

    Mr. CHABOT. This hearing of the subcommittee will come to order.

    I am Congressman Steve Chabot. Chairman McCollum is unable to be here this afternoon, so I will be chairing the hearing.

    Today the Subcommittee on Crime will consider three bills that address a growing problem in an important area—the increasing backlog of DNA samples sitting in State laboratories waiting to be analyzed. I am sure that everyone here today appreciates the importance that DNA analysis plays in solving crimes.

    As we all know, DNA is often used to prove the guilt or innocence of a suspect, and DNA is being used more frequently to prove the innocence of persons wrongly imprisoned prior to the development of this technology. More recently, DNA is being used to link together crimes that up to that point did not appear to be connected and to also link known offenders to crimes for which there had been no suspects.

    All 50 States now require some or all of their convicted offenders to provide DNA samples to the State. In 1994, Congress enacted legislation that gave the FBI the authority to create a national database of these DNA samples. The Combined DNA Index System, or CODIS as it is known, has grown dramatically, to the point that today there are almost 400,000 samples on file of known State offenders. But there are also over 350,000 more samples that have been collected but have yet to be entered into this system by the States. And because of a shortcoming in the 1994 Federal law, this system does not include samples from persons who have been convicted of Federal crimes, crimes in the District of Columbia, or crimes while serving in the military. This hole in the law must be filled.
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    Just as important, while there are over 30,000 samples taken from crime scenes and victims currently in CODIS, there are over 15,000 samples that have yet to be included in the system. And this number does not reflect the even larger backlog in the States of unanalyzed crime scene evidence in cases where there are known suspects. While this evidence may never need to be loaded into CODIS, it is nevertheless important that it be analyzed promptly so that the guilt or innocence of the accused in those cases can be quickly determined. One reason for today's hearing is to better understand why so many of these samples remain sitting on the shelves and what role the Federal Government can do to help States fix this problem.

    During our hearing, we will consider three bills aimed at addressing this problem—H.R. 2810, the ''Violent Offender DNA Identification Act of 1999,'' introduced by Representative Patrick Kennedy—and myself—H.R. 3087, the ''DNA Backlog Elimination Act,'' introduced by Representative Anthony Weiner, a member of the full Judiciary Committee; and H.R. 3375, the 'Convicted Offender DNA Index System Support Act,' introduced by Representative Ben Gilman.

    I am pleased that each of the sponsors of these bills has agreed to be with us today to explain their bill, and I welcome each of them. I also welcome the other witnesses who will testify here today. We are fortunate to be hearing from representatives of the Federal and State governments concerning this problem and how it can be fixed. We will also hear from groups who advocate on behalf of the privacy rights of citizens and for the greater use of DNA evidence to prove the innocence of convicted persons.

    That is obviously the statement on behalf of Chairman McCollum.
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    I welcome all the witnesses here today, and at this time, I will defer to the ranking member of the committee, Representative Scott from Virginia, if he has an opening statements.

    [The bills, H.R. 2810, H.R. 3087 and H.R. 3375, follow:]

106TH CONGRESS
    1ST SESSION
  H. R. 2810
To facilitate the exchange by law enforcement agencies of DNA identification information relating to violent offenders, and for other purposes.
     
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 8, 1999
Mr. KENNEDY of Rhode Island (for himself, Mr. CHABOT, and Mr. VISCLOSKY) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
     
A BILL
To facilitate the exchange by law enforcement agencies of DNA identification information relating to violent offenders, and for other purposes.

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    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
    This Act may be cited as the ''Violent Offender DNA Identification Act of 1999''.
SEC. 2. ELIMINATION OF CONVICTED OFFENDER DNA BACKLOG.
    (a) DEVELOPMENT OF PLAN.—
    (1) IN GENERAL.—Not later than 45 days after the date of enactment of this Act, the Director of the Federal Bureau of Investigation, in coordination with the Assistant Attorney General of the Office of Justice Programs at the Department of Justice, and after consultation with representatives of State and local forensic laboratories, shall develop a voluntary plan to assist State and local forensic laboratories in performing DNA analyses of DNA samples collected from convicted offenders.
    (2) OBJECTIVE.—The objective of the plan developed under paragraph (1) shall be to effectively eliminate the backlog of convicted offender DNA samples awaiting analysis in State or local forensic laboratory storage, including samples that need to be reanalyzed using upgraded methods, in an efficient, expeditious manner that will provide for their entry into the Combined DNA Indexing System (CODIS).
    (b) PLAN CONDITIONS.—The plan developed under subsection (a) shall require that—
    (1) each laboratory performing DNA analyses satisfy quality assurance standards and utilize state-of-the-art testing methods, as set forth by the Director of the Federal Bureau of Investigation, in coordination with the Assistant Attorney General of the Office of Justice Programs of the Department of Justice;
    (2) each DNA sample collected and analyzed be accessible only—
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    (A) to criminal justice agencies for law enforcement identification purposes;
    (B) in judicial proceedings, if otherwise admissible pursuant to applicable statutes or rules;
    (C) for criminal defense purposes, to a defendant, who shall have access to samples and analyses performed in connection with the case in which such defendant is charged;
or
    (D) for validation studies and protocol development purposes, if personally identifiable information is removed;
and
    (3) as a condition of receiving any funds under this section, a State in which a participating forensic laboratory is located must provide for automatic removal of DNA analysis records when the underlying conviction for the qualifying offense is vitiated or expunged by appeal or otherwise.
    (c) IMPLEMENTATION OF PLAN.—Subject to the availability of appropriations under subsection (d), the Director of the Federal Bureau of Investigation, in coordination with the Assistant Attorney General of the Office of Justice Programs at the Department of Justice, shall implement the plan developed pursuant to subsection (a) with State and local forensic laboratories that elect to participate.
    (d) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Department of Justice to carry out this section $15,000,000 for each of fiscal years 2000 and 2001.
SEC. 3. DNA IDENTIFICATION OF FEDERAL, DISTRICT OF COLUMBIA, AND MILITARY VIOLENT OFFENDERS.
    (a) EXPANSION OF DNA IDENTIFICATION INDEX.—Section 811(a)(2) of the Antiterrorism and Effective Death Penalty Act of 1996 (28 U.S.C. 531 note) is amended to read as follows:
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    ''(2) the Director of the Federal Bureau of Investigation shall expand the combined DNA Identification System (CODIS) to include information on DNA identification records and analyses related to criminal offenses under Federal law, the Uniform Code of Military Justice, and the District of Columbia Code, in accordance with section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132).''.
    (b) INDEX TO FACILITATE LAW ENFORCEMENT EXCHANGE OF DNA IDENTIFICATION INFORMATION.—Section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132) is amended—
    (1) in subsection (a)(1), by striking ''persons convicted of crimes'' and inserting ''individuals convicted of criminal offenses, including qualifying offenses (as defined in subsection (d)(1))'';
    (2) in subsection (b)(2), by striking '', at regular intervals of not to exceed 180 days,'' and inserting ''semiannual''; and
    (3) by adding at the end the following:
    ''(d) INCLUSION OF DNA INFORMATION RELATING TO VIOLENT OFFENDERS.—
    ''(1) DEFINITIONS.—In this subsection—
    ''(A) the term 'serious violent felony' has the meaning given such term in section 3559(c)(1)(F) of title 18, United States Code and also includes offenses under section 2123(a), 2251, or 2251A of such title;
    ''(B) the term 'burglary' means an offense under chapter 103 of title 18, United States

Code, or any State offense in the nature of burglary; and
    ''(C) the term 'qualifying offense' means a criminal offense included on the list established by the Director of the Federal Bureau of Investigation under paragraph (2)(A)(i).
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    ''(2) REGULATIONS.—
    ''(A) IN GENERAL.—Not later than 90 days after the date of enactment of this subsection, and at the discretion of the Director thereafter, the Director of the Federal Bureau of Investigation, in consultation with the Director of the Bureau of Prisons, the Director of the Court Services and Offender Supervision Agency for the District of Columbia or the Trustee appointed under section 11232(a) of the Balanced Budget Act of 1997 (as appropriate), and the Chief of Police of the Metropolitan Police Department of the District of Columbia, shall by regulation establish—
    ''(i) a list of qualifying offenses; and
    ''(ii) standards and procedures for—
    ''(I) the analysis of DNA samples collected from individuals convicted of a qualifying offense;
    ''(II) the inclusion in the index established by this section of the DNA identification records and DNA analyses relating to the DNA samples described in subclause (I); and
    ''(III) the automatic removal of DNA identification records and DNA analyses described in subclause (II) from the index established by this section in any circumstance in which the underlying conviction for the qualifying offense is vitiated or expunged by appeal or otherwise.
    ''(B) OFFENSES INCLUDED.—The list established under subparagraph (A)(i) shall include—
    ''(i) each criminal offense under Federal law that constitutes a serious violent felony or burglary; and
    ''(ii) each criminal offense under the District of Columbia Code that would, if committed in the special maritime and territorial jurisdiction of the United States, constitute a serious violent felony or burglary.
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    ''(3) FEDERAL OFFENDERS.—
    ''(A) COLLECTION OF SAMPLES FROM FEDERAL PRISONERS.—Beginning 180 days after the date of enactment of this subsection, the Director of the Bureau of Prisons shall collect a DNA sample from each individual in the custody of the Bureau of Prisons who has been convicted of a qualifying offense.
    ''(B) COLLECTION OF SAMPLES FROM FEDERAL OFFENDERS ON SUPERVISED RELEASE, PAROLE, OR PROBATION.—Beginning 180 days after the date of enactment of this subsection, the agency responsible for the supervision under Federal law of an individual on supervised release, parole, or probation (other than an individual described in paragraph (4)(B)(i)) shall collect a DNA sample from each individual who has been convicted of a qualifying offense.
    ''(4) DISTRICT OF COLUMBIA OFFENDERS.—
    ''(A) OFFENDERS IN CUSTODY OF DISTRICT OF COLUMBIA.—
    ''(i) IN GENERAL.—The Government of the District of Columbia may collect a DNA sample from each individual in the custody of the District of Columbia as a result of a conviction for a qualifying offense.
    ''(ii) AUTOMATIC REMOVAL.—The DNA identification records described in clause (i) shall be automatically removed when the underlying conviction for the qualifying offense is vitiated or expunged by appeal or otherwise.
    ''(iii) DEFINITION.—In this subparagraph, the term 'individual in the custody of the District of Columbia'—
    ''(I) includes any individual in the custody of, or under supervision by, any agency of the Government of the District of Columbia;
and
    ''(II) does not include an individual who is under the supervision of the Director of the Court Services and Offender Supervision Agency for the District of Columbia or the Trustee appointed under section 11232(a) of the Balanced Budget Act of 1997.
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    ''(B) OFFENDERS ON SUPERVISED RELEASE, PROBATION, OR PAROLE.—Beginning 180 days after the date of enactment of this subsection, the Director of the Court Services and Offender Supervision Agency for the District of Columbia, or the Trustee appointed under section 11232(a) of the Balanced Budget Act of 1997, as appropriate, shall collect a DNA sample from each individual under the supervision of the Agency or Trustee, respectively, who is on supervised release, parole, or probation who has been convicted of a qualifying offense.
    ''(5) WAIVER; COLLECTION PROCEDURES.—Notwithstanding any other provision of this subsection, a person or agency responsible for the collection of DNA samples under this subsection may—
    ''(A) waive the collection of a sample from an individual under this subsection if another person or agency has collected such a sample from the individual under this subsection or subsection (e); and
    ''(B) use or authorize the use of such means as are necessary to restrain and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample.

    ''(e) INCLUSION OF DNA INFORMATION RELATING TO VIOLENT MILITARY OFFENDERS.—
    ''(1) IN GENERAL.—Not later than 120 days after the date of enactment of this subsection, the Secretary of Defense shall prescribe regulations that—
    ''(A) specify categories of conduct punishable under the Uniform Code of Military Justice (referred to in this subsection as 'qualifying military offenses') that are comparable to qualifying offenses (as defined in subsection (d)(1)); and
    ''(B) set forth standards and procedures for—
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    ''(i) the analysis of DNA samples collected from individuals convicted of a qualifying military offense;
    ''(ii) the inclusion in the index established by this section of the DNA identification records and DNA analyses relating to the DNA samples described in clause (i); and
    ''(iii) the automatic removal of DNA identification records and DNA analyses described in clause (ii) from the index established by this section in any circumstance in which the underlying conviction for the qualifying military offense is vitiated or expunged by appeal or otherwise.
    ''(2) COLLECTION OF SAMPLES.—Beginning 180 days after the date of enactment of this subsection, the Secretary of Defense shall collect a DNA sample from each individual under the jurisdiction of the Secretary of a military department who has been convicted of a qualifying military offense.
    ''(3) WAIVER; COLLECTION PROCEDURES.—Notwithstanding any other provision of this subsection, the Secretary of Defense may—
    ''(A) waive the collection of a sample from an individual under this subsection if another person or agency has collected such a sample from the individual under subsection (d); and
    ''(B) use or authorize the use of such means as are necessary to restrain and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample.
    ''(f) CRIMINAL PENALTY.
    ''(1) IN GENERAL.—An individual from whom the collection of a DNA sample is required under subsection (d) who fails to cooperate in the collection of that sample shall be—
    ''(A) guilty of a class A misdemeanor; and
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    ''(B) punished in accordance with title 18, United States Code.
    ''(2) MILITARY OFFENDERS.—An individual from whom the collection of a DNA sample is required under subsection (e) who fails to cooperate in the collection of that sample may be punished as a court martial may direct as a violation of the Uniform Code of Military Justice.
    ''(g) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated—
    ''(1) to the Department of Justice to carry out subsection (d) of this section (including to reimburse the Federal judiciary for any reasonable costs incurred in implementing such subsection, as determined by the Attorney General) and section 3(d) of the Violent Offender DNA Identification Act of 1999—
    ''(A) $6,600,000 for fiscal year 2000; and
    ''(B) such sums as may be necessary for each of fiscal years 2001 through 2004;
    ''(2) to the Court Services and Offender Supervision Agency for the District of Columbia or the Trustee appointed under section 11232(a) of the Balanced Budget Act of 1997 (as appropriate), such sums as may be necessary for each of fiscal years 2000 through 2004; and
    ''(3) to the Department of Defense to carry out subsection (e)—
    ''(A) $600,000 for fiscal year 2000; and
    ''(B) $300,000 for each of fiscal years 2001 through 2004.''.
    (c) CONDITIONS OF RELEASE.—
    (1) CONDITIONS OF PROBATION.—Section 3563(a) of title 18, United States Code, is amended—
    (A) in paragraph (7), by striking ''and'' at the end;
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    (B) in paragraph (8), by striking the period at the end and inserting ''; and''; and
    (C) by inserting after paragraph (8) the following:
    ''(9) that the defendant cooperate in the collection of a DNA sample from the defendant if the collection of such a sample is required pursuant to section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132).''.
    (2) CONDITIONS OF SUPERVISED RELEASE.—Section 3583(d) of title 18, United States Code, is amended by inserting before ''The court shall also order'' the following: ''The court shall order, as an explicit condition of supervised release, that the defendant cooperate in the collection of a DNA sample from the defendant, if the collection of such a sample is required pursuant to section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132).''.
    (3) CONDITIONS OF RELEASE GENERALLY.—If the collection of a DNA sample from an individual on probation, parole, or supervised release (including an individual on parole pursuant to chapter 311 of title 18, United States Code, as in effect on October 30, 1997) is required pursuant to section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132), and the sample has not otherwise been collected, the individual shall cooperate in the collection of a DNA sample as a condition of that probation, parole, or supervised release.

    (d) REPORT AND EVALUATION.—Not later than one year after the date of enactment of this Act, the Attorney General, acting through the Assistant Attorney General for the Office of Justice Programs of the Department of Justice and the Director of the Federal Bureau of Investigation, shall—
    (1) conduct an evaluation to—
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    (A) identify criminal offenses, including offenses other than qualifying offenses (as defined in section 210304(d)(1) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132(d)(1)), as added by this section) that, if serving as a basis for the mandatory collection of a DNA sample under section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132) or under State law, are likely to yield DNA matches, and the relative degree of such likelihood with respect to each such offense; and
    (B) determine the number of investigations aided (including the number of suspects cleared), and the rates of prosecution and conviction of suspects identified through DNA matching; and
    (2) submit to Congress a report describing the results of the evaluation under paragraph (1).
    (e) TECHNICAL AND CONFORMING AMENDMENTS.—
    (1) DRUG CONTROL AND SYSTEM IMPROVEMENT GRANTS.—Section 503(a)(12)(C) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3753(a)(12)(C)) is amended by striking '', at regular intervals of not to exceed 180 days,'' and inserting ''semiannual''.
    (2) DNA IDENTIFICATION GRANTS.—Section 2403(3) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796kk–2(3)) is amended by striking '', at regular intervals not exceeding 180 days,'' and inserting ''semiannual''.
    (3) FEDERAL BUREAU OF INVESTIGATION.—Section 210305(a)(1)(A) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14133(a)(1)(A)) is amended by striking '', at regular intervals of not to exceed 180 days,'' and inserting ''semiannual''.

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106TH CONGRESS
    1ST SESSION
  H. R. 3087
To provide assistance to State and local forensic laboratories in analyzing DNA samples from convicted offenders, and for other purposes.
     
IN THE HOUSE OF REPRESENTATIVES
OCTOBER 14, 1999
Mr. WEINER (for himself, Mr. FORBES, Ms. SLAUGHTER, Mr. WALSH, Mr. SWEENEY, Mrs. MCCARTHY of New York, Mrs. LOWEY, and Mr. NADLER) introduced the following bill; which was referred to the Committee on the Judiciary
     
A BILL
To provide assistance to State and local forensic laboratories in analyzing DNA samples from convicted offenders, and for other purposes.
    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.
    This Act may be cited as the ''DNA Backlog Elimination Act''.
SEC. 2. ELIMINATION OF CONVICTED OFFENDER DNA BACKLOG.
    (a) DEVELOPMENT OF PLAN.—
    (1) IN GENERAL.—Not later than 45 days after the date of the enactment of this Act, the Director of the Federal Bureau of Investigation, in coordination with the Assistant Attorney General of the Office of Justice Programs of the Department of Justice, and after consultation with representatives of State and local forensic laboratories, shall develop a voluntary plan to assist State and local forensic laboratories in performing DNA analyses of DNA samples collected from convicted offenders and in analyzing all casework evidence for unsolved crimes.
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    (2) OBJECTIVE.—The objective of the plan developed under paragraph (1) shall be to effectively eliminate the backlog of convicted offender DNA samples awaiting analysis in State or local forensic laboratory storage, including samples that need to be reanalyzed using upgraded methods, and to analyze all casework evidence for unsolved crimes in an efficient, expeditious manner that will provide for their entry into the Combined DNA Indexing System (CODIS).
    (b) PLAN CONDITIONS.—The plan developed under subsection (a) shall—
    (1) require that each laboratory performing DNA analyses satisfy quality assurance standards and utilize state-of-the-art testing methods, as set forth by the Director of the Federal Bureau of Investigation, in coordination with the Assistant Attorney General of the Office of Justice Programs of the Department of Justice; and
    (2) require that each DNA sample collected and analyzed be accessible only—
    (A) to criminal justice agencies for law enforcement identification purposes;
    (B) in judicial proceedings, if otherwise admissible pursuant to applicable statutes or rules;
    (C) for criminal defense purposes, to a defendant, who shall have access to samples and analyses performed in connection with the case in which such defendant is charged; or
    (D) if personally identifiable information is removed, for a population statistics database, for identification research and protocol development purposes, or for quality control purposes.
    (c) IMPLEMENTATION OF PLAN.—
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    (1) IN GENERAL.—Subject to the availability of appropriations under subsection (d), the Director of the Federal Bureau of Investigation, in coordination with the Assistant Attorney General of the Office of Justice Programs of the Department of Justice, shall implement the plan developed pursuant to subsection (a) with State and local forensic laboratories that elect to participate.
    (2) CONSIDERATION OF EACH BACKLOG.—In determining the extent of assistance to be provided to State and local forensic laboratories under this section, the Director of the Federal Bureau of Investigation, in coordination with the Assistant Attorney General of the Office of Justice Programs of the Department of Justice, shall consider the quantity of each State and local forensic laboratory's backlog of convicted offender DNA samples awaiting analysis, including samples that need to be reanalyzed using upgraded methods, and the quantity of casework evidence for unsolved crimes.
    (d) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Department of Justice to carry out this section $30,000,000 for each of fiscal years 2001 and 2002.

106TH CONGRESS
    1ST SESSION
  H. R. 3375
To facilitate the exchange by law enforcement agencies of DNA identification information relating to violent offenders, and for other purposes.
     
IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 16, 1999
Mr. GILMAN (for himself, Mr. STUPAK, and Mr. RAMSTAD) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
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A BILL
To facilitate the exchange by law enforcement agencies of DNA identification information relating to violent offenders, and for other purposes.
    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
    This Act may be cited as the ''Convicted Offender DNA Index System Support Act''.
SEC. 2. ELIMINATION OF CONVICTED OFFENDER DNA BACKLOG.
    (a) DEVELOPMENT OF PLAN.—
    (1) IN GENERAL.—Not later than 45 days after the date of the enactment of this Act, the Director of the Federal Bureau of Investigation, after consultation with representatives of the States and of appropriate Federal agencies, shall develop a plan to assist States in performing DNA analyses of DNA samples collected from convicted offenders.
    (2) OBJECTIVE.—The objective of the plan developed under paragraph (1) shall be to effectively eliminate the backlog of convicted offender DNA samples awaiting analysis in State or local forensic laboratory storage, including samples that need to be reanalyzed using upgraded methods, in an efficient, expeditious manner that will provide for the entry of those analyses into the combined DNA Indexing System (CODIS).
    (3) PREFERENCE IN FUNDING.—In providing assistance to States under the plan, the Director shall give a preference in assistance to those States that have developed a comprehensive program for the DNA analysis of crime scene evidence in casework for which there are no suspects.
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    (b) PLAN CONDITIONS.—The plan developed under subsection (a) shall require the following:
    (1) That the Director of the Federal Bureau Investigation—
    (A) establish requirements for the performance of DNA analyses by private forensic laboratories, including quality assurance standards, state-of-the-art testing methods, and other requirements that the Director considers appropriate; and
    (B) determine which private forensic laboratories satisfy the requirements established pursuant to subparagraph (A).
    (2) That a laboratory may perform DNA analyses under the plan only if it is a private forensic laboratory determined under paragraph (1)(B) to satisfy the requirements established pursuant to paragraph (1)(A).
    (3) That the Director of the Federal Bureau of Investigation provide assistance under the plan only pursuant to arrangements with private forensic laboratories that have been determined under paragraph (1)(B) to satisfy the requirements established pursuant to paragraph (1)(A).
    (4) That under each such arrangement—
    (A) the Director shall determine, for each State to which assistance is provided under the plan, the quantity of convicted offender DNA samples awaiting analysis in that State on which the laboratory shall perform DNA analysis;
    (B) the laboratory shall perform those DNA analyses; and
    (C) the Director shall, on behalf of that State, provide funding to the laboratory to cover the costs of those DNA analyses.
    (5) That each DNA sample collected and analyzed under the plan be accessible only—
    (A) to criminal justice agencies for law enforcement identification purposes;
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    (B) in judicial proceedings, if otherwise admissible pursuant to applicable statutes or rules;
    (C) for criminal defense purposes, to a defendant, who shall have access to samples and analyses performed in connection with the case in which such defendant is charged; or
    (D) for validation studies and protocol development purposes, if personally identifiable information is removed.
    (c) IMPLEMENTATION OF PLAN.—Subject to the availability of appropriations under subsection (d), the Director of the Federal Bureau of Investigation shall implement the plan developed pursuant to subsection (a) with States that elect to participate.
    (d) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Director of the Federal Bureau of Investigation to carry out this section $15,000,000 for each of fiscal years 2000 and 2001.
SEC. 3. ELIMINATION OF STATE AND LOCAL UNSOLVED CASEWORK DNA BACKLOG.
    (a) DEVELOPMENT OF PLAN.—
    (1) IN GENERAL.—Not later than 45 days after the date of the enactment of this Act, the Attorney General, in coordination with the Director of the Federal Bureau of Investigation and after consultation with representatives of the States and of appropriate Federal agencies, shall develop a plan to assist States in performing DNA analyses of crime scene evidence in casework for which there are no suspects.
    (2) OBJECTIVE.—The objective of the plan developed under paragraph (1) shall be to effectively eliminate the backlog of crime scene evidence awaiting DNA analysis in State or local forensic laboratory storage, including evidence that needs to be reanalyzed using upgraded methods, in an efficient, expeditious manner that will provide for the entry of those analyses into the combined DNA Indexing System (CODIS).
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    (3) PREFERENCE IN FUNDING.—In providing assistance to States under the plan, the Attorney General shall give a preference in assistance to those States that have developed a comprehensive program for the DNA analysis of crime scene evidence in casework for which there are no suspects.
    (b) PLAN CONDITIONS.—The plan developed under subsection (a) shall require the following:
    (1) That the Attorney General, in coordination with the Director of the Federal Bureau of Investigation, establish—
    (A) requirements for the performance of DNA analyses by State and local forensic laboratories, including quality assurance standards issued by the Director, state-of-the-art testing methods, and other requirements that the Director considers appropriate;
    (B) procedures under which a State may apply for assistance under the plan; and

    (C) guidelines for the use by a State of any assistance under the plan.
    (2) That the Attorney General provide assistance under the plan only by making grants to a State, to be used by the chief executive officer of the State, in conjunction with units of local government, other States, or any combination thereof, to carry out a project consistent with the plan.
    (3) That the State, as a condition of receiving assistance under the plan, shall—
    (A) use the assistance only for the DNA analysis of crime scene evidence in casework for which there are no suspects; and
    (B) provide assurances that it will submit a report to the Attorney General containing a summary of the activities carried out using the assistance provided.
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    (4) That the Federal share of assistance provided under the plan with respect to a project may not exceed 75 percent of the total costs of the project.
    (5) That each DNA sample collected and analyzed under the plan be accessible only—
    (A) to criminal justice agencies for law enforcement identification purposes;
    (B) in judicial proceedings, if otherwise admissible pursuant to applicable statutes or rules;
    (C) for criminal defense purposes, to a defendant, who shall have access to samples and analyses performed in connection with the case in which such defendant is charged; or
    (D) for validation studies and protocol development purposes, if personally identifiable information is removed.
    (c) IMPLEMENTATION OF PLAN.—Subject to the availability of appropriations under subsection (d), the Attorney General shall implement the plan developed pursuant to subsection (a).
    (d) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Attorney General to carry out this section $24,500,000 for each of fiscal years 2000 and 2001.
SEC. 4. ELIMINATION OF FBI UNSOLVED CASEWORK DNA BACKLOG.
    (a) DEVELOPMENT OF PLAN.—Not later than 45 days after the date of the enactment of this Act, the Director of the Federal Bureau of Investigation shall develop a plan to effectively eliminate the backlog of crime scene evidence awaiting DNA analysis in forensic laboratory storage of the Bureau, including evidence that needs to be reanalyzed using upgraded methods, in an efficient, expeditious manner that will provide for the entry of those analyses into the combined DNA Indexing System (CODIS).
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    (b) CONDITION OF PLAN.—The plan developed under subsection (a) shall require that each DNA sample collected and analyzed under the plan be accessible only—
    (1) to criminal justice agencies for law enforcement identification purposes;
    (2) in judicial proceedings, if otherwise admissible pursuant to applicable statutes or rules;
    (3) for criminal defense purposes, to a defendant, who shall have access to samples and analyses performed in connection with the case in which such defendant is charged; or
    (4) for validation studies and protocol development purposes, if personally identifiable information is removed.
    (c) IMPLEMENTATION OF PLAN.—Subject to the availability of appropriations under subsection (d), the Director of the Federal Bureau of Investigation shall implement the plan developed pursuant to subsection (a).
    (d) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Director of the Federal Bureau of Investigation to carry out this section $500,000 for fiscal year 2000, to remain available until expended.
SEC. 5. MISSING PERSONS DATABASE.
    (a) IN GENERAL.—The Director of the Federal Bureau of Investigation may expand the combined DNA Indexing System (CODIS) to include information on missing persons, including analyses of DNA samples voluntarily contributed from relatives of missing persons.
    (b) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Director of the Federal Bureau of Investigation to carry out this section $2,835,000 for fiscal year 2000, to remain available until expended.
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SEC. 6. DNA IDENTIFICATION OF FEDERAL, DISTRICT OF COLUMBIA, AND MILITARY VIOLENT OFFENDERS.
    (a) EXPANSION OF DNA IDENTIFICATION INDEX.—Section 811(a)(2) of the Antiterrorism and Effective Death Penalty Act of 1996 (28 U.S.C. 531 note) is amended to read as follows:
    ''(2) the Director of the Federal Bureau of Investigation shall expand the combined DNA Identification System (CODIS) to include information on DNA identification records and analyses related to criminal offenses and acts of juvenile delinquency under Federal law, the Uniform Code of Military Justice, and the District of Columbia Code, in accordance with section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132).''.
    (b) INDEX TO FACILITATE LAW ENFORCEMENT EXCHANGE OF DNA IDENTIFICATION INFORMATION.—Section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132) is amended—
    (1) in subsection (a)(1), by striking ''persons convicted of crimes'' and inserting ''individuals convicted of criminal offenses or adjudicated delinquent for acts of juvenile delinquency, including qualifying offenses (as defined in subsection (d)(1))'';
    (2) in subsection (a)(2), by striking ''and'';
    (3) in subsection (a)(3), by striking the period and inserting ''; and'';
    (4) by adding at the end of subsection (a) the following new paragraph:
    ''(4) analyses of DNA samples voluntarily contributed from relatives of missing persons.'';
    (5) in subsection (b)(2), by striking '', at regular intervals of not to exceed 180 days,'' and inserting ''semiannual''; and

    (6) by adding at the end the following:
    ''(d) INCLUSION OF DNA INFORMATION RELATING TO VIOLENT OFFENDERS.—
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    ''(1) DEFINITIONS.—In this subsection—
    ''(A) the term 'crime of violence' has the meaning given such term in section 924(c)(3) of title 18, United States Code; and
    ''(B) the term 'qualifying offense' means a criminal offense or act of juvenile delinquency included on the list established by the Director of the Federal Bureau of Investigation under paragraph (2)(A)(i).
    ''(2) REGULATIONS.—
    ''(A) IN GENERAL.—Not later than 90 days after the date of enactment of this subsection, and at the discretion of the Director thereafter, the Director of the Federal Bureau of Investigation, in consultation with the Director of the Bureau of Prisons, the Director of the Court Services and Offender Supervision Agency for the District of Columbia or the Trustee appointed under section 11232(a) of the Balanced Budget Act of 1997 (as appropriate), and the Chief of Police of the Metropolitan Police Department of the District of Columbia, shall by regulation establish—
    ''(i) a list of qualifying offenses; and
    ''(ii) standards and procedures for—
    ''(I) the analysis of DNA samples collected from individuals convicted of or adjudicated delinquent for a qualifying offense;
    ''(II) the inclusion in the index established by this section of the DNA identification records and DNA analyses relating to the DNA samples described in subclause (I); and
    ''(III) the expungement of DNA identification records and DNA analyses described in subclause (II) from the index established by this section in any circumstance in which the underlying conviction or adjudication for the qualifying offense has been reversed or expunged.
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    ''(B) OFFENSES INCLUDED.—The list established under subparagraph (A)(i) shall include—
    ''(i) each criminal offense or act of juvenile delinquency under Federal law that—
    ''(I) constitutes a crime of violence; or
    ''(II) in the case of an act of juvenile delinquency, would, if committed by an adult, constitute a crime of violence; and
    ''(ii) each criminal offense under the District of Columbia Code that would, if committed in the special maritime and territorial jurisdiction of the United States, constitute a crime of violence.
    ''(3) FEDERAL OFFENDERS.—
    ''(A) COLLECTION OF SAMPLES FROM FEDERAL PRISONERS.—
    ''(i) IN GENERAL.—Beginning 180 days after the date of enactment of this subsection, the Director of the Bureau of Prisons shall collect a DNA sample from each individual in the custody of the Bureau of Prisons who has been convicted of or adjudicated delinquent for a qualifying offense.
    ''(ii) TIME AND MANNER.—The Director of the Bureau of Prisons shall specify the time and manner of collection of DNA samples under this subparagraph.
    ''(B) COLLECTION OF SAMPLES FROM FEDERAL OFFENDERS ON SUPERVISED RELEASE, PAROLE, OR PROBATION.—
    ''(i) IN GENERAL.—Beginning 180 days after the date of enactment of this subsection, the agency responsible for the supervision under Federal law of an individual on supervised release, parole, or probation (other than an individual described in paragraph (4)(B)(i)) shall collect a DNA sample from each individual who has been convicted of or adjudicated delinquent for a qualifying offense.
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    ''(ii) TIME AND MANNER.—The Director of the Administrative Office of the United States Courts shall specify the time and manner of collection of DNA samples under this subparagraph.
    ''(4) DISTRICT OF COLUMBIA OFFENDERS.—
    ''(A) OFFENDERS IN CUSTODY OF DISTRICT OF COLUMBIA.—
    ''(i) IN GENERAL.—The Government of the District of Columbia may—
    ''(I) identify 1 or more categories of individuals who are in the custody of, or under supervision by, the District of Columbia as a result of a conviction of a qualifying offense, from whom DNA samples should be collected; and
    ''(II) collect a DNA sample from each individual in any category identified under clause (i).
    ''(ii) DEFINITION.—In this subparagraph, the term 'individuals in the custody of, or under supervision by, the District of Columbia'—
    ''(I) includes any individual in the custody of, or under supervision by, any agency of the Government of the District of Columbia; and
    ''(II) does not include an individual who is under the supervision of the Director of the Court Services and Offender Supervision Agency for the District of Columbia or the Trustee

appointed under section 11232(a) of the Balanced Budget Act of 1997.
    ''(B) OFFENDERS ON SUPERVISED RELEASE, PROBATION, OR PAROLE.—
    ''(i) IN GENERAL.—Beginning 180 days after the date of enactment of this subsection, the Director of the Court Services and Offender Supervision Agency for the District of Columbia, or the Trustee appointed under section 11232(a) of the Balanced Budget Act of 1997, as appropriate, shall collect a DNA sample from each individual under the supervision of the Agency or Trustee, respectively, who is on supervised release, parole, or probation who has been convicted of or adjudicated delinquent for a qualifying offense.
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    ''(ii) TIME AND MANNER.—The Director or the Trustee, as appropriate, shall specify the time and manner of collection of DNA samples under this subparagraph.
    ''(5) WAIVER; COLLECTION PROCEDURES.—Notwithstanding any other provision of this subsection, a person or agency responsible for the collection of DNA samples under this subsection may—
    ''(A) waive the collection of a sample from an individual under this subsection if another person or agency has collected such a sample from the individual under this subsection or subsection (e); and
    ''(B) use or authorize the use of such means as are necessary to restrain and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample.
    ''(e) INCLUSION OF DNA INFORMATION RELATING TO VIOLENT MILITARY OFFENDERS.—
    ''(1) IN GENERAL.—Not later than 120 days after the date of enactment of this subsection, the Secretary of Defense shall prescribe regulations that—
    ''(A) specify categories of conduct punishable under the Uniform Code of Military Justice (referred to in this subsection as 'qualifying military offenses') that are comparable to qualifying offenses (as defined in subsection (d)(1)); and
    ''(B) set forth standards and procedures for—
    ''(i) the analysis of DNA samples collected from individuals convicted of a qualifying military offense;
    ''(ii) the inclusion in the index established by this section of the DNA identification records and DNA analyses relating to the DNA samples described in clause (i); and
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    ''(iii) the expungement of DNA identification records and DNA analyses described in clause (ii) from the index established by this section in any circumstance in which the underlying conviction for the qualifying military offense has been reversed or the underlying record has been expunged for any other reason.
    ''(2) COLLECTION OF SAMPLES.—
    ''(A) IN GENERAL.—Beginning 180 days after the date of enactment of this subsection, the Secretary of Defense shall collect a DNA sample from each individual under the jurisdiction of the Secretary of a military department who has been convicted of a qualifying military offense.
    ''(B) TIME AND MANNER.—The Secretary of Defense shall specify the time and manner of collection of DNA samples under this paragraph.
    ''(3) WAIVER; COLLECTION PROCEDURES.—Notwithstanding any other provision of this subsection, the Secretary of Defense may—
    ''(A) waive the collection of a sample from an individual under this subsection if another person or agency has collected such a sample from the individual under subsection (d); and
    ''(B) use or authorize the use of such means as are necessary to restrain and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample.
    ''(f) CRIMINAL PENALTY.—
    ''(1) IN GENERAL.—An individual from whom the collection of a DNA sample is required under subsection (d) who fails to cooperate in the collection of that sample shall be—
    ''(A) guilty of a class A misdemeanor; and
    ''(B) punished in accordance with title 18, United States Code.
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    ''(2) MILITARY OFFENDERS.—An individual from whom the collection of a DNA sample is required under subsection (e) who fails to cooperate in the collection of that sample may be punished as a court martial may direct as a violation of the Uniform Code of Military Justice.
    ''(g) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated—
    ''(1) to the Department of Justice to carry out subsection (d) of this section (including to reimburse the Federal judiciary for any reasonable costs incurred in implementing such subsection, as determined by the Attorney General) and section 3(d) of the National DNA Convicted Offender and Casework Backlog Reduction Act of 1999—
    ''(A) $6,600,000 for fiscal year 2000; and
    ''(B) such sums as may be necessary for each of fiscal years 2001 through 2004;
    ''(2) to the Court Services and Offender Supervision Agency for the District of Columbia or the Trustee appointed under section 11232(a) of the Balanced Budget Act of 1997 (as appropriate), such sums as may be necessary for each of fiscal years 2000 through 2004; and
    ''(3) to the Department of Defense to carry out subsection (e)—
    ''(A) $600,000 for fiscal year 2000; and

    ''(B) $300,000 for each of fiscal years 2001 through 2004.''.
    (c) CONDITIONS OF RELEASE.—
    (1) CONDITIONS OF PROBATION.—Section 3563(a) of title 18, United States Code, is amended—
    (A) in paragraph (7), by striking ''and'' at the end;
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    (B) in paragraph (8), by striking the period at the end and inserting ''; and''; and
    (C) by inserting after paragraph (8) the following:
    ''(9) that the defendant cooperate in the collection of a DNA sample from the defendant if the collection of such a sample is required pursuant to section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132).''.
    (2) CONDITIONS OF SUPERVISED RELEASE.—Section 3583(d) of title 18, United States Code, is amended by inserting before ''The court shall also order'' the following: ''The court shall order, as an explicit condition of supervised release, that the defendant cooperate in the collection of a DNA sample from the defendant, if the collection of such a sample is required pursuant to section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132).''.
    (3) CONDITIONS OF RELEASE GENERALLY.—If the collection of a DNA sample from an individual on probation, parole, or supervised release (including an individual on parole pursuant to chapter 311 of title 18, United States Code, as in effect on October 30, 1997) is required pursuant to section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132), and the sample has not otherwise been collected, the individual shall cooperate in the collection of a DNA sample as a condition of that probation, parole, or supervised release.
    (d) REPORT AND EVALUATION.—Not later than 1 year after the date of enactment of this Act, the Attorney General, acting through the Assistant Attorney General for the Office of Justice Programs of the Department of Justice and the Director of the Federal Bureau of Investigation, shall—
    (1) conduct an evaluation to—
    (A) identify criminal offenses, including offenses other than qualifying offenses (as defined in section 210304(d)(1) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132(d)(1)), as added by this section) that, if serving as a basis for the mandatory collection of a DNA sample under section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132) or under State law, are likely to yield DNA matches, and the relative degree of such likelihood with respect to each such offense; and
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    (B) determine the number of investigations aided (including the number of suspects cleared), and the rates of prosecution and conviction of suspects identified through DNA matching; and
    (2) submit to Congress a report describing the results of the evaluation under paragraph (1).
    (e) TECHNICAL AND CONFORMING AMENDMENTS.—
    (1) DRUG CONTROL AND SYSTEM IMPROVEMENT GRANTS.—Section 503(a)(12)(C) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3753(a)(12)(C)) is amended by striking '', at regular intervals of not to exceed 180 days,'' and inserting ''semiannual''.
    (2) DNA IDENTIFICATION GRANTS.—Section 2403(3) of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796kk–2(3)) is amended by striking '', at regular intervals not exceeding 180 days,'' and inserting ''semiannual''.
    (3) FEDERAL BUREAU OF INVESTIGATION.—Section 210305(a)(1)(A) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14133(a)(1)(A)) is amended by striking '', at regular intervals of not to exceed 180 days,'' and inserting ''semiannual''.

    Mr. SCOTT. Mr. Chairman, I do have an opening statement; however, I am advised that the gentleman from Georgia, Mr. Bishop, is supposed to be at a committee hearing as we speak, and I would like to defer to him so that he can make his statement.

    Mr. CHABOT. That is fine.

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    We will go out of order and recognize Mr. Bishop at this time, then come back and have your opening statement, and then I will give my statement.

    Mr. Bishop, we would love to hear from you.

STATEMENT OF HON. SANFORD D. BISHOP, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA

    Mr. BISHOP. Thank you very much, Mr. Scott, and thank you, Mr. Chairman. Thank you for affording me the opportunity to come before your subcommittee.

    I would certainly like to express my gratitude to the Subcommittee on Crime for taking up such a timely and important issue. I would especially like to thank Chairman Hyde, ranking Chairman Conyers, ranking member Scott, and their staffs for making it possible for me to testify here today.

    I commend Representatives Gilman, Kennedy, and Weiner for their recognition of the very serious problem of DNA backlogs and support them in their endeavors to try to provide a solution to this criminal justice dilemma. In general terms, their bills address the problem of DNA backlogs, and two of them provide the much needed funding for the analysis of DNA casework for unsolved crimes. Two of the bills add to the Combined DNA Index System offenders covered under Federal law, the Uniform Code of Military Justice, and the District of Columbia Code.

    I will not spend my limited time to explain these systems, as I understand the subject matter experts will do so later. What I hope to do today is to convince you that while these measures are admirable, more needs to be done, and that there is a vehicle out there to do it—H.R. 2340.
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    There are many other problems in crime laboratories in addition to DNA problems that are in desperate need of attention. ''The minimal appropriation for DNA issues in the three proposals mentioned and are the subject of this hearing is far too limited to help crime labs deal with what has become a national crisis.'' So says James T. Moore, Commissioner of the Florida Department of Law Enforcement, in a March 15, 2000 letter to Chairman McCollum.

    He continues: ''It is for these reasons that we and the leadership of several other major States which comprise the State Coalition have been seeking the passage of the National Forensic Science Improvement Act, which was introduced, Mr. Chairman, on June 24, 1999 with bipartisan support and currently has 21 cosponsors.''

    The forensics bill would provide funding for facilities, personnel, computerization, equipment, supplies, accreditation, certification, education and training. The funds would be administered through State population-based block grants. Each State must have a plan that recognizes its entire forensic science system.

    In the past few years, over 20 House and Senate bill have been introduced to support forensic science with the primary areas of support being DNA and forensic analysis of computer crimes. This piecemeal approach is not working. The National Forensic Science Improvement Act will work because 1) it provides flexible funding to meet local needs, and 2) it supports all the critical areas of forensic science—quality improvement, equipment, facilities, personnel, information management systems, and training. A combination of all of these factors will create the synergy to bring us up-to-date and keep us up-to-date in forensic sciences.

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    If we expect the good guys to defeat the bad guys, it does not make much sense to disarm the good guys.

    Eighty percent of the country's qualified State and local crime labs have major backlogs that cause severe delays in bringing criminals to justice, or, for that matter, in exonerating the innocent. Shortages exist in personnel, training, updated technology and equipment, and in the space that is available for examining physical evidence. And with the backlogs continuing to increase at a rate that is much faster than any increase in budgets for forensic science laboratories, you know that this critical situation will only get worse if nothing is done.

    My bill would authorize $768 million over the next 5 years for States to distribute grants that would be used to improve the quality and timeliness of forensic science and medical examine services. No more than 10 percent of the funding could be used for administrative purposes. The rest would go to agencies all across the country to improve forensic investigatory work.

    Today, as many as one in every four American families is victimized by one or more serious crimes every year—one in every four, Mr. Chairman. In monetary terms, Americans still suffer devastating losses as a result of criminal activity—more than $19 billion a year. Compared to that, my request for less than $800 million over a 5-year period is barely a drop in the bucket. By making a relatively modest investment in forensic science, we can make a major difference in making our community safe from crime and drugs.

    I respectfully request at the appropriate time a hearing on H.R. 2340, Mr. Chairman. Let us look at the whole picture; let us not try to fix it piecemeal. The victims of crime deserve better. Forensic science is the new frontier in the criminal justice arena. Let us seize the day.
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    In closing, Mr. Chairman, I would again like to reiterate my thanks to you and to Chairman Hyde, ranking member Conyers, and ranking member Scott for facilitating my testimony today. I would also like to thank both minority and majority staff members who worked with my office. In addition, I would like to thank you for your accommodation of my schedule exigencies as I must leave for another hearing.

    Thank you very kindly. I would be happy to entertain an questions that you might have.

    Mr. CHABOT. Thank you very much, Congressman Bishop. I do not believe we are going to have any questions of this particular panel, since they are members, but we do appreciate your input, and we understand that you are ranking member of another committee which is meeting at this time.

    So we will recognize the ranking member for his opening statement now.

    Mr. SCOTT. Thank you, Mr. Chairman, and I thank you for accommodating the schedule of the gentleman from Georgia.

    I am pleased to join you in convening this hearing on pending legislation to eliminate the current backlog of DNA samples awaiting analysis at most of the 120 publicly-funded forensic laboratories across the country.

    Over the short span of the last 10 years, DNA has moved the role of forensic laboratories from bit player to star performer in the criminal justice system. Not only has DNA analysis proved to be an efficient and convincing way of identifying perpetrators of serious and sometimes heinous crimes, but it has also proved to be just as convincing a way to exonerate wrongly-accused and sometimes imprisoned individuals.
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    I understand, for example, that DNA played a prominent role in the recent moratorium on executions instituted by the Governor of Illinois after The Innocence Project helped to establish the innocence of more people on death row who were found to be innocent by virtue of the DNA analysis than were actually on death row itself.

    Since a number of witnesses whose bills we will hear about today, including Mr. Bishop whom we just heard from, provide for improvements in forensic sciences necessary for them to meet the growing needs, they should be commended for their efforts in this critical area of criminal justice.

    Currently, much of the potential benefit of the DNA analysis is stymied by the backlog of hundreds of thousands of cases awaiting analysis. I understand the FBI data reveals that DNA analysis where there are known suspects, in those cases, about 25 percent are actually exonerated. So it is bad enough to be wrongly accused of a crime, but any time an innocent person is held in jail or even on bond on criminal charges pending, it is a grave injustice that our entire criminal justice system did not exonerate that person sooner.

    Backlog estimates suggest that there are over 700,000 samples from convicted offenders awaiting analysis and hundreds of thousands of cases awaiting DNA analysis for evidentiary purposes, including many who will be exonerated. This is only for those for whom the sample has been taken and are awaiting analysis. We do not know how many samples remain to be submitted for analysis from convicted offenders subject to analysis or from crime scenes that have not been submitted because people know that the backlog exists.

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    Of course, in addition to the use as a criminal justice tool, the potential uses of DNA information are infinite. The identification of the soldier in the Tomb of the Unknown Soldier is one example. An archaeologist suggests that DNA analysis can be very instrumental in determining the ancestral lineage of humans traced back many years.

    While we should be mindful of these beneficial uses, we should also be mindful of the potential abuses of DNA information. There is no clearer point in the Bill of Rights in the Constitution than the message that Government power, especially in the area of law enforcement, must be carefully circumscribed to avoid unwarranted intrusions upon the liberties and rights of the individual.

    DNA information has the potential to be a powerful instrument for both constructive and destructive purposes. Already we have seen the potential for the use of DNA to discriminate against people on the basis of health indicators. Given the rapid advancement of DNA technology and our tendencies toward racial and ethnic profiling in the criminal justice system, genetic profiling of an individual for criminal justice purposes cannot be far off, and we already know who will be the targets of such profiling.

    So as we move forward to identify and codify the guilty and exonerate the innocent through the use of DNA information, we have to be careful to heed the message of our founding fathers and put boundaries on the power of Government as well as the private sector in the area of DNA information. I expect we will hear more about that from our witnesses, and Mr. Chairman, I therefore look forward to their testimony.

    Mr. CHABOT. Thank you very much, Mr. Scott.
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    I will now take this time to recognize myself for a moment to speak in support of H.R. 2810.

    I worked closely with Congressman Kennedy, who has joined us, and also with Congressman Visclosky over the past 8 months, and I appreciate their leadership on this issue. It is very important.

    We crafted the ''Violent Offender and DNA Identification Act of 1999'' to strike the right balance between the need for effective law enforcement and a respect for individual privacy rights.

    I think it speaks volumes for this legislation that this has been such a bipartisan cooperative effort. As was noted in the chairman's opening statement, which I read just a few moments ago, DNA evidence is an increasingly important tool in criminal investigations. It has the unequivocal power to convict the guilty as well as to exonerate the wrongly accused.

    But we also have to be very careful with this technology and how it is used, because it creates a very slippery slope. This bill represents a significant improvement over earlier proposals, most notably the language contained in the Senate version of the juvenile justice legislation which was our starting point. Since last summer, we have worked with both the FBI and the ACLU to craft the best possible legislation.

    I think that we have struck a very effective balance with this bill. We believe that the CODIS database should never be used for ''population statistics studies'' as the Senate legislation suggested, nor should DNA samples be collected for such crimes as misdemeanor assault. But it should be used to catalog violent criminals, sexual offenders, and crimes with high recidivism rates.
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    It is also essential to achieve the greatest effectiveness of the CODIS system by linking all 50 States and processing the tremendous DNA backlog.

    H.R. 2810 sets clear parameters for when and from whom DNA evidence can be collected and how it can be used, and we believe that this legislation complies in letter and in spirit with the requirements of our Constitution while at the same time effectively aiding law enforcement in setting up a fully operable and highly effective CODIS database.

    I do not want to steal Congressman Kennedy's thunder, and I would like to thank him for taking the time to come and testify before the subcommittee today. I would also like to thank Congressman Gilman and Congressman Weiner as well as Congressman Bishop for their interest in this very important issue.

    At this time, do any other members of the panel want to give opening statements?

    Mr. SCOTT. Mr. Chairman, I would ask unanimous consent that the gentleman from Illinois, who is not a member of the committee, be authorized to give a statement.

    Mr. CHABOT. Absolutely.

    The Senator—or, excuse me—the Congressman is recognized for an opening statement, and then I will introduce the panel.

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    Mr. BLAGOJEVICH. Thank you, Mr. Chairman, and thank you for the promotion. How did you know I was interested in that? I am joking.

    First of all, let me say thank you to you, Mr. Chairman, and also to the ranking member, Mr. Scott, for giving me the opportunity to discuss this issue, which is a very important issue as you have all indicated.

    Recent developments in forensic technology have given police greater tools not only to help solve crimes but also to help ensure that we do not convict the wrong person. Through the use of DNA, police are able to determine with almost absolute certainty whether or not a person has committed a crime.

    A recent report by the Chicago Sun Times revealed the magnitude of this problem and illustrated it with some specific cases. In the first case, in Illinois, police were able to identify Andre Crawford in the sex killings of 11 women on Chicago's South Side. Using a DNA test from the suspect Crawford's mother's saliva, police were able to show that the likely killer was someone in her family. Following the DNA test, Andre Crawford was arrested, questioned, and subsequently confessed to the killings.

    The ability to exclude suspects from crimes is equally powerful. In Illinois—and Mr. Scott alluded to the moratorium that our Governor placed on the death penalty—death row inmate Ronald Jones, who was convicted in 1985, was freed last year when tests showed that semen found at a murder scene in Chicago was not his.

    More than 500,000 DNA samples languish in storage spaces across the country. These samples were collected from rape victims, murder scenes, and a host of violent crimes. In Illinois where I come from, there are almost 1,000 DNA tests awaiting analysis in the crime lab of the Illinois State Police. Even worse, the Chicago Police Department is storing biological evidence from 8,300 other cases, many of which are awaiting testing. Detectives must wait an average of 10 months for results of a DNA test. In the time it takes to get these test results, it is way too easy for witnesses to either forget important details in order to prove up a case, or for witnesses to disappear altogether.
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    The FBI's Combined DNA Index System, or CODIS, enables law enforcement to collect, analyze and match DNA from different crimes across the country. This database has recorded over 400 matches. These matches have aided in almost 600 violent crime investigations. Unfortunately, with the backlog of cases, we are failing to use the CODIS system to its full potential. The unanalyzed samples represent thousands of missed opportunities to solve crimes. If States do not analyze these samples and load them onto the new national DNA database, we are failing to take full advantage of this high-tech crime-fighting tool.

    Not taking full advantage of DNA evidence in the 21st century is tantamount to the 19th century Scotland Yard not calling in Sherlock Holmes. That is why I urge this subcommittee to pass both H.R. 3087 and H.R. 2810. Both of these important bills address the critical DNA backlogs at our local police departments by providing $30 million to eliminate the backlog.

    Additionally, H.R. 2810 authorizes Federal, military, and District of Columbia agencies to collect DNA evidence so the data can be loaded into the CODIS database. By ensuring that this DNA is analyzed, we are assuring that everybody—victims and the accused alike, as well as convicted criminals, often sitting on death row—have a fair shot at justice and that we do not make tragic mistakes.

    But justice must be swift, and that is clearly not the case with the DNA backlog crisis in our Nation. Let us address that problem today, and let us act on these important bills.

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    Thank you, Mr. Chairman and Mr. Ranking Member. I yield back the balance of my time.

    Mr. CHABOT. Thank you very much.

    Do any other committee members wish to make opening statements?

    [No response.]

    Mr. CHABOT. If not, I will introduce the first panel.

    In addition to Congressman Bishop, who already testified, we have three very distinguished Members of the House. I will start with the most senior, on the left, Congressman Benjamin Gilman, who represents the 20th District of New York, which includes Rockland County and parts of Orange, Sullivan, and Westchester Counties. He is serving his 14th term in Congress. Since 1995, he has served as chairman of the House International Relations Committee. From 1977 through 1989, Congressman Gilman served as the ranking Republican on the House Select Committee on Narcotics. A World War II veteran, Congressman Gilman flew 35 missions over Japan and earned the Distinguished Flying Cross and the Air Medal with oak leaf clusters. He is a graduate of the University of Pennsylvania and the New York Law School. We welcome you here this afternoon, Chairman Gilman.

    The second panel member this afternoon will be Congressman Anthony D. Weiner. He represents the 9th District of New York, which includes Brooklyn and Queens. He was first elected to Congress in 1998. In 1991, at the age of 27, he was the youngest person ever elected to the New York City Council, where he served for 7 years. He received his undergraduate degree from the State University of New York at Plattsburgh. We also might note that he represents the district that was represented by another distinguished member of this committee, Congressman Chuck Schumer, who is now Senator Schumer.
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    Our third witness on this panel is Congressman Patrick J. Kennedy, who represents the First District of Rhode Island, which includes the cities of Providence and Pawtucket, and is serving his third term in Congress. He was first elected to public office in 1988 when, at the age of 21, he was elected to the Rhode Island House of Representatives. He presently serves as chairman of the Democratic Congressional Campaign Committee—I will not hold that against him—the fifth-ranking position in the Democratic House Leadership.

    We welcome all three Members of Congress this afternoon, and we will begin with Congressman Gilman.

STATEMENT OF HON. BENJAMIN A. GILMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

    Mr. GILMAN. Thank you, Chairman Chabot, and I want to thank all of our colleagues for taking the time to address this very important issue. Please convey to Chairman McCollum our sincere thanks for putting this on your agenda.

    This is a very critical DNA backlog problem and one that I was seeking to address, and I appreciate the opportunity to testify today on my legislation addressing the backlog problem.

    I want to express my gratitude to Congressmen Bart Stupak and Jim Ramstad, co-chairmen of the Congressional Law Enforcement Caucus, for their assistance with this issue and my legislation.
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    In addition, I want to commend Congressman Kennedy, Congressman Bishop, and Congressman Weiner for addressing this very important problem, and our fellow panelists who will be following us.

    Joining me at the witness table is New York State's Director of Criminal Justice, Katherine Lapp, who has been of great assistance to me in working on this legislation. Ms. Lapp previously served as Director of Criminal Justice for Mayor Giuliani in New York City.

    Permit me to offer a brief outline of the issues and an explanation of H.R. 3375, my measure, the ''Convicted Offender DNA Index System Support Act,'' the cooperative solution which I have proposed to eliminate both DNA backlogs and to close the legislative loophole which presently exempts Federal, District of Columbia, and military convicted offenders from participation in the national DNA database.

    As we are all aware, DNA is a unique genetic building block found in every cell of the human body. In 1994, the Congress initially passed the DNA Identification Act, which authorized the construction of the Combined DNA Index System, known as CODIS, to assist our Federal, State and local law enforcement agencies in fighting violent crime throughout our Nation. It has been quite successful in what has been accomplished in that brief period of time.

    CODIS is a master database which allows our law enforcement agencies to submit, retrieve and compare DNA samples of convicted offenders and DNA evidence from crime scenes for which there are no suspects.

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    Since beginning its operation in 1998, every State in our Nation has now passed a DNA database measure. The system has worked extremely well in assisting our law enforcement agencies by matching DNA evidence with possible suspects. The national DNA database has already assisted in over 1,000 cases and accounted for the apprehension of over 200 suspects in unsolved violent crimes.

    However, the high volume of convicted offender samples awaiting to be analyzed, expansion efforts by the States, and the lack of support for our Nation's DNA laboratories have resulted in a growing nationwide backlog of some 700,000 unanalyzed convicted offender DNA samples and a backlog of evidence for cases for which there are no suspects.

    Through the efforts of New York Governor Pataki and Katherine Lapp, who sits alongside me, New York State's Director of Criminal Justice, our State has recognized the importance of DNA technology as both a tool to assist law enforcement in detecting and identifying multiple offenders in an expeditious manner and as a means to exonerating wrongfully accused suspects.

    Although our State has a backlog of some 2,000 samples, as of December 1999, Governor Pataki announced that New York would be expanding collection efforts to include all violent felons and a number of nonviolent felony offenders. As anticipated, the expansion of our collection effort has already led to the recent identification of a suspect in a brutal, 20-year-old Westchester County homicide, a case which previously had no suspects.

    The increase in collection efforts and the success of DNA technology in New York State is a good example of the amazing opportunity CODIS provides nationwide and the challenges we must overcome to make the most of this anti-crime opportunity.
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    But the issue of the DNA backlog is twofold. First, the hundreds of thousands of convicted offender DNA samples which continue to grow on the shelves of our forensic laboratories must be analyzed and entered into the CODS system. And second, assistance must be provided to all of our States to combat the backlog of cases for which there are no suspects.

    Accordingly, in June 1999, I began to work with the Federal Bureau of Investigation and our New York State Police Department to develop a cooperative and comprehensive solution to both DNA backlogs. My measure, H.R. 3375, the ''Convicted Offender DNA Index System Support Act,'' will assist our local, State and Federal law enforcement personnel by ensuring that crucial resources are going to be provided to our DNA databanks and to our crime labs.

    For our Nation's law enforcement community to successfully solve all these crimes for which there are no suspects, they must first eliminate the convicted offender sample backlog. The effort to analyze and enter convicted offender DNA samples must be coordinated on a national scale to ensure expediency and to provide individual States with access to a full database of convicted offenders.

    Accordingly, my measure will utilize private forensic laboratories, presently available, to provide the States and the Nation with the most efficient means of eliminating the convicted offender sample backlog.

    The FBI will develop a plan in conjunction with the States and the necessary Federal agencies to decide which private labs meet established quality control standards and safety requirements and can be used for the analysis of convicted offender samples. This approach will allow our States to begin the analysis of these samples immediately and on a nationwide scale.
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    As the convicted offender backlog is eliminated, our States will then be offered the opportunity to apply to a new grant program created by the ''Convicted Offender DNA Index System Support Act.'' This grant program, funded by a 75 percent Federal funding, 25 percent State split will allow the States individually to address their unsolved casework backlogs.

    One of the most important aspects to understand as we debate the solution to these problems is that the national DNA database was created to enable the law enforcement community to collect their samples and to analyze crime scene evidence for which there are no suspects. CODIS provides law enforcement with the ability to track criminals who cross State lines in an effort to evade detection.

    For the victims of these unsolved crimes, it is essential that we address and eliminate the unsolved casework backlog. The ''Convicted Offender DNA Index System Support Act'' also provides funding to the Federal Bureau of Investigation to eliminate their unsolved case work backlog and closes an important loophole created by the original legislation. Although all 50 States require DNA collection from designated convicted offenders, for some inexplicable reason, Mr. Chairman, convicted Federal, District of Columbia and military offenders have been exempt from the system. M y measure closes that loophole by requiring the collection of samples from any Federal, military, or D.C. offender convicted of a violent crime.

    In closing, Mr. Chairman, as we are all aware, our Nation's fight against crime is never over. Every day, the use of DNA evidence is becoming an even more important tool for our Nation's law enforcement in solving crimes, convicting the guilty, and exonerating the innocent.
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    The Justice Department estimates that erasing the convicted offender backlog nationwide could resolve at least 600 more cases. The accurate number of unsolved State and Federal cases which may be concluded through the elimination of both backlogs is unknown. However, if one more case is solved, and one more violent offender is detained because of our joint efforts, we will have succeeded.

    The ''Convicted Offender DNA Index System Support Act'' was developed through a cooperative effort by our Federal and State law enforcement community and represents, I believe, a bipartisan solution to these very critical issues. Moreover, this legislation offers the most comprehensive solution to our Nation's DNA backlogs and provides the foundation necessary to address each of the forensic issues to be discussed today.

    Mr. Chairman, in closing, let me say that along with my testimony I would like to submit for the record letters from Governor Pataki in support of this measure and a letter from FBI Assistant Director Donald Kerr, of the FBI Laboratory Division, in support of this issue.

    Thank you, and I thank my colleagues for your patience and for allowing me to testify today.

    Mr. CHABOT. Thank you very much, Chairman, Gilman, and without objection, the letters will be received.

    Mr. GILMAN. Thank you very much, Mr. Chairman.

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    [The prepared statement of Mr. Gilman and attachments follow:]

PREPARED STATEMENT OF HON. BENJAMIN A. GILMAN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

    I want to thank my friend and colleague, Chairman Bill McCollum, and Ranking Member Robert Scott for addressing the DNA backlog problem and affording me this opportunity to testify today. I want to express my gratitude to Congressmen Bart Stupak and Jim Ramstad, Co-Chairmen of the Congressional Law Enforcement Caucus, for their assistance with this issue and my legislation. In addition, I commend Congressmen Kennedy, Weiner and our fellow panelists for their recognition and attention to this important issue.

    Permit me to offer a brief outline of the issues and an explanation of H.R. 3375, the Convicted Offender DNA Index System Support Act, the cooperative solution I have proposed to eliminate both DNA backlogs and close the legislative loophole, which presently exempts federal, District of Columbia, and military convicted offenders from participation in the national DNA database.

    As you are aware, DNA is the unique genetic building block found in every cell of the human body. In1994,the Congress passed the DNA Identification Act, which authorized the construction of the Combined DNA Index System (CODIS), to assist our federal, state and local law enforcement agencies in fighting violent crime throughout the Nation. CODIS is a master database which allows our law enforcement agencies to submit, retrieve and compare DNA samples of convicted offenders and DNA evidence from crime scenes for which there are no suspects.

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    Since beginning its operation in 1998, every state in our nation has a passed DNA database legislation and the system has worked extremely well in assisting law enforcement. By matching DNA evidence with possible suspects, the national DNA database has assisted in over 1,000 cases and accounted for the capture of over 200 suspects in unsolved violent crimes.

    However, the high volume of convicted offender samples awaiting to be analyzed, expansion efforts by the states and a lack of support for our nation's DNA laboratories, have resulted in a growing nationwide backlog of approximately 700,000 unanalyzed convicted offender DNA samples and a backlog of evidence for cases for which there are no suspects.

    Through the efforts of New York Governor Pataki and Katherine Lapp, New York State's Director of Criminal Justice, who is attending this hearing today, New York State has recognized the importance of DNA technology as both a tool to assist law enforcement in detecting and identifying multiple offenders in an expeditious manner, and as a means to exonerating wrongfully accused suspects. Although our state has a backlog of approximately 2,000 samples, in December of 1999, Governor Pataki announced that New York would be expanding collection efforts to include all violent felons and a number of non-violent felony offenders. As anticipated, the expansion of the collection effort has already led to the recent identification of a suspect in a brutal 20 year old Westchester County homicide, a case for which there previously was no suspect.

    The increase in collection efforts and the success of DNA technology in New York is a good example of the amazing opportunity CODIS provides nationwide and the challenges we must overcome to make the most of this anti-crime opportunity. The issue of the DNA backlogs is twofold: first, the hundreds of thousands of convicted offender DNA samples, which continue to grow on the shelves of our forensic laboratories, must be analyzed and entered into the CODIS system; second, assistance must be provided to the states to combat the backlog of cases for which there are no suspects.
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    Accordingly, in June of 1999, I began to work with the Federal Bureau of Investigation and the New York State Police Department to develop a cooperative and comprehensive solution to both DNA backlogs. This measure, H.R. 3375, the Convicted Offender DNA Index System Support Act, will assist our local, state and federal law enforcement personnel by ensuring that crucial resources are provided to our DNA data-banks and crime laboratories.

    For our nation's law enforcement community to successfully solve crimes for which there are no suspects, they must first eliminate the convicted offender sample backlog. The effort to analyze and enter convicted offender DNA samples must be coordinated on a national scale to ensure expediency and to provide individual states with access to a full database of convicted offenders. Accordingly, H.R. 3375 will utilize private forensic laboratories, presently available, to provide the states, and the nation, with the most efficient means of eliminating the convicted offender sample backlog. The FBI will develop a plan, in conjunction with the states and the necessary federal agencies, to decide which private laboratories meet established quality control standards and safety requirements and can be used for the analyzation of convicted offender samples. This approach will allow the states to begin the analyzation of these samples immediately and on a nationwide scale.

    As the convicted offender backlog is eliminated, our states will be offered the opportunity to apply to a new grant program created by the Convicted Offender DNA Index System Support Act. This grant program, funded by a 75 percent federal, 25 percent state split, will allow the states individually to address their unsolved casework backlogs. One of the most important aspects to understand, as we debate the solution to these problems, is that the national DNA database was created to enable the law enforcement community to collect DNA samples and analyze crime scene evidence for which there are no suspects. CODIS provides law enforcement with the ability to track criminals who cross state lines in an effort to evade detection. For the victims of these unsolved crimes, it is essential that we address and eliminate the unsolved casework backlog.
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    The Convicted Offender DNA Index System Support Act also provides funding to the Federal Bureau of Investigation to eliminate their unsolved casework backlog and closes a loophole created by the original legislation. Although all 50 states require DNA collection from designated convicted offenders, for some inexplicable reason, convicted Federal, District of Columbia and Military offenders have been exempt. H.R. 3375 closes that loophole by requiring the collection of samples from any federal, military, or D.C. offender convicted of a violent crime.

    In conclusion, Mr. Chairman, as we are all aware, our Nation's fight against crime is never over. Everyday, the use of DNA evidence is becoming a more important tool to our nation's law enforcement in solving crimes, convicting the guilty and exonerating the innocent. The Justice Department estimates that erasing the convicted offender backlog nationwide could resolve at least 600 cases. The accurate number of unsolved state and federal cases which may be concluded through the elimination of both backlogs is unknown. However, if one more case is solved and one more violent offender is detained because of our efforts, we have succeeded.

    The Convicted Offender DNA Index System Support Act was developed through a cooperative effort by our federal and state law enforcement community and represents a bipartisan solution to these issues. Moreover, this legislation offers the most comprehensive solution to our nation's DNA backlogs and provides the foundation necessary to address each of the forensic issues to be discussed today.

    Mr. Chairman, along with my testimony I would like to submit for the record letters from Governor Pataki in support of my measure, and a letter from FBI Assistant Director, Donald Kerr, of the FBI Laboratory Division, in support of this issue. Thank you for your time and consideration.
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State of New York,
Executive Chamber, State Capitol,
Albany, NY, March 20, 2000.
Hon. BILL MCCOLLUM, Chairman,
Subcommittee on Crime,
Committee on the Judiciary,
House of Representatives, Washington, DC.

    DEAR CONGRESSMAN MCCOLLUM: I am writing in support of H.R. 3375, the Convicted Offender DNA Index System Support Act sponsored by Congressman Gilman, and H.R.3087, the DNA Backlog Elimination Act sponsored by Congressman Weiner. The leadership shown by both Congressmen Gilman and Weiner by proposing bills designed to address the critical need for federal funding of state and local crime laboratories underscores their commitment to solving crimes and promoting public safety. I Indeed, their insight will serve not only to analyze DNA evidence in unsolved criminal cases but will also assist in eliminating the backlog of convicted offender DNA samples that, due to limited resources, have not yet been analyzed.

    Hailed as the single most important crime-fighting tool since the development of latent fingerprint technology, DNA science has altered the course of criminal prosecutions. An emerging technology, DNA analysis will solve an untold number of crimes, intercept serial offenders, better protect victims and exonerate the wrongfully accused. Furthermore, since every state in our nation has a DNA databank statute, law enforcement now has the appropriate tools to track criminals who cross state lines in an effort to evade detection. H.R. 3375 and H.R. 3087 will give the states the ability to take proper advantage of the nationwide DNA databank.
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    New York State's DNA Identification Index, established in 1994, was significantly expanded in December of 1999. Under the new law, all convicted violent felons and a number of non-violent felons—approximately 65 percent of all offenders—are required to submit DNA samples, thus increasing ten-fold the number of DNA samples in the State's DNA databank. Significantly, the new law applies retroactively to offenders already serving prison sentences for covered offenses—a pool of more than 75,000 offenders. Since December of last year, New York state has collected more than 20,000 samples for inclusion in the databank.

    I am pleased to report that since the expanded DNA law took effect, a suspect in the Westchester County brutal homicide in 1979 of Diane Gregory has been identified. Detectives reviewing the ''cold'' Gregory case uncovered DNA evidence from a bloodstained bed sheet taken from the crime scene. DNA analysis of the bloodied sheet matched the DNA profile of a career felon whose DNA sample was taken in January of this year and downloaded into the databank just last month. The Gregory family, who joined me at a press conference to announce the filing of murder charges against the suspect, expressed their great relief that the person ?suspected of killing their loved one will at long last be brought to justice. However, more still needs to be done. To that end, I recently submitted a proposal to the New York State Legislature that will further expand the DNA databank to require that all felony and misdemeanor offenders submit a DNA sample upon conviction.

    As I am sure you are aware, the expanded use of DNA technology to solve crimes requires the infusion of a variety of resources. And, in order to ensure that all covered offenders provide samples and that all samples are expeditiously analyzed and downloaded into the DNA databank, I called for a doubling of resources provided to the State DNA databank initiative in the Executive Budget for fiscal year 2000/01. Similarly, New York State recently provided nearly $1 million in grants to accredited DNA laboratories across the State to off-set costs associated with work in unsolved cases.
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    Federal assistance, however, is also needed to facilitate ensuring the success of this important crime fighting initiative and to develop the national DNA database. The staggering results of DNA science in solving otherwise unsolvable crimes underscores the need to fund laboratories struggling to keep pace with rapid advancements in DNA technology. Federal funds for these laboratories conducting DNA analysis are needed to better ensure that the innocent are exonerated and the guilty are brought to justice. Proper administration and funding of DNA crime laboratories is essential to enhance public safety and promote public confidence in our criminal justice system.

    Again, I commend your efforts to secure passage of federal legislation to provide this critical funding to the states.

Very truly yours,

George E. Pataki, Governor.

cc:

The Honorable Benjamin Gilman
The Honorable Anthony Weiner


U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, DC, May 20, 2000.
Hon. BENJAMIN A. GILMAN,
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House of Representatives, Washington, DC.

    DEAR REPRESENTATIVE GILMAN: The Federal Bureau of Investigation (FBI) has supported the implementation of forensic DNA technology since the mid-1980's through a program of research, technology transfer and training for personnel from State and local forensic laboratories, and the development and implementation of the Combined DNA Index System or CODIS and the National DNA database.

    The DNA Identification Act of 1994 (the Act) granted authorization for the National DNA database, defined quality control and privacy requirements for such National database, and provided much needed funding for the development of DNA analysis capabilities for State and local forensic laboratories and CODIS. The Act did not include authority for the collection of DNA samples from persons convicted of federal or military crimes or crimes committed in the District of Columbia. Now that all 50 states have passed legislation authorizing the establishment of State DNA databases, it is time to address this loophole in the coverage of the National DNA database. The FBI has been planning with other affected Federal agencies for such a Federal convicted offender program. The FBI hopes that persons convicted of offenses do not escape detection for their past or future crimes because they have been convicted of federal, military or District of Columbia offenses. Considering our past experiences with CODIS, there is little doubt that additional crimes will be solved by the inclusion of this last group.

    To maximize the potential investigative aspects of the forensic DNA technology, the FBI encourages an expeditious population of these State and National DNA databases through the provision of funding for the analysis of the convicted offender samples collected by the States. While States continue to develop the infrastructure for their DNA analysis capabilities, hundred of thousands of convicted offender samples that have been collected await analysis. Similarly, tens of thousands of sexual assault evidence kits and other crime scene evidence are sitting unanalyzed in storage. Initial attention has been focused on these convicted offender samples that have been collected, but it is equally important to address the crime scene evidence nationwide for which laboratories do not have the current capacities. We know that States analyzing both convicted offender samples and crime scene evidence for inclusion in CODIS, are obtaining investigative leads and solving crimes.
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    The Act provided a sound foundation for a national DNA database. Many states established State DNA databases. By closing the final loophole for federal., military and District of Columbia offenders, and providing sufficient funding for the analysis of the convicted. offender samples and crime scene evidence across the nation, the full potential of this investigative tool will be realized.

Sincerely,

Donald M. Kerr, Assistant Director,
Laboratory Division


    Mr. CHABOT. At this time, I recognize Congressman Weiner for his statement.

STATEMENT OF HON. ANTHONY D. WEINER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

    Mr. WEINER. Thank you, Mr. Chabot and Representative Scott, and the dean of the New York Delegation, Mr. Gilman, Mr. Kennedy, and Mr. Bishop.

    As a member of this subcommittee, it is good to be on this side of the table. I hope I will have the opportunity to pepper myself with questions when I have concluded my testimony.

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    I want to begin by telling you a story about the Gregory family in Westchester, NY. In August 1979, Diane Gregory, a 22-year-old woman, was brutally stabbed to death in her apartment in Mount Vernon, NY, not far from Mr. Gilman's home. Blood stains found at the scene of the crime were preserved as evidence. The police had some good leads. They had a fair amount of forensic evidence. But they could not put their suspect at the scene of the crime, and the case went unsolved for 20 years.

    Fast forward to December 1999. Governor Pataki of New York signs a new law expanding my State's DNA database. Now all convicted criminals must submit DNA for testing including robbers.

    So in January, a career criminal serving time for robbery, named Walter Gill, is asked to provide a blood sample to New York prison officials. The sample is loaded onto the State's database. The Gregory family, hearing of new advances in DNA technology, contacts the Westchester County District Attorney's Office and asks that they reopen the case. A blood stain from the crime scene is tested for DNA.

    This sample, taken from the Gregory murder scene is run through the State database. It matches the recently-provided sample from the robber Walter Gill. With the DNA match, Mr. Gill was indicted for the 20-year-old murder.

    Prosecutors reported that when Mr. Gill was asked to provide a blood sample at the beginning of this process in January, he said that he knew at that moment he was in trouble.

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    Well, Mr. Chairman and my colleagues, he was only half right, because taking his blood, testing it for DNA and uploading it onto the computers did not solve the case. It was not until the crime scene evidence was tested that the Gregorys got some relief.

    This story highlights the two sides of the DNA backlog issue. The Justice Department reported last year that there are 180,000 rape kits sitting in police evidence lockers throughout the country. The New York City Department has 16,000 rape kits just like this in its possession.

    If you can visualize this, my colleagues, I went to visit it this week. It is a room roughly this size, kept at 15 degrees Fahrenheit, stocked, box to box to box, filling a room roughly this size. Those are victims, my colleagues. These are people w ho have been raped. That is evidence which has not been analyzed—in New York alone, 16,000 of them—evidence that has not even been touched or analyzed.

    These kits represent 180,000 women nationwide whose cases have not been solved, up to 180,000 rapists who are still at-large, and 180,000 injustices waiting to be solved.

    This Congress and this administration and State and local law enforcement officials have done a fairly good job of addressing one side of the equation. Convicted offender samples are being uploaded onto State and national databases very quickly. In fact, in New York State, with the great leadership of Katherine Lapp, they anticipate that their convicted offender backlog will be largely eliminated by the end of this year.

    Florida, where Mr. McCollum is from and where Mr. Canady is from, has had similar success dealing with their backlog of convicted offender samples.
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    But the other side of the equation has been largely ignored. We need to get rid of the crime scene evidence backlog as well. My bill, the ''DNA Backlog Elimination Act,'' and Mr. Gilman's bill would seek help for families like the Gregorys. We must devote more funds to the testing of crime scene evidence so that more victims can receive justice.

    My bill authorizes $60 million over 2 years for DNA analysis of convicted offender samples and crime scene evidence. Mr. Chairman, testing with a rape kit like the one I have shown you for DNA is expensive. It sometimes costs over $2,000. The subcommittee could tomorrow authorize funds that would bring relief to victims right away. Testing crime scene evidence can link more killers like Walter Gill to crime scenes around the country and more rapists to the crimes that they have committed. It would put more criminals away and bring relief to countless victims. It is money and money alone that is preventing more victims from taking advantage of DNA to solve their crimes.

    The extraordinary power of DNA to solve past crimes is indisputable. The same could be said for its power to free the wrongly-accused. We have done an admirable job working toward elimination of the convicted offender backlog. Now we need to do a better job analyzing crime scene evidence so we can link the felons to the crimes we all know they committed.

    I thank you for holding this hearing, and I thank my fellow panelists for working so hard on this issue. I want to join in thanking Katherine Lapp, the Criminal Justice Coordinator from the State of New York, and Governor Pataki for being leaders on this issue. I also want to thank the officials at the Department of Justice who have done so much to push this issue forward and also thank Eric Rosen and Serena Torrey of my staff for helping me prepare this legislation.
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    I thank you, Mr. Chairman.

    Mr. CHABOT. Thank you very much, Congressman Weiner.

    [The prepared statement of Mr. Weiner follows:]

PREPARED STATEMENT OF HON. ANTHONY D. WEINER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

    Thank you, Mr. Chairman and Mr. Scott, for holding this hearing.

    Congress recognized the power of DNA to solve crimes and free those wrongly accused in 1994, when it passed the 1994 Crime Act. That Act included provisions establishing the FBI's Combined DNA Index System (CODIS), a national DNA database program. As of June 1998, all 50 states require the collection of DNA samples. In my own state of New York, all convicted violent felons and a number of non-violent felons—approximately 65 percent of all offenders—are required to submit DNA samples.

    Effective use of DNA evidence has the potential to revolutionize the way we fight crime. Consider the case of Debbie Smith, a receptionist in a hair salon in Williamsburg, Virginia. Ms. Smith was brutally raped in 1989, but local investigators had no leads as to the identity of her attacker. Several years later, Ms. Smith received some comforting news: Virginia's crime lab ''caught'' her rapist. By matching DNA evidence collected from Ms. Smith in 1989 against Virginia's new convicted offender database, the state came up with a match. Her attacker, a man already serving time for convictions for kidnaping and robbery, was then convicted of raping Smith. He received two life sentences plus 25 years. Some law enforcement officials in my district have described DNA to me as ''the biggest thing to happen in crime solving since fingerprints,'' and I think they are exactly right.
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    But there is a problem: the crime laboratories capable of performing modern DNA analysis are woefully underfunded. This funding problem threatens to undermine the power of DNA as a crime-fighting tool. DNA testing is not cheap: the most effective, ''Short Tandem Repeats,'' or STR, method can cost upwards of $200 per sample. DNA analysis of crime scene evidence, such as rape kits, can cost over $2000 per kit.

    Inadequate resources for state and local crime labs has led to a backlog of DNA samples waiting to be analyzed. This backlog is made up of convicted offender samples, as well as of crime scene evidence for which there is no suspect. It is not easy to get a clear picture of the extent of this forensic backlog, but my discussions with state and Federal officials reveal the following:

 in April, 1999, the Department of Justice estimated there to be 650,000 convicted offender samples awaiting analysis;

 the Department further estimated that this figure would reach 1,000,000 this year;

 as of October, 1999, there were up to 100,000 convicted offender samples awaiting analysis in New York (and it is important to note that New York's recently-revised criminal statutes should result in 28,000 new samples taken each year, as compared with 3,000 under the old law);

 according to a September, 1999 survey conducted for the Attorney General's National Commission on the Future of DNA Evidence, 180,000 rape kits are awaiting analysis nationally; and

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 according to the Commissioner of the New York City Police Department, 12,000 of these rape kits sit in a Queens warehouse, unanalyzed.

    A February, 2000 report issued by the Bureau of Justice Statistics sheds more light on the problem. According to BJS' survey of DNA crime labs, 69% of all labs had a backlog of DNA convicted offender samples. Almost no labs were up to date in processing their evidence. The report reveals labs are trying to address the backlog: 44% of them are hiring additional staff; 34% had staffers working overtime; and 13% were contracting work out.

    The Federal government needs to do more to help local crime labs eliminate their DNA evidence backlog. In Fiscal Year 2000, $15 million was appropriated for the Department of Justice to help states eliminate their convicted offender backlog. An additional $15 million was allocated so that states can upgrade their lab capacities generally. This is a good first step, but if one again uses New York as an example, it is clear the amount of Federal funding is still inadequate: the state has received only approximately $1,500,000 over the past several years to upgrade its DNA analysis capacity, despite the fact that it has tens of thousands of samples waiting to be analyzed.

    In October of last year, after meeting with law enforcement officials throughout my district and state, I introduced H.R. 3087, the DNA Backlog Elimination Act. Sponsored by Members from both sides of the aisle and endorsed by Governor George Pataki, H.R. 3087 would authorize the Department of Justice to spend $30 million over the each of the next two years on DNA backlog elimination, paying particular attention to those jurisdictions with the largest problem. It would require the Federal Bureau of Investigation to work in conjunction with the Department's Office of Justice Programs to develop state plans to eliminate forensic evidence backlogs. Importantly, the FBI and OJP would have to consider the extent of each state and local lab's backlog in determining how much fiscal aid to provide. This provision is critical if we are to adequately address high-backlog jurisdictions. All DNA profiles entered into databases pursuant to H.R. 3087 would be protected from improper access: the Act permits disclosure of DNA samples and analyses only to criminal justice agencies, in judicial proceedings, for criminal defense purposes and, only if personally identifiable information is removed, for research, quality control or population statistics purposes.
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    Mr. Chairman, the time has come for this Congress to recognize the potential of DNA testing. I applaud you for holding these hearings today. I would also like to commend Mr. Gilman, Mr. Kennedy, and Mr. Chabot for their efforts in this area. I am a cosponsor of each of their bills and believe House consideration of any of the three pieces of legislation you have before you today would be a step in the right direction. Let me also applaud Senators Kohl and DeWine; their Violent Offender DNA Identification Act of 1999 was passed by the Senate last year as part of that body's juvenile justice bill, and it is my hope that the Conference Committee currently considering that legislation soon reports it favorably. Thank you again for holding today's hearing, and I look forward to working with you so that we can together realize the full potential of this twenty-first century crime-fighting tool.

    Mr. CHABOT. Now, we will hear from our final witness on this panel, Congressman Kennedy.

STATEMENT OF HON. PATRICK J. KENNEDY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF RHODE ISLAND

    Mr. KENNEDY. Thank you.

    I ask permission to submit my full remarks in writing to the committee.

    Mr. CHABOT. Without objection.

    Mr. KENNEDY. And I would like to just briefly summarize the points of our bill, Mr. Chairman, and highlight some of the differences in our bill and those that exist in the other bills that have been proposed.
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    I also want to thank Mr. Scott for his constant vigilance and leadership on all issues regarding trying to make our streets safer and thank him for all of his good work.

    First, let me just say the scope of the bill, H.R. 2810, deals with both the backlog issue that has just been mentioned as well as the need to allow the Federal, military, and District of Columbia agencies to collect DNA evidence. This is a little bit different from some of the other bills and it is similar as well to some of the other bills, but it is an important feature of this legislation.

    Second, regarding the funding stream, H.R. 2810 is different from many of the other bills because all—and I repeat, all—of the grant money goes directly to the States. Now, I have been up to see the DNA collection effort in my State of Rhode Island, and it has been going on for a little over a year, and I can tell you, as is the case everywhere else, as has just been testified to, there is a backlog of hundreds and hundreds of samples.

    So we need to make sure we allow the States the resources to be able to determine what the most effective way is for them to reduce the backlog. The power, in the case of this bill, H.R. 2810, remains with the States to determine what they want to do with their own crime labs or private labs—let them make the choice; let us not mandate it—rather than have it be an FBI decision alone. I think this is a very important feature to this legislation that needs to be acknowledged.

    Third, regarding the definitions of privacy, in our bill, as you know, Mr. Chairman, H.R. 2810, we have several provisions which make it attentive to civil liberty issues, while others that have been proposed before you are not as attentive to these very controversial issues of civil liberties. I can guarantee you that if we are not careful here, we are going to lose the opportunity to address the concerns that we are all here to address, and that is the backlog. If we throw in there a bunch of controversial civil liberty things, and this thing gets tied up, we are going to postpone the day that our States can receive the resources they need to finish the backlog and address some of these crimes which have just been outlined.
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    Finally, H.R. 2810 makes a standard ''serious violent felony,'' rather than the looser ''crime of violence'' that is in some of this legislation, the standard. Why is this important? Because we do not want to, again, run into this Pandora's box of getting in over our heads. We want to focus on those crimes that are most important to focus on in order to address these crimes that we have just heard about.

    And I might add that in addition to these felonies, we have also included burglary, because the FBI has said that this is a gateway crime to some of these other offenses that we want to detect. But we do not want this bill to be a catch-all for every, single misdemeanor out there. I think this is another important difference between this legislation and others that you have before you.

    Furthermore, the bill does not include samples from juveniles adjudicated delinquent, as some of the legislation that is before you does. I can guarantee you that if we have juvenile adjudications in any legislation—and we all know that juvenile adjudications are treated differently than regular criminal convictions for privacy reasons—we need to maintain this distinction, because if we do not, I again would say that we would get ourselves into trouble in terms of passing some legislation that can actually see the light of day and get the needed funds to our States. Therefore, they should not be included in the permanent database for criminal convictions.

    It is a slippery slope here, Mr. Chairman. Many people can say, ''Oh, I am going to be tougher on crime; I am going to include everybody.'' I can guarantee you if you are going to include all the juveniles, and you are going to include everyone with a misdemeanor—why stop there? Why not just all of us voluntarily submit a DNA sample? I can guarantee you if you ever put that out there, it would meet with a real hue and cry from the American public, who are concerned about civil liberty issues.
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    Finally, let me say that H.R. 2810 includes specific language that allows the defendant access to the DNA samples. We know it is important to allow for the exoneration of people who have been wrongly convicted, but we need to make sure that the defendant has access to these DNA samples in order to establish their innocence. I have been notified by Legislative Counsel that H.R. 2810 does this and has the language. I know the ACLU still has some further concerns, but I believe that we have received assurance that this is permissible under the language in this legislation.

    Finally, let me thank you again, Mr. Chairman, for your work on this, and Congressman Visclosky and others. We are all gathered here to get something done. From all of our experience in this matter, it is just criminal, absolutely criminal, that we let these crimes go unsolved when they can be solved—not only for the sake of getting the perpetrators and putting them in jail, but for the sake of the millions of families out there, families of victims of crimes, who want closure and who will be given some closure if we just pass this legislation.

    If you ask any person involved in law enforcement today, they say they are curtailed in many of their rights to find a criminal and prosecute them and get them involved in the justice system when they feel that the rights are too much on the criminal's side. Well, I can guarantee you this legislation is a modern-day tool for us to put some more strength in the hands of our law enforcement officials to get these criminals off the street and at the same time to make sure that we exonerate those who are wrongfully convicted.

    With that, thank you, Mr. Chairman, and I join my colleagues in thanking you all for your attention today.
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    [The prepared statement of Mr. Kennedy follows:]

PREPARED STATEMENT OF HON. PATRICK J. KENNEDY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF RHODE ISLAND

    Mr. Chabot, Mr. Scott and other Members of the Committee, I appreciate you allowing me to address you today on this important crime issue. I want to thank my fellow panelists as well, Mr. Gilman and Mr. Weiner, for their hard work on this subject and for their efforts to move DNA backlog legislation through the process. I value their opinions and their contributions to this debate. Additionally, I would like to welcome Barry Steinhardt of the American Civil Liberties Union and Dr. Dwight Adams of the Federal Bureau of Investigation, who will be testifying later today, for their work with my office on this issue.

    I appreciate the opportunity to testify on a bill that I have introduced, along with Congressman Chabot and Congressman Visclosky, The Violent Offender DNA Identification Act of 1999, HR 2810.

    This bipartisan measure will put more criminals behind bars by correcting practical and legal obstacles that leave crucial DNA evidence unused and too many violent crimes unsolved. Every week we hear stories about DNA evidence. Whether it is a prisoner on death row for a crime he didn't commit who is released by DNA evidence or a criminal suspect finally brought to justice using DNA evidence, DNA is making headlines.

    As you all know, currently, all 50 states require DNA samples to be obtained from certain convicted offenders, and these samples can be shared through a national DNA data base known as CODIS. To date, the FBI has recorded over four hundred matches through DNA data bases, helping solve numerous crimes.
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    As valuable as this system is, it is not being utilized effectively. The problems with the current system include backlog and jurisdiction. The FBI estimates that there are five hundred forty thousand DNA samples that have been collected, but still need to be analyzed. In my state of Rhode Island, the DNA collection began only a little over a year ago, but already there is a backlog of a hundred samples.

    Our bipartisan bill, which was crafted with input from organizations including the FBI and the ACLU, would address this backlog problem and ensure that more crimes will be solved through the matching of DNA evidence. The bill does two critical things.

    First, it provides thirty million dollars in grants to eliminate the backlog of the one hundred thousand DNA samples that states have collected but have not been analyzed.

    Second, the bill allows Federal, Military and District of Columbia law enforcement agencies to collect DNA evidence. Under current law, Federal Courts and the local courts of the District of Columbia do not have this ability. The Federal Courts and the District of Columbia have indicated their support for the ability to conduct testing as states do.

    Recently, Congress has been very active on the DNA backlog issue. The Senate has a bipartisan bill on this subject, there are two other bills on this issue in the House of Representatives, language was included in the Senate version of the Juvenile Justice bill, and the appropriators included thirty million dollars for backlog needs in last years Commerce-Justice-State bill. I strongly feel that HR 2810, however, is the most effective piece of legislation on this topic because it has several provisions to guarantee civil liberties, limits the use of DNA for non-forensic purposes and carefully defines the crimes for which DNA is tested.
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    The main sponsors of HR 2810, Mr. Chabot, Mr. Visclosky, and myself , worked extensively with the ACLU to address many of their concerns, while taking our underlying model for the bill from the FBIs recommendations and a bipartisan Senate bill by Senators Dewine and Kohl. And for the Members information . . . I have enclosed with my testimony a letter from Congressman Visclosky regarding the bill.

    HR 2810 is different from other pieces of legislation in many important areas. First, regarding the scope of the bill, HR 2810 deals with both the backlog issues and also the need to allow Federal, Military and the District of Columbia agencies to collect DNA evidence . . . some others bills do not. Secondly, regarding the funding stream, HR 2810 is different than some other bills, because all grant money goes directly to the States . . .

    This is a critical component of the bill because it allows states to evaluate their local needs and determine the most effective way to reduce the backlog. The power remains with the states to determine if they want to do this in their own crime labs or in private labs, rather than becoming an FBI decision. Third, regarding the definitions and privacy concerns in the bill, HR 2810 has several provisions which make it attentive to civil liberty issues, while the others are more controversial here. HR 2810 has a tighter definition for qualifying offenses—those crimes for which a DNA sample can be collected. HR 2810 makes this standard ''serious violent felony'' rather than the looser ''crime of violence'' that is in some legislation.

    Furthermore, the bill does not include samples from juveniles adjudicated delinquent, as some legislation does. Juvenile adjudications are not considered the same as criminal convictions under most recording and privacy areas. Therefore, they should not be included within a permanent database of criminal convictions. In my opinion, not excluding juveniles would be an enormous stumbling block for this legislation.
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    I would like to note, that HR 2810 includes specific language that allows a defendant access to DNA samples and analysis to establish their innocence. I was notified by legislative counsel that HR 2810's language was sufficient to allow such access. I am aware the ACLU, however, has concerns about this language and would like to see it changed to allow persons with an interest in the case to have access rather than only those charged with the specific crime. Although it is not certain if this change is necessary, I want to be clear that the Congressional intent of this section is to freely allow a defendant to use DNA to establish their innocence. Again, the Senate version of DNA legislation has raised some privacy concerns and I feel that HR 2810 addresses these problems by narrowing the types of crimes covered, mandating stricter protocols for the use of DNA, excluding juvenile offenders and preventing the FBI from expanding the number of qualifying offenses.

    From my home State of Rhode Island, I have heard from lab experts and local law enforcement leaders on the need for this legislation. It is clear that law enforcement support legislation in this area. It is our job in Congress to balance this law enforcement need with the privacy needs of our citizens. Violent criminals should not be able to evade arrest simply because a state didn't analyze its DNA samples or because an inexcusable loophole leaves Federal and D.C. offenders out of the DNA data base.

    Let me conclude by saying that Congressman Chabot, Congressman Visclosky and myself have worked diligently with the FBI and civil liberty groups to develop a bill that will maximize the crime fighting potential of CODIS while insuring that basic privacy rights are protected. Because of the bill's attentiveness to these needs, I strongly feel that it can be the bill that passes the House of Representatives. We have the technology to revolutionize law enforcement and forensic science and the key to unlock the door of unsolved crimes . . . we have to use this capacity and make these goals a reality. I look forward to the testimony of all of today's panelists to further explain the impact of these varying bills and the need for this type of legislation. And again, I want to thank the Committee and my fellow panelists for their work on this issue.
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Congress of the United States,
House of Representatives,
Washington, DC, March 21, 2000.
Hon. BILL MCCOLLUM, Chairman,
Subcommittee on Crime,
Committee on the Judiciary,
House of Representatives, Washington, DC.

Hon. ROBERT SCOTT, Ranking Member,
Subcommittee on Crime,
Committee on the Judiciary,
House of Representatives, Washington, DC.

    DEAR MR. CHAIRMAN AND RANKING MEMBER SCOTT: I write in support of H.R. 2810, the Violent Offender DNA Identification Act. I appreciate having the opportunity to be heard on this issue.

    Introduced by Representative Kennedy, H.R. 2810 is bipartisan legislation that authorizes the Federal Bureau of Investigation to assist state efforts in updating the national DNA database, Combined DNA Index System (CODIS), in order to further identify and apprehend criminals. CODIS was originally created in 1994 and now includes more than 100,000 criminal DNA profiles. However, the FBI estimates that it has a backlog of more than 500,000 records. H.R. 2810 would assist the FBI in eliminating this backlog by providing federal grants over two years to the states. In addition, this bill would authorize the collection of DNA samples from federal, military and District of Columbia prisoners who have been convicted of serious violent felonies, burglary, and certain sex crimes. Finally, this legislation requires the automatic expungement of DNA records for those individuals who have had their convictions overturned.
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    I fully understand that several other similar initiatives have been introduced in both Houses of Congress. While I remain open to debate on the issue, I am a cosponsor and supporter of H.R. 2810 for several reasons. First, the FBI has currently recorded over 400 matches using the limited resources of CODIS, helping to solve numerous crimes. By eliminating the existing backlog, law enforcement officials would have one more vital tool in fighting crime. Second, all 50 states already have active criminal DNA database systems in place. This legislation would merely strengthen their efforts. Finally, with the cooperation of the ACLU, H.R. 2810 provides stringent privacy protections by limiting the scope of crimes that would be admissible for CODIS, limiting entries to convicted individuals, and eliminating access to juvenile offender's records.

    Thank you again, and I look forward to future discussions on this important issue.

Sincerely,
Peter J. Visclosky, Member of Congress.


    Mr. CHABOT. Thank you, Congressman Kennedy, and I thank all the members of the panel for their testimony this afternoon.

    It has generally been the tradition of this committee not to question members, and I have consulted with the ranking member, and he has no questions, and I have no questions.
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    Do any other members have any burning issues they would like to question the panel on?

    [No response.]

    Mr. CHABOT. If not, we want to thank all of you for your testimony this afternoon, and we will move to the second panel.

    Thank you.

    Mr. CHABOT. Our second panel includes, first, Dwight Adams, who is Deputy Assistant Director of the FBI for its Laboratory Division. He joined the FBI in 1983 and has held positions in the laboratory as section chief for Forensic Science Research and Training Center and chief of its Scientific Analysis Section. An FBI Special Agent, he has also served as supervisor of the Interstate Theft Squad and Multi-Agency Interstate Theft Task Force in the FBI's Newark Division and also in the Bureau's Memphis Division and its Washington Field Office, working primarily on violent crime cases. He was the first FBI agent to testify in court regarding DNA analysis, and he has ultimately testified over 130 times for both the prosection and the defense. He received his Ph.D. from the University of Oklahoma in 1982.

    Our second witness on this panel is David G. Boyd. He has served as Director of the Office of Science and Technology at the National Institute of Justice since 1992 and as Deputy Director of NIJ since 1997. As such, he oversees the single largest law enforcement and corrections technology development activity in the United States. His office manages research and development programs in every facet of technology affecting law enforcement and corrections, including the forensic sciences, and he directs the DNA and Forensic Laboratory Improvement Programs. Dr. Boyd also serves on the White House's National Science and Technology Council and the National Security Council Interagency Working Group on Weapons of Mass Destruction. Before joining NIJ, Dr. Boyd retired from the U.S. Army, where he won the Bronze Star and the Purple Heart. He holds four university degrees, including a doctorate in decision sciences.
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    We welcome both of the witnesses on the second panel this afternoon, and we will start with Dr. Adams.

STATEMENT OF DWIGHT E. ADAMS, DEPUTY ASSISTANT DIRECTOR, FORENSIC ANALYSIS BRANCH, FEDERAL BUREAU OF INVESTIGATION, WASHINGTON, DC

    Mr. ADAMS. Thank you, Mr. Chairman, and thank you, members of the committee, for this opportunity to appear and discuss with you the FBI laboratory's efforts in DNA analysis and in particular the Combined DNA Index System.

    I have prepared a written statement, and I would ask that that written statement be made a part of the record.

    Mr. CHABOT. Without objection.

    Mr. ADAMS. Thank you.

    I would also like to summarize that written statement by using images projected on the screen, if I may.

    Mr. CHABOT. Absolutely.

    Mr. ADAMS. Thank you.
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    Mr. Chairman, this is a photograph of a newspaper article of Kirk Bloodsworth. Mr. Bloodsworth was convicted of rape and murder in Maryland and sentenced to death. That conviction was overturned, and he was again convicted, but this time sentenced to life. It was 9 years later that the evidence from this case was sent to the FBI laboratory, and we were able to conduct DNA testing on that evidence.

    That testing showed that Mr. Bloodsworth could not have committed that particular crime. The day after the Maryland Attorney General's Office received our results, Mr. Bloodsworth was released from prison. This photograph shows Mr. Bloodsworth at the press conference on the day he was released.

    I think this case illustrates the power of the DNA technology.

    In 1988, the FBI began doing DNA testing. At that time, we were using the RFLP procedure illustrated on the left panel. This was a very lengthy process, one that would take about 6 weeks to conduct, and one that would require a considerable amount of sample from the evidence. However, it was still a very powerful technology, as you can see from the panel on the right, the DNA test did in fact point to the guilty and exonerate the innocent. In fact, 25 percent of the cases that we have worked in the FBI laboratory—approximately 20,000 total cases—have resulted in the exclusion of the suspect.

    The process on the left, RFLP, took about 6 weeks to conduct, as I mentioned, and we were looking at six different sites of the DNA molecule.

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    Here recently, however, we have switched to a new technology. This technology is known as short tandem repeats. This is a very fast technology compared to RFLP. This technology takes just a few days. It can be done on very small samples and samples that are partially degraded. This technology has allowed us to be much faster in our analysis. The new national standards for DNA technology have now become the short tandem repeats. Instead of just looking at six sites now, we look at a total of 13 sites.

    This new national standard was not just promulgated by the FBI but rather was a consensus of State and local laboratories across the Nation.

    This begs the question, then—why the backlog? After all, we are now using a faster technology, STRs. In 1988 when the FBI began, we were the only public crime laboratory using DNA technology. Now there are over 100 public forensic DNA testing laboratories. Again, why the backlog?

    That question can be answered in this slide. First of all, DNA technology is used now in more cases than ever before, but not just current cases, as was the example with Mr. Bloodsworth. This technology is now suitable for the analysis of cases that are very old. Also, it is a very sensitive methodology. This technology, STRs, can now be performed on samples where you cannot even see the stain. So the opportunity to get results is so much greater now than ever before.

    I will give you one example. Cigarette butts or even envelopes or stamps, we can now produce DNA profiles from those samples because of the saliva on them, whereas the older technology of RFLP would never have allowed that.
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    Convicted offender samples are also an issue in this backlog, not only the old samples that have been collected that now have to be reanalyzed using the new technology, but also the new one.

    Then, finally, several States are in the process of expanding their State legislation, which also requires additional samples to be tested.

    The Combined DNA Index System, otherwise known as CODIS, contains three general indices. I will really only address the first two. The first one is the convicted offender index, that index that contains the DNA profiles for those samples that have been collected from the States. The forensic index is the index that contains the DNA profiles from cases that have been worked around the Nation.

    This information is protected physically, technically, and administratively, and the information in CODIS, the information on the DNA samples, is relatively small in nature. It only contains the agency identifier, the specimen number, the DNA profile itself, and the name of the personnel who performed the task.

    The architecture of CODIS, of the 109 laboratories in 43 States, looks like this. It connects the local labs through their State and the State labs through the national DNA index system, so that a laboratory in Tampa, Florida can work an unsolved rape case, compare that to their convicted offender index or their case index in Florida, if they do not get any matches can go beyond that and look at all indices across the Nation.

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    CODIS, however, is still just a pointer system. That is not where it ends. Once a match is made, the laboratory still has to go back and perform DNA testing to confirm that DNA hit.

    Although this slide is fairly busy, I will just point to the very end, under 1999. You can see that over 700,000 convicted offender samples have been collected; a little over half have been analyzed. However, this is a little bit misleading because many of those that are in the analyzed portion have been analyzed under the old system; they still have to be reanalyzed under the new STR system.

    Mr. WEINER. Why is that?

    Mr. ADAMS. The national standard for DNA technology now is utilizing STR analysis. Many of the samples that are in CODIS now were analyzed under the old RFLP system. The two are not compatible.

    Mr. WEINER. You cannot compare them.

    Mr. ADAMS. You cannot compare results, no, sir.

    This slide illustrates the same thing. Again pointing you to 1999, over 40,000 cases collected, around 37,000 analyzed—but again, many of those analyzed were analyzed under the old system.

    ''Investigations aided'' is the process that we use to see how successful we have been. We have had over 1,000 cases or investigations aided because of CODIS in 24 different States. I will point you to three different States—Florida, Illinois, and Virginia. Those three States account for over half of the investigations aided and, simply because those three States have poured the resources into the DNA process, have come on board very quickly, very deliberately, and have been key users of the CODIS system. If you use it, it is going to work and provide a significant return.
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    All 50 States, as has already been pointed out, have enacted legislation, but the mission has not quite been accomplished. That is why the ''D'' is missing in this slide. The ''D'' stands for the District of Columbia, the military, and Federal offenders that have not yet been authorized for collection. Once we get that authority, we will be looking at a total of over 27,000 convicted offender samples to analyze 20,000 from the existing inmate population of Federal convicted offenders, and 7,500 from new convictions annually.

    In summary, Mr. Chairman, these three points need to be repeated: We currently lack authority for collection of samples from Federal offenders. We have a backlog of unknown subject cases. And we have a backlog of convicted offender samples across the country.

    You have heard and will hear throughout today's testimony of a need for increased budget, a need for increased facilities and personnel. You will even hear about the dissatisfaction of the proposed legislation on what agency should control the moneys.

    But I do not want us to lose focus on the real problem, and I would like to put a name on that real problem. His name is Bill Showalter. Bill is a friend of mine. Several months ago, he lost his two granddaughters when they were raped and murdered in the State of Virginia. Every time I see Bill, I am reminded of the fact that we have not solved that case. I am reminded of the fact that there is DNA evidence in that case, there is DNA evidence that can be compared to these samples. But every time I see Bill, I am reminded that we have not done all that we can do. I am reminded of the fact that not all convicted offenders are in the CODIS database; not all the unknown subject cases are in the convicted offender database.

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    So I do not want to lose the real focus in this issue, and that is of the victims. DNA has the ability to reach the full potential if we provide the resources to accomplish these missions.

    Thank you, Mr. Chairman.

    Mr. CHABOT. Thank you, Dr. Adams.

    [The prepared statement of Mr. Adams follows:]

PREPARED STATEMENT OF DWIGHT E. ADAMS, DEPUTY ASSISTANT DIRECTOR, FORENSIC ANALYSIS BRANCH, FEDERAL BUREAU OF INVESTIGATION, WASHINGTON, DC

    On behalf of Louis Freeh, Director of the Federal Bureau of Investigation, we appreciate the opportunity to share with this Committee an update on the Bureau's activities relating to forensic DNA analysis and more specifically, the Combined DNA Index System or CODIS and our National DNA database.

    For a brief historical perspective, toward the end of the 1980's, the Laboratory Division convened a group of Federal, State and local forensic scientists to establish guidelines for the use of forensic DNA analysis in laboratories. This group, know as the Technical Working Group on DNA Analysis Methods or TWGDAM, not only developed the guidelines which formed the basis for our national quality assurance standards but they also proposed the creation of a national DNA database for the storage and exchange of DNA profiles developed from crime scenes. This proposal formed the genesis of the development of our CODIS program—software that enables Federal, State and local laboratories to store and compare DNA profiles electronically and thereby link serial crimes to each other and identify suspects by matching DNA from crime scenes to convicted offenders.
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    How exactly does CODIS work? For example, a sexual assault is committed and an evidence kit is collected from the victim. A DNA profile of the perpetrator is developed from the sexual assault evidence kit. If there is no suspect in the case or if the suspect's DNA profile does not match that of the evidence, the laboratory will search the DNA profile against the convicted offender index. If there is a match in the convicted offender index, the laboratory will obtain the identity of the suspected perpetrator. If there is no match in the convicted offender index, the DNA profile is searched in the forensic or crime scene index. If there is a match in the forensic index, the laboratory has linked two or more crimes together and the law enforcement agencies involved in the cases are able to pool the information obtained on each of the cases.

    One of the underlying concepts behind CODIS is to create a database of the states's convicted offender profiles and use it to solve crimes for which there are no suspects. Recognizing this, as early as the late 1980's, states began to enact laws that required that offenders convicted of sexual offenses and other violent crimes provide DNA samples. These DNA samples were to be analyzed and entered into State DNA databases. As you know, all fifty states now have such DNA database laws. All fifty of these laws cover offenders convicted of sex offenses. Over half of these state laws also include offenders convicted of other violent crimes—such as murder, manslaughter, arson, kidnaping, robbery. Six states now cover all offenders convicted of a felony offense and proposals are pending in at least five other states to expand their databases to all felony offenders. See Attachment A—Chart of Qualifying Offenses. Unfortunately, there is currently a gap in achieving true national coverage since there is no express statutory authority for the collection of DNA samples from Federal offenders, military offenders and offender convicted of crimes committed in the District of Columbia. And I will address this point later in my remarks.
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    CODIS began as a pilot program in 1990 with a dozen participating State and local laboratories. Today, CODIS is in over 109 laboratories across the nation representing 43 states and the District of Columbia.

    Is CODIS successful? Our primary method of gauging the effectiveness of the CODIS program is the number of investigations it assists by either identifying a perpetrator or by linking serial crimes. Thus far, CODIS has assisted in over 1,100 investigations in 24 states. See Attachment B—Investigations Aided.

    We congratulate New York State for achieving their first DNA database hit last week. This CODIS hit solved a murder case of a young woman 22 years of age that occurred in 1979. Apparently, the Mount Vernon Police Department recently established a cold case squad, and at the request of the victim's family, submitted evidence from the old homicide to the crime laboratory. This evidence matched the DNA profile of an offender, Walter Gill, whose DNA sample had been taken in December when New York's expanded DNA law took effect. Mr. Gill is currently serving 10 to 20 years for robbery—an offense added to the New York law as of December 1, 1999.

    While all 50 states have legislation authorizing the collection of DNA samples from categories of convicted offenders, there is also Federal legislation authorizing the Director of the Federal Bureau of Investigation to establish a national DNA identification index. Contained within the Violent Crime Control and Law Enforcement Act of 1994 was the DNA Identification Act of 1994. This DNA Act has several important objectives—first, creation of a DNA Advisory Board to recommend quality assurance standards to the FBI Director; second, establishment of a national DNA identification index subject to quality assurance and privacy requirements; and third, funding for the CODIS program and for State and local laboratories to enhance or expand their DNA testing capabilities.
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    The DNA Advisory Board, authorized by the DNA Act, has been in existence for over five years and has recommended quality assurance standards for both forensic DNA laboratories and convicted offender DNA databasing laboratories. The FBI Director has issued these quality assurance standards as national standards for CODIS and participation in the national DNA index. Compliance with these quality assurance standards is also required for laboratories receiving Federal funding for DNA purposes.

    The national DNA identification index, authorized by the DNA Act, has been in operation since October, 1998. Today, there are a total of 43 laboratories representing 24 States participating in the national index system. See Attachment C—NDIS Participating Laboratories. In preparation for the national index, the Department of Justice filed a Privacy Act notice announcing the new system of records that would be contained in the National DNA database. Significantly, it should be noted that the DNA records in the National DNA database are protected from unauthorized access through administrative, physical and technical safeguards. For example, DNA records in the National database contain the following information only: an agency identifier for the agency submitting the DNA profile; the specimen identification number; the DNA profile; and the name of the DNA personnel associated with the DNA analysis. It is also important to note that the DNA profiles generated according to national standards do not reveal information relating to a medical condition or disease. The Short Tandem Repeat (STR) core loci selected for use in CODIS were specifically selected as law enforcement identification markers because they were not directly linked to any genetic code for a medical condition.

    The DNA Act also specifies the type of information that may be maintained in the National DNA database as well as disclosure requirements on those participating in the National database. Here, we would be remiss if we did not address concerns raised by privacy advocates that the DNA data and/or DNA samples may be used inappropriately or for unauthorized purposes. The DNA Act explicitly defines as follows who can access the DNA data and DNA samples in the National DNA database and for what purposes:
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(a) to criminal justice agencies for law enforcement identification purposes;

(b) in judicial proceedings, if otherwise admissible pursuant to applicable statutes and rules;

(c) for criminal defense purposes, to a defendant who shall have access to samples and analyses performed in connection with his/her case; and

(d) if personally identifiable information is removed, for a population statistics database, for identification research and protocol development purposes, or for quality control purposes. 42 U.S.C.A.§14132(b)(3).

    Significantly, the DNA Act provides that access to the National database is subject to cancellation if the quality control and privacy requirements are not met. Compliance with these disclosure and quality assurance criteria are also required as a condition of receiving Federal funds under the Bureau of Justice Assistance' Byrne Grant Program and the National Institute of Justice's Forensic DNA Laboratory Improvement Grant Program.

    Another frequently espoused privacy concern is that some state laws appear to permit more access than that authorized in the DNA Act. Our review of the state DNA database laws indicate that 46 of these laws limit access to these DNA records, either by designating them as confidential or private or specifying authorized purposes similar to the DNA Act. While we would not disagree that some state laws appear to grant more access to the DNA data in their databases, at least half of the states contain provisions that are more restrictive than the DNA Act. And over 60% of the state laws (32 states) contain provisions that penalize the unauthorized disclosure of DNA data and/or DNA samples. Regardless of the specific provisions in state laws, states receiving Federal funding or participating in the National DNA database, and these two categories encompass all 50 states, certify their compliance with the limited access provisions in the DNA Act.
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    Now turning to the legislative proposals on DNA pending before this Subcommittee, to ascertain the capabilities of the forensic laboratories across the county, the FBI Laboratory has collected data annually from our CODIS sites. Based upon the information reported, it was apparent that the State and local forensic laboratories did not have the current capacities to analyze all the DNA samples collected from the convicted offenders, especially in states where they were collecting retroactively (in other words, collecting from incarcerated offenders or offenders on supervised release as of the law's effective date) or from offenders on probation and parole. See Attachment D—Convicted Offender Samples Collected to date. Obviously, it is important to collect from the retroactive and supervised population of offenders since they either will be shortly released into the community or they are already serving the remainder of their sentences in the community. In addition to these convicted offender samples, it was also apparent that the State and local forensic laboratories did not have the present capabilities to analyze all the biological evidence submitted to them by the law enforcement agencies. Many laboratories would prioritize these cases based upon whether a suspect has been identified and if a trial date was set, leaving those cases for which there was evidence but no identifiable suspect unanalyzed. This last group—cases without suspects—is what CODIS was specifically designed to help solve.

    During the past decade, much of the country's attention was focused on obtaining the authority to collect samples from convicted offenders. To that goal, we acknowledge Senator DeWine and his State Identification System grant program which required, as a condition of eligibility, that a state have a law requiring the collection of a DNA sample from convicted sex offenders. Realizing the potential of this DNA technology, over half of the states have already returned to their Legislatures to expand the scope of their original DNA database laws. And also during this time, legal challenges to these laws have worked their way through the Federal and state court systems in 16 states with the result that each of these state laws has ultimately been upheld as constitutional. Our one remaining impediment to achieving truly national coverage for the National DNA database is the lack of express legislative authority for the collection of DNA samples from offenders convicted of federal crimes, military crimes and crimes committed in the District of Columbia. There is no reason why offenders convicted of crimes under the Federal, military or D.C. Codes should be afforded the opportunity to escape detection if they have also committed crimes under state jurisdiction. The FBI Laboratory has benefitted from the experiences of the states as they have implemented their DNA laws and is eager to close this gap in national coverage.
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    In studying those states where CODIS appears to be most effective, we have identified several factors that contribute to a successful DNA database program. First is enactment of a comprehensive DNA database law that covers the retroactive and supervised offender populations. To their credit, all 50 States have enacted laws authorizing the collection of DNA samples from certain categories of convicted offenders. We hope that the federal, military and D.C. offenders will be addressed by the pending Federal legislation. Second, ensure that DNA samples are collected from all eligible offenders and that those samples are analyzed and entered into CODIS. We know from our annual CODIS survey that the majority of states' analyses efforts are unable to keep pace with the collection of these convicted offender samples. Convicted offender samples, unlike casework, have been shown to be more amenable to automation and thus high throughput so that the per sample analysis costs of these samples is significantly less than casework samples. We would expect that the backlog reduction assistance authorized in current and pending Federal legislation would correct this imbalance and enable the states to have these samples analyzed and entered into CODIS so that if one of these convicted offenders reoffends, he/she will be identified for that first offense.

    Third, and equally as important as the analysis of the convicted offender samples, is the analysis of the biological evidence collected from crime scenes, regardless of whether a suspect has been identified in that case. A large national database containing the DNA profiles of convicted offenders alone will not solve crimes. To maximize the potential of DNA as a law enforcement investigative tool, Federal, State and local forensic laboratories should develop the capacities to analyze all the cases (containing biological evidence) submitted to them. Here again, the additional funding contained in the pending Federal legislation should permit the development of such in-house capacities.
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    And fourth, compatible analysis methods must be used for both convicted offender and casework samples. With the acceptance of the 13 core STR loci as the national standard, this final factor for success has been institutionalized. To ensure the integrity of the National DNA database and the protection of privacy interests, we suggest continuation of the requirement that State and local laboratories receiving Federal funding comply with these national standards in accordance with the DNA Identification Act of 1994.

    The FBI Laboratory is committed to the support of the CODIS program and will continue to work with State and local forensic laboratories to achieve the full potential of this investigative tool.

    Again, we appreciate the opportunity to appear before this Subcommittee and provide this update on CODIS and the National DNA database.

FBI LABORATORY'S FIRST COLD HIT

    The FBI Laboratory's first cold hit in the National index involved six sexual assault cases that the Laboratory had analyzed for the District of Columbia. The Laboratory linked these sexual assaults to one perpetrator, although still unknown. DNA profiles from several sexual assault cases submitted by the Florida Department of Law Enforcement were linked in the National index to the six D.C. sexual assault cases. A few months later, the Florida Laboratory identified a individual involved in a drug related shooting for these sexual assault cases—and, in turn, solving the six D.C. sexual assault cases. As a footnote, three additional sexual assault cases analyzed for D.C. were linked to this same individual. The CODIS system solved nine D.C. and three Florida rapes.

Table 1


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ATTACHMENT B

65302a.eps

ATTACHMENT C

65302b.eps

ATTACHMENT D

Table 2


    Mr. CHABOT. Dr. Boyd?

STATEMENT OF DAVID G. BOYD, DIRECTOR, OFFICE OF SCIENCE AND TECHNOLOGY, NATIONAL INSTITUTE OF JUSTICE, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Mr. BOYD. Mr. Chairman, members of the subcommittee, I appreciate this opportunity to discuss DNA identification technology and the bills pending before the subcommittee.

    Let me start with an illustration of one of the current problems with the system. About a year ago, a woman in Miami was brutally raped and murdered. A DNA profile was developed from crime scene evidence, but when that profile was run through the State DNA system, it produced no match. Three months later, another woman was brutally raped and nearly beaten to death. Michael Everett was arrested on the second charge. Because of similarities between the two crimes, detectives took Everett's DNA profile and compared it to the crime scene evidence from the first case. This time, they found a match.
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    No match had been obtained after the first crime, despite the fact that Everett's DNA profile was in the State database. This is an example of the problem in the two systems. This happened because the more advanced DNA technology, PCR–STRs, was used in analyzing the crime scene evidence, and Florida had not yet been able to reanalyze its convicted offender samples using that technology.

    There are about 250,000 such samples across the Nation. Hence, Everett was not apprehended until he attacked his second victim. This occurred despite the fact that Florida is one of the most successful and efficient States in the country in using the DNA database to solve crimes.

    The problems illustrated by this case are pervasive. DNA is used to solve crimes by analyzing the DNA found in crime scene evidence and then by matching it to the DNA profiles of convicted offenders in State and national databases. The effectiveness of this technology requires both timely analysis of convicted offender DNA samples and timely analysis of crime scene samples. However, neither is currently possible on a consistent basis.

    The State laboratories are now struggling with an enormous backlog of convicted offender samples that have not been analyzed at all, or that need to be reanalyzed with more current technology. The number of convicted offender samples now requiring analysis is about 700,000. Until this situation is corrected, the backlogged samples are useless in solving crimes.

    Ironically, we have the technological capability to rapidly solve such crimes as rape and homicide in many cases, but we lack the laboratory infrastructure to adequately implement that technology. As the Everett case illustrates, this imposes a tragic cost.
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    The administration has accordingly requested $30 million over 2 years for an assistance program to help the States clear their backlogs of convicted offender samples. Congress has already provided the requested $15 million for fiscal year 2000. The National Institute of Justice is administering this existing program and will shortly be making the initial grants. We expect the initial round of funding will result in 230,000 samples being analyzed and entered into the system.

    All three bills before the subcommittee authorize assistance to the States to reduce the backlog of convicted offender samples. Since this program already exists, relatively simple legislative provisions would be adequate to authorize the continuation of the program.

    However, we do recommend one important change in the current program. For reasons detailed in my written statement which I have already submitted to you, NIJ should be able to give the States vouchers that they could redeem at approved laboratories to analyze their samples, instead of providing grant funds directly to the States. The greater efficiency of the voucher approach would allow some 20 to 30 percent more samples to be analyzed with the same funding.

    The other side of the backlog problem is unanalyzed crime scene samples. Here as well, existing shortfalls are severe. For example, a recent study estimated that over 180,000 rape kits that have not been analyzed for DNA are sitting in evidence lockers throughout the country, and we are not sure about other unanalyzed evidence.

    There are crimes waiting to be solved, but existing laboratory capacity falls far short of meeting the need for timely DNA analysis in this area. Delay in analyzing this evidence leaves criminals at large to commit more crimes and can permanently bar the prosecution of crimes where the statute of limitations expires before the offender is identified.
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    H.R. 3375 and H.R. 3087 address this problem, authorizing assistance to the States to reduce the backlog of unanalyzed crime scene samples. We strongly endorse this proposal and look forward to working with the sponsors and the subcommittee in developing the most effective formulation for such a program.

    To resolve the differences in assignment of responsibilities for the program in these two bills, we recommend amending the proposed bills to provide that the Attorney General develop and administer the program in consultation with State and local representatives. This will provide flexibility to utilize the capacities and resources of NIJ, the FBI, and other DOJ components most effectively to assist the States.

    The bills before the subcommittee also address a significant gap in the DNA identification system which you have already heard about, and that is the lack of collection of Federal military and D.C. offenders.

    H.R. 3375 and H.R. 2810 contain provisions to bring those offenders into the system and authorize the funding which will be needed for that purpose. We strongly support this reform but recommend certain changes in the formulation of the proposal. The authority to collect samples should not be confined to limited offense categories set by statute. Rather, the offense coverage question should be addressed in implementing regulations. This would ensure adequate coverage most effectively and would allow adjustments to the covered categories in light of developing experience.

    We also have concerns about certain provisions in the bills requiring the expungement of information from the national DNA identification index or State databases. We recommend that these provisions not be included in the legislation.
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    In sum, the bills before the subcommittee address three critical issues—backlog reduction for both convicted offender samples and crime samples; the incorporation of Federal, military, and D.C. offenders into the DNA identification system; and provision of the needed funding for these purposes. The subcommittee's favorable action on these proposals will add——

    Mr. SCOTT. Excuse me, Mr. Boyd. Could you state the first one again, please?

    Mr. BOYD. The first thing that it addresses?

    Mr. SCOTT. The three things.

    Mr. BOYD. The first one is backlog reduction, and that is for both convicted offender samples and crime scene samples. The second one is the incorporation of Federal, military, and D.C. offenders into the DNA identification system; and the third one is provision of the needed funding for these purposes.

    The subcommittee's favorable action on these proposals will add immeasurably to the justice system's effectiveness in apprehending offenders and protecting the public from crime.

    I would be pleased to answer any questions the subcommittee may have.

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    [The prepared statement of Dr. Boyd follows:]

PREPARED STATEMENT OF DAVID G. BOYD, DIRECTOR, OFFICE OF SCIENCE AND TECHNOLOGY, NATIONAL INSTITUTE OF JUSTICE, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Mr. Chairman, Ranking Member Scott, and Members of the Subcommittee:

    I appreciate the opportunity to present the views of the Department of Justice concerning H.R. 2810, H.R. 3087, and H.R. 3375. These bills are generally designed to extend and strengthen the DNA identification system. The major elements of the proposals include: (1) authorizing assistance to the states to clear their backlogs of unanalyzed DNA samples, (2) providing necessary assignments of responsibility and grants of authority to collect DNA samples from federal, military, and D.C. offenders, and (3) authorization of appropriations to federal agencies for related costs.

    The Department of Justice and the Administration strongly support the objectives of this legislation. We commend the leadership the sponsors of these bills and the Subcommittee have shown in addressing these important issues.

    In my testimony today, I wish to emphasize the following major points:

    First, there currently exists at the state level a backlog of several hundred thousand unanalyzed DNA samples that have been collected from convicted offenders. These samples are worthless in solving crimes until they are analyzed and the resulting information is entered into state DNA databases and the national DNA identification index. We have accordingly included in our budget requests $30 million over a two-year period for assistance to the states in clearing this backlog. Congress has in fact provided the requested $15 million for FY2000, and we are about to make the initial grants under this existing program.
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    The bills pending before the subcommittee contain generally similar authorizations of assistance to the states for backlog reduction, but they were formulated prior to the establishment of the existing program. Hence, their provisions are in some respects inconsistent with the current program's design and administration. For example, the program established under the appropriations legislation is administered by the National Institute of Justice in consultation with the FBI—but the bills' provisions regarding the program's administration are inconsistent with this assignment of responsibility. The Subcommittee should accordingly take care that the formulation of the legislative provisions enhance and ensure the completion of the existing program, rather than incorporating inconsistent features which could have the unintended effect of disrupting or interfering with the program.

    Second, there is another backlog problem at the state level—hundreds of thousands of forensic (i.e., crime scene) samples that the states have not analyzed. The use of DNA testing to solve crimes involves matching DNA in crime scene samples with DNA profiles in the convicted offender databases. Hence, the timely analysis and indexing of forensic samples is also critical in using the DNA technology to solve crimes. H.R. 3087 and H.R. 3375 address this problem by authorizing additional assistance targeted at clearing the backlog of unanalyzed forensic samples. We support the establishment of such a program, and look forward to working with the sponsors and the Subcommittee in developing the optimum design for the program.

    Third, there is a significant gap in the existing DNA identification system. All 50 states currently collect DNA samples from convicted offenders for purposes of analysis and inclusion of the resulting information in state databases and the national DNA identification index. However, there is no statutory authority for the collection of DNA samples from federal, military, and D.C. offenders. H.R. 2810 and H.R. 3375 seek to provide the necessary authority for that purpose.
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    We have a number of recommendations concerning the optimum formulation of this part of the legislation. We are particularly concerned that the authority to collect samples from federal, military, and D.C. offenders not be confined to limited offense categories set by statute. Rather, the offense coverage question would more appropriately be left to implementing regulations. The regulatory approach would more reliably ensure adequate coverage of offenders from whom samples should be collected; it would avoid litigative challenges that could otherwise be expected as to whether particular offenses are covered by statutory offense category definitions; and it would more readily allow adjustments to the covered categories in light of developing experience.

    In recommending broader authority in the area of offense coverage, we note that there are strict, statutory confidentiality rules governing the DNA identification index. These rules and other features in the design of the existing system provide strong safeguards against misuse of DNA information or other adverse effects on offenders who refrain from the commission of additional crimes. Moreover, the genetic markers used for forensic DNA testing are not associated with any known physical or medical characteristics, providing further assurance against the use of offender DNA profiles for purposes other than identification.

    We also have concerns about certain provisions in the bills which require expungement of information from the national DNA identification index and/or state databases, and recommend that such provisions not be included in the legislation.

    Fourth, the bills before the Subcommittee authorize additional funding that will be needed by federal agencies to carry out the proposed expansion of the system to include federal, military, and D.C. offenders. The Administration's FY2001 budget request includes $5.3 million and 5 positions (with recurring operating costs of $1 million annually thereafter) to carry out this reform. These funds are essential in order to carry out the proposed incorporation of federal, military, and D.C. offenders into the system.
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    Before turning to the specifics of the proposed legislation, I will briefly describe the background of the DNA identification system and prior legislative action in this area.

    The development of DNA identification technology is one of the most significant advances in criminal identification methods since the advent of fingerprinting. Recognizing the promise and importance of this new technology, Congress enacted provisions relating to DNA identification in subtitle C of title XXI of the Violent Crime Control and Law Enforcement Act of 1994. These included provisions for the establishment of a national DNA identification index, the establishment of quality assurance standards and measures, and assistance to the states in creating effective DNA identification programs. Congress further encouraged state DNA identification efforts through the enactment of section 811(b) of the Antiterrorism and Effective Death Penalty Act of 1996, which authorized grant funding for states that require convicted sex offenders to provide DNA samples. At the present time, all 50 states have enacted legislation to collect DNA samples from certain categories of offenders and to make this information available for criminal identification purposes.

    Notwithstanding the rapid development of the DNA identification system over the past several years, there are serious impediments to the full implementation of the system that require legislative attention. The expansion of laboratory capacity for the analysis of DNA samples has not kept pace with the collection of such samples from convicted offenders, resulting in a backlog of several hundred thousand DNA samples collected by the states which have not yet been analyzed. Until these samples are tested and the resulting DNA profiles are entered into the convicted offender databases, they are worthless for criminal identification purposes. Every day this situation continues is another day in which serious offenders who could have been identified through matching with DNA database information remain at large to commit further crimes.
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    The Department accordingly proposed a two-year $30 million dollar program to assist the states in reducing this backlog. As noted above, this program has been funded at $15 million for FY2000, and the Administration is requesting the same amount to continue the program in FY2001. Provisions relating to such an assistance program appear in all three bills before the Subcommittee, and the Senate last year passed similar legislation (sponsored by Senator Kohl and Senator DeWine) as part of title XV of S. 254.

    There is also a hole in the system for federal, D.C., and military offenders. In section 811(a)(2) of the Antiterrorism and Effective Death Penalty Act of 1996, Congress sought to fill this gap, authorizing the expansion of the national DNA identification index to include information on federal and D.C. offenders. However, it has not been possible to implement this decision, in the absence of statutory authority and funding to collect and analyze DNA samples from these offenders. The Department accordingly proposed new legislation to provide the necessary authority in a report submitted by the FBI to Congress near the start of 1999. H.R. 3375 and H.R. 2810 contain provisions to provide the necessary grants of authority which are similar in general design to the Department's original proposal, as does the legislation passed last year by the Senate in title XV of S. 254.

    With this much background, I will now address the specific issues raised by the bills before the Subcommittee:

I. BACKLOG REDUCTION ASSISTANCE

    Let me start my discussion of the backlog problem with a concrete example. In the early months of 1999, a woman in Miami was brutally raped and murdered. A DNA profile was developed from crime scene evidence, but running the profile through the state DNA database produced no match. Three months later, another woman was brutally raped and nearly beaten to death, and Michael Everett was arrested on the second charge. Because of certain similarities between the two cases, Everett's DNA profile was compared to the crime scene evidence profile in the first case, and was found to match. Although a DNA profile for Everett had been entered in the state database, no match had been obtained after the first crime because a more advanced DNA technology had been used in analyzing the crime scene evidence, and Florida had not yet been able to reanalyze its convicted offender samples using that technology. Hence, Mr. Everett went unapprehended until he attacked his second victim. Significantly, this occurred despite the fact that Florida is one of the most successful and efficient states in the country in using the DNA database to solve crimes.
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    More and more often, law-enforcement officers and laboratory directors are having to explain to victims that the perpetrators in their cases should have been apprehended before they were victimized, but were not because of the DNA backlog. As the foregoing example indicates, the backlog problem includes samples that need to be reanalyzed using newer technology, as well as samples that have been collected but have not been analyzed at all.

    Viewing the issue more broadly, databases at the local, state, and national levels consist of two major indices: a convicted offender index which contains the DNA profiles of individuals convicted of qualifying offenses determined by the states, and a forensic index which consists of DNA profiles developed from crime scene evidence, such as rape kits or blood found at the scene of crimes for which no suspect has been identified. To identify a person as the perpetrator of a crime in such a case, both a convicted offender sample and a crime scene sample must be analyzed, and the resulting DNA profiles must be found to match. However, in both areas—analysis and indexing of convicted offender samples and analysis and indexing of crime scene samples—serious backlog problems exist at the present time.

A. The Convicted Offender Backlog

    From the initial passage of state legislation creating DNA databases, laboratory capacity for the analysis of convicted offender DNA samples has not kept pace with the collection of those samples. The initial legislation created an immediate volume and type of offender sample analysis that state laboratories were not originally designed to perform. The inability of laboratory capacity to keep pace with the volume of samples has resulted in a backlog of hundreds of thousands of DNA samples taken from convicted offenders sitting in storage facilities in laboratories. Samples often remain in storage for years, even after a convicted offender is released from prison. If the released offender commits new crimes, the database is of no value in identifying him so long as the sample taken from him has not been analyzed and profiled in the database.
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    The dimension of this initial problem has increased because of the expansion of covered offense categories. Many states began by including only the profiles of individuals convicted of sexually assaultive crimes and homicides. Given the success of the databases, however, states are rapidly expanding their offense coverage to include more crimes, such as robbery and burglary. Several states have recently extended their databases to include all felonies. The broadened offense coverage has increased the demand for sample analysis.

    Moreover, as noted above, the backlog problem includes samples that must be reanalyzed using more automated technology, as well as those that have never been analyzed at all. When the national component of the DNA identification system administered by the FBI was originally created, an older method of analysis—''RFLP technology''—was used to profile both crime scene and offender samples. However, a newer technology—''PCR technology''—offers numerous advantages. Hence, the FBI decided to convert the national CODIS database to PCR. As a result, over 250,000 samples originally profiled and entered into CODIS need to be re-analyzed and re-entered.

B. The Forensic (Crime Scene) Index Backlog

    The development of convicted offender DNA databases now assists in the identification of perpetrators in cases in which there would otherwise be no identifiable suspect. This is accomplished by analyzing DNA derived from forensic (crime scene) samples, and matching the resulting DNA profile to the profiles in an offender database. In addition to protecting the public by solving the crime and facilitating the apprehension of the offender, this capacity to effect an early and certain identification of the perpetrator means that fewer innocent persons are subject to the stigma of investigation or potentially to the injustice of a wrongful arrest and conviction.
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    The effective utilization of this uniquely powerful tool in no-suspect cases, however, requires both a well-populated convicted offender database, and a well-populated forensic database (the latter containing DNA profiles from crime scene samples). As discussed above, the convicted offender databases are not well-populated because of the backlog of unanalyzed convicted offender samples.

    The forensic databases are also not well-populated. As with the backlog of convicted offender samples, the backlog of crime scene samples results primarily from limited laboratory capacity. Currently, forensic laboratories must prioritize their DNA cases by first analyzing DNA samples in cases which are scheduled for trial. Next in line in priority are cases in which known suspects exist, but in which the DNA must be analyzed to make an arrest, or in some cases to release a suspect who may be innocent from custody. Not until those cases are analyzed are laboratories able to address no-suspect casework or analysis of convicted offender samples.

    The backlog of forensic crime scene DNA samples prevents the prompt solution of crimes and apprehension of offenders. Moreover, the unavailability of prompt analysis for crime scene samples can make it permanently impossible to bring serious offenders to justice. If crime scene evidence is not profiled before the limitation period for prosecuting the offense expires, the opportunity is lost forever.

    A recent survey performed by the Police Executive Research Forum at the request of the National Commission on the Future of DNA Evidence indicates that in many instances police do not even submit rape kits to crime labs when they have no suspect because they believe the cases will never get analyzed. The report estimates that over 180,000 rape kits currently sit in evidence storage lockers throughout the country unanalyzed for DNA evidence. Every day, many become unprosecutable because they are time barred.
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    Another serious effect of failing to analyze and enter crime scene DNA evidence is the loss of the ''crime scene to crime scene'' match potential. Even if a perpetrator's DNA profile is not contained in the convicted offender database, the forensic (crime scene DNA) database can still ''search'' against itself. While this does not directly identify the perpetrator, it may link one or more cases together by matching the perpetrator's DNA at the various crime scenes. In these instances, agencies can share information from their individual investigations and often develop a suspect with the new collaborative information.

C. Addressing the Backlog

    The National Commission on the Future of DNA Evidence, charged by the Attorney General with the improvement of the use of DNA technology throughout the criminal justice system, has identified the elimination of the DNA backlogs as an urgent priority. In line with the Commission's recommendations, the Administration successfully requested for FY2000 $15 million supporting a two-year initiative to reduce the backlog of unanalyzed DNA samples that have been collected by the states. It is anticipated that in excess of 230,000 backlog samples can be profiled and entered into the system upon completion of the first round of funding. An additional $15 million will be requested for the second year of the program in 2001.

    The three bills before the Subcommittee all include provisions for convicted offender backlog reduction assistance. Some features of these provisions, however, are not consistent with the administration or design of the existing program, and could have unintended disruptive effects.

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    For example, the program established under our FY2000 appropriations legislation is administered by the National Institute of Justice (NIJ) in consultation with the FBI—but the pending bills' provisions would require that the FBI administer the program. NIJ is a component of the Office of Justice Programs which administers many grant programs and has scientific expertise relating to DNA identification testing and the effective administration of grants to state and local agencies in this area. To resolve the difference concerning responsibility for the program—FBI vs. NIJ—we would recommend amending the proposed bills to provide that the Attorney General is to develop and administer the program. This will provide flexibility to utilize the capacity and resources of NIJ, the FBI and other Justice Department components most effectively to assist the states.

    As a more general observation, there does not appear to be a need for detailed statutory provisions setting forth the specifications for a backlog reduction program for convicted offender samples. The program has already been funded and designed, and it is currently being carried out. Hence, relatively simple statutory provisions authorizing the continuation of the program and necessary funding for that purpose should be sufficient.

    We would recommend, however, at least one significant change in the existing program. The FY2000 appropriations language requires that funding go directly to the states. As a result, state procurement processes must be followed by the grantees in dealing with laboratories that analyze their samples. Substantial economies of scale are lost because these laboratories have to increase their price per sample to include marketing and administration costs to all 50 states, and valuable time is lost in procurement processes that should be spent actually analyzing the convicted offender samples.

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    The process would be streamlined and simplified if allocated funds were not distributed directly to the states, but rather if the states were given vouchers which they could redeem at approved laboratories that would be the direct grantees of the funding. We expect that the efficiency of a voucher system would increase the number of samples analyzed through FY2001 funds by 20–30% in comparison with FY2000.

    In addition, H.R. 3087 and H.R. 3375 provide a critical element that has not been addressed in prior legislation. As discussed above, the backlog of unanalyzed crime scene DNA samples also impedes the effective utilization of DNA identification to solve crimes. H.R. 3087 and H.R. 3375 authorize assistance to the states in addressing this problem. We would be pleased to work with the sponsors and the Subcommittee in developing the optimum formulation of such a proposal.

II. SAMPLE COLLECTION FROM FEDERAL, D.C., AND MILITARY OFFENDERS

    The Department of Justice has previously transmitted proposed legislation to Congress to provide the authorities and assignments of responsibility which are needed to collect DNA samples from federal, D.C., and military offenders. See FBI Laboratory Report to Congress: Implementation Plan for Collection of DNA Samples from Federal Convicted Offenders Pursuant to P.L. 105–229, Appendix A (Dec. 1998) (hereafter, ''FBI Report'').

    H.R. 2810 and H.R. 3375—as well as the legislation passed last year by the Senate in title XV of S. 254—contain DNA sample collection provisions for federal, D.C., and military offenders which are generally similar to the Administration's proposal. Common features of the various proposals include: (1) specification of categories of offenders from whom DNA samples will be collected through FBI regulations, (2) collection of DNA samples by the Bureau of Prisons from federal and D.C. offenders in its custody, (3) collection of DNA samples from federal offenders released under supervision by the responsible supervision agencies (i.e., federal probation offices), (4) collection of DNA samples from D.C. offenders released under supervision by the Court Services and Offender Supervision Agency for the District of Columbia, and (5) establishment by the Department of Defense of a comparable DNA sample collection system for military offenders.
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    The pending bills, however, include to varying degrees certain features that are more limited or less clear then our original proposal, and that would reduce the value of the proposed reforms or cause other problems. Our specific recommendations are as follows:

A. Samples voluntarily contributed by relatives of missing persons

    Section 5 of H.R. 3375 authorizes the expansion of the DNA identification index to include information on missing persons, including analyses of DNA samples voluntarily contributed from relatives of missing persons, and authorizes $2,835,000 for that purpose in FY2000. Section 6(b)(4) makes a conforming amendment in the list of permitted inclusions in the index (42 U.S.C.14132(a)) to include the analyses of DNA samples voluntarily contributed from relatives of missing persons.

    We support this measure, which will facilitate the identification of missing persons, and the remains of missing persons, which may be unidentifiable by other means. In fact, the FY2000 appropriation for the FBI includes $2,835,000 and five positions to develop and operate a missing persons database. Hence, this reform has already been endorsed and authorized by Congress.

B. Offense coverage

    The Department's original proposal did not impose any statutory limitation on the categories of federal, D.C., and military offenders from whom DNA samples can be collected. Rather, the pertinent categories would be specified in FBI regulations without pre-set limitations. Under this approach, the system could readily be modified in light of developing experience concerning the utility of collecting samples from particular types of offenders. If given regulatory discretion on this issue, we would expect initially to collect samples from sex offenders, violent felons, and persons convicted of burglaries, and potentially to consider additional categories at later times as warranted by practical experience or empirical findings regarding the utility of such coverage in solving crimes. The formulation of the Department's proposal follows the approach of existing law—section 811(a)(2) of the Antiterrorism and Effective Death Penalty Act of 1996—which authorizes the FBI to expand the DNA identification system to include federal and D.C. offenders, with no pre-set limits on covered offense categories.
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    The approach of the pending bills is more restrictive and regressive in comparison with existing law. Under H.R. 3375, sample collection would only be authorized for persons convicted of ''crimes of violence'' at the felony level under a particular statutory definition (18 USC 924(c)(3)). H.R. 2810 is also restrictive, limiting potential sample collection to persons convicted of ''serious violent felonies'' under the narrow definition provided in the ''three strikes'' recidivist sentencing law, together with persons convicted of certain child pornography production and burglary offenses. The potential scope of offense coverage would accordingly be narrower under the pending bills than that provided in a growing number of state systems, as well as narrower than that allowed under current federal law and under our original legislative proposal.

    The formulation of the bills on this issue may reflect a belief that the proposed new restrictions would exclude only non-dangerous offenders who have committed relatively minor crimes. However, such an assumption would not be well-founded. Child molestation offenses, for example, are not necessarily included under a restrictive statutory definition of crimes of violence. Indeed, such crimes may not even be felonies. Many sexual abuse cases involving child victims are pleaded down to misdemeanors because the victim cannot bear the additional trauma of a trial. Moreover, in some sexual abuse cases, the offense is only a misdemeanor even if the offender is fully convicted for what he did. For example, in the absence of force or threats, a prison guard who makes female prisoners submit to sexual acts or contact by exploiting his authority over them may be prosecutable only for a misdemeanor. See 18 U.S.C. 2243(b), 2244(a)(4) (misdemeanor to engage in sexual act or contact with ward); 18 U.S.C. 2244(b) (misdemeanor to engage in sexual contact without victim's permission). The collection of DNA samples from such offenders would not be allowed under the bills' restrictions.
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    In assessing the question of permitted offense coverage, it is important to understand that taking DNA samples and entering related information on offenders in the DNA identification index is a regulatory measure carried out for law enforcement identification purposes, comparable to fingerprinting or photographing. If an offender's records are included in the index, he is protected by the strict confidentiality rules in the DNA statutes (42 U.S.C. 14132(b)(3), 14133(b)–(c)), which allow information in the index to be used for law enforcement identification purposes and virtually nothing else. Moreover, the genetic markers used for forensic DNA testing were purposely selected because they are not associated with any known physical or medical characteristics, providing further assurance against the use of convicted offender DNA profiles for purposes other than identification. An offender suffers no adverse effects later in life from the inclusion of information on him in the index—unless DNA matching shows him to be the source of DNA found at the scene of another crime or crimes.

    For similar reasons, we disagree with H.R. 2810's failure to include adjudicated juvenile delinquents among the categories of persons from whom samples could be collected, and for whom information can be included in the DNA identification index. This omission would bar the collection of samples from juveniles who are adjudicated delinquent in federal proceedings, regardless of the seriousness of their conduct. Moreover, about half of the states currently do collect samples from adjudicated delinquents. Regardless of what approach is adopted for federally adjudicated juveniles, states that collect samples from juveniles should be able to enter the resulting DNA analyses and records in the national index.

    As a matter of policy, a seventeen-year-old who is adjudicated delinquent for molesting a child or committing a rape presents potentially the same future danger to public safety as an older person who commits such a crime. If he commits additional offenses later in life, the public interest in being able to solve these crimes and apprehend the perpetrator is the same, regardless of the age at which he commenced his course of criminal conduct. Of course justice systems often incorporate stronger protections of confidentiality and privacy for juveniles than for adult offenders—but all information in the DNA identification index is subject to strict confidentiality rules which ensure that no one will know about it, and the individual will suffer no adverse effects later in life, unless his DNA profile in the index matches that of DNA found in crime scene evidence. In light of these protections, we see no basis for excluding sample collection and indexing of information for juveniles who engage in conduct that would warrant such treatment if engaged in by an adult.
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    Finally, it is important to understand that the perpetrators of violent crimes frequently have varied criminal histories, including both violent and nonviolent offenses. In many cases, the DNA sample which (for example) enables law enforcement to identify the perpetrator of a rape has not been collected in connection with an earlier rape conviction, but as a result of the perpetrator's prior conviction for some other type of crime that was not intrinsically violent. See FBI Report at 15. Hence, even if the identification of violent offenders is seen as the principal focus of the DNA identification system, achieving this objective effectively requires casting a broader net. The approach of existing law and the Department's proposal, which does not impose pre-set statutory limits on covered offenses, is optimal from this standpoint.

C. Expungement

    H.R. 2810 and H.R. 3375 both contain proposed rules requiring expungement of information from the DNA index in cases where a person's conviction is reversed or expunged. We recommend against the enactment of statutory rules as proposed in these bills. As discussed above, the index is subject to strict confidentiality rules which allow use of the information for law enforcement identification purposes and virtually nothing else. By way of comparison, other records which may be useful for law enforcement identification purposes, such as fingerprint records, are normally not disposed of in case of reversal of a conviction.

    We have particularly serious concerns about the far-reaching expungement provisions of H.R. 2810, which require the automatic expungement of information from the DNA identification index in case of reversal of a conviction, and attempt to impose the same requirement on the states through a funding eligibility condition. There is no existing means for carrying out such a requirement at the federal level, and the proposed funding eligibility condition for the states would have the immediate effect of making all states ineligible for the DNA backlog reduction assistance funding. Seventeen states have no expungement provisions for DNA records. In the 33 states that currently have provisions for expungement of DNA records, all of the state laws require that the expungement process be initiated at the request of the person seeking such relief. This is necessary because laboratories that store this information would not be aware that a person's conviction has been reversed. In other words, the laboratories that house the DNA databanks and databases are generally not the central state repositories of criminal history record information and, in many cases, do not even have access to such criminal history information.
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D. Drafting of provisions relating to military offenders

    The Department's original proposal included a provision which would allow the Secretary of Defense to arrange to have DNA samples collected by the Bureau of Prisons (BOP) or federal probation offices from military offenders who are under their custody or supervision. This reflects the fact that some military offenders are housed in BOP facilities (rather than military prisons) and that military offenders who are paroled from BOP facilities are supervised by federal probation offices (rather than the military parole supervision systems). In such cases, it is likely to make more sense for BOP or the probation offices to collect the samples, rather than requiring the Department of Defense to do it directly. However, H.R. 2810 and H.R. 3375 have no corresponding provision.

    The drafters of these bills may have believed that this situation was adequately addressed by a provision that the Secretary of Defense may waive the collection of a DNA sample from an individual if another person or agency collects such a sample from the individual ''under subsection (d).'' However, the cross-referenced subsection (d) directs the Bureau of Prisons and the probation offices to collect samples from persons convicted of ''qualifying offenses,'' which are defined to include only federal and D.C. crimes. Hence, the current formulation of the bills does not include adequate grants of authority to enable BOP and the probation offices to collect samples from military offenders who come under their jurisdiction. The proposal should be amended so that this authority is clearly provided.

    As a final point of clarification, the penalty provisions in H.R. 2810 and H.R. 3375 for military offenders who fail to cooperate in sample collection should be revised. The provisions are partially unclear, referring to punishment of an individual as a violation of the Uniform Code of Military Justice. They should be revised to refer to punishment of the individual's failure to cooperate as such a violation.
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E. Other matters

    At the level of detail, there are some additional drafting issues which merit attention. For example, it is important to make it unequivocally clear that the proposed sample collection authority for federal, military, and D.C. offenders applies to the existing inmate and supervised offender populations, as well as to offenders convicted after the enactment of the legislation, and to make it clear that the agencies responsible for sample collection have the authority to specify the time and manner for collecting samples. We would be pleased to work with the sponsors and the Subcommittee in ensuring the optimum formulation of the legislation.

III. FEDERAL AGENCY FUNDING FOR SAMPLE COLLECTION AND ANALYSIS

    The Administration's FY2001 budget request includes $5.3 million and 5 positions (with recurring operating costs of $1 million annually thereafter) for FBI costs resulting from expansion of the DNA identification system to include federal, D.C., and military offenders. As noted above, this funding is essential to carry out the proposed expansion of the system.

    H.R. 2810 and H.R. 3375 authorize the following funding for the agencies that would incur additional costs as a result of the proposed expansion: (1) $6.6 million in fiscal year 2000 and necessary sums in fiscal years 2001 through 2004 for the Department of Justice, to cover both the Department's own costs and to reimburse costs incurred by the Judiciary, (2) necessary sums for the Court Services and Offender Supervision Agency for the District of Columbia (CSOSA) in fiscal years 2000 through 2004, and (3) $600,000 in fiscal year 2000 and $300,000 in each of fiscal years 2001 through 2004 for the Department of Defense.
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    The following information may be helpful to Congress in assessing the funding requirements for implementing the proposed expansion of the DNA identification system. The major costs involved are:

1. Direct Justice Department costs. The FBI will be responsible for analyzing DNA samples collected from federal and D.C. offenders. In addition, the FBI will provide sample collection kits to be used by the various agencies that will collect samples from these offenders (BOP, federal probation offices, and CSOSA). It is estimated that these costs and other costs involved in establishing and operating a database including federal and D.C. offenders will require an initial funding enhancement of $5.3 million and 5 positions, and annual recurring costs thereafter of $1 million. See FBI Report at pp. 27–28. These amounts are included in the Administration's FY 2001 budget request. The Bureau of Prisons will also have some direct costs in collecting samples from prisoners in its custody. However, it is expected that this function will be carried out by the Bureau's medical personnel, and that a separate appropriation will not be necessary for this purpose.

2. Federal probation and CSOSA costs. The federal probation offices and the Court Services and Offender Supervision Agency for the District of Columbia will incur costs in collecting samples from offenders under their supervision. As noted above, these costs will be partially defrayed through the FBI's provision of sample collection kits to these agencies. In addition, the FBI appropriation in the Administration's budget request includes $80,000 for ''contract services'' which could be used to defray other sample collection costs of the probation offices and CSOSA. See FBI Report at p. 28. However, to the extent that these agencies' other sample collection costs exceed the limited amount that may be available for this purpose out of the proposed appropriation to the FBI, additional funding will be needed for these agencies to carry out the sample collection required by the legislation. As noted above, the authorization figure in the bills is higher than the Administration's corresponding budget request ($6.6 million vs. $ 5.3 million). The difference may reflect (wholly or in part) the expectation under the bill that the authorized amount will cover the probation offices' costs as well as direct Justice Department costs.
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3. The Department of Defense. The Department of Defense (DOD) stands on a different footing from the other affected federal agencies, since it is not expected that the FBI will provide sample collection kits to DOD or analyze samples collected from military offenders by DOD. Hence, the Department of Defense will bear the full cost of sample collection and analysis in relation to such offenders. The authorizations proposed in the bills for the Department of Defense are consistent with the amounts that are expected to be needed for these purposes.

    In closing, I wish again to commend the sponsors of the legislation and the members of the Subcommittee for their attention to these important issues. Addressing the critical issues of backlog reduction; expansion of the DNA identification system to include federal, military, and D.C. offenders; and provision of necessary funding for that purpose, will add immeasurably to the justice system's effectiveness in apprehending offenders and protecting the public from crime.

    I would be pleased to answer any questions the Subcommittee may have.

    Mr. CANADY [presiding]. Mr. Scott is recognized.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Just briefly, the only new law, other than just funding, is the coverage of Federal military crimes; is that right?

    Mr. BOYD. Actually, there are two things that two of the bills cover that are not covered otherwise. One is the analysis of the crime scene samples, which is not supported under the current program. The current program funded this year only supports backlog reduction.
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    Mr. SCOTT. Okay. That is not a change in the criminal law.

    Mr. BOYD. That is correct.

    Mr. SCOTT. You just need money to do more things.

    Mr. BOYD. That is correct.

    Mr. SCOTT. Okay. And you are just asking for $30 million—did I understand that right?

    Mr. BOYD. The request for next year for the CODIS backlog reduction is another $15 million. This is for 2001.

    Mr. SCOTT. How much would it cost to eliminate the backlog if money were not an object—if you could get all the money you needed to eliminate the backlog, how much would you need?

    Mr. BOYD. The best estimate right now is that this year, we will do 230,000 with $15 million. If we are given the authority to use the voucher system, we would expect to be able to resolve about 270,000 next year, which would suggest that probably $45 million would be required to eliminate both backlogs.

    Mr. SCOTT. Are you restrained by institutional capability as much as money?
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    Mr. BOYD. Yes, sir. And there is another half of this proposal or request, and that is $15 million to continue to support what is called the Crime Laboratory Improvement Program. This improves the capabilities of laboratories—although we have now moved some 120 labs into an environment where they can process DNA. So we think that once we have eliminated this capacity—the best way to describe the backlog problem is if you think about a water hose analogy. You have a hose bringing samples to each of the laboratories. Right now, there is a huge bubble in that hose, but if we can eliminate that bubble, then we believe the State system will be able to handle the normal flow.

    Mr. SCOTT. My reaction—in the overall scheme of things in crime detection, $45 million seems fairly modest as a national number. Am I missing something?

    Mr. BOYD. I do not think so, sir.

    Mr. SCOTT. What constitutional issues should we be concerned about as we pass this legislation?

    Mr. BOYD. That is a tough question to ask a scientist and an easier question to ask a lawyer.

    Mr. SCOTT. Dr. Adams?

    Mr. ADAMS. I will tackle that one.

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    Mr. SCOTT. Okay.

    Mr. ADAMS. We have been very cautious in creating the Combined DNA Index System to be concerned about privacy issues. For example, in the type of information that is stored in the Combined DNA Index System, it does not have identifying information; it has the laboratory number that identifies the laboratory that conducted the sample. It contains the DNA profile, a number for the sample itself, and the person who actually tests the sample. But it is also restricted in who has access to it, restricted through both physical, technological, as well as administrative controls such as encryption.

    These safeguards prevent the unauthorized use of the DNA profile plus, at the very core of the DNA testing is the fact that we test portions of the DNA molecule that do not code for anything, and therefore, you cannot glean any information about the individual from the DNA profile result that you obtain other than to compare it to another sample.

    Mr. BOYD. If I can expand just a little on that, what you wind up looking at is something that is, in effect, translated into a code, so you have a long code that simply encodes those 13 pieces. You do not have what amounts to a total DNA profile of an individual. You cannot tell anything else about the individual. You can only identify the 13 markers in that code.

    And the reason it is called an index system is that the information you get from the system tells you who to call, because you now have a match, to get the rest of the information you need to follow through the investigation.

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    Mr. SCOTT. Should we be concerned about the implications of requiring it as a condition of release for people who were sentenced before the laws went into effect? We got around that in Virginia when we had parole, because they just did not get paroled. If they wanted to get paroled, they would have to leave a little sample behind, and people decided to cooperate. If you do not have parole, how do you require someone to leave a sample if they were sentenced before the laws went into effect? And you are talking about Federal——

    Mr. ADAMS. Retroactive-type sampling.

    Mr. SCOTT. Well, you have somebody in jail today, sentenced a long time ago, about to be released. How do you make them leave a sample?

    Mr. ADAMS. Some States have laws that require the retroactive sampling of those types of offenders.

    Mr. SCOTT. And there is no constitutional problem with requiring that of the Federal offenders who are in jail today that we want to cover under the bill?

    Mr. BOYD. None that has yet been adjudicated. Seventeen States have had their State laws looked at by the court system, and to this date, all have been upheld.

    Mr. SCOTT. Okay. Are we taking samples of people when they are charged, or when they are released from prison? When do you get the sample from a defendant.

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    Mr. BOYD. It varies from State to State, depending on the nature of the law, but in the vast majority of cases, it is when you are convicted. When the sample is actually taken it tends to be affected by resource availability, so it may not occur until they are released.

    Mr. SCOTT. If someone is a suspect, and you have probable cause that they have committed a crime, can you get a sample from them?

    Mr. ADAMS. That would only be at the discretion of a judge issuing a search warrant for that individual, or a voluntary sample.

    Mr. SCOTT. If you have probable cause that they have committed a crime, can you get a sample?

    Mr. BOYD. If the judge will accept that and issue the order.

    Mr. SCOTT. Okay. Again their will, you can get a sample—you can with probable cause——

    Mr. BOYD. You can get a voluntary sample.

    Mr. SCOTT. An involuntary sample?

    Mr. BOYD. You would require a court order.

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    Mr. SCOTT. Okay. If they are found not guilty, what happens to that sample?

    Mr. BOYD. As I understand it, in almost every State—and it may be in every State—you cannot demand the sample unless you are actually convicted, except in a case where an investigation is used for direct evidence, and then——

    Mr. ADAMS. Well, first of all, those samples would not be a part of the CODIS system. The CODIS system is only for convicted offenders. That sample would only be compared to the particular case in which it was requested.

    Mr. SCOTT. And what happens to that evidence after they are found not guilty?

    Mr. ADAMS. That evidence is returned to the agency that collected it.

    Mr. CANADY. Thank you.

    Mr. Weiner?

    Mr. WEINER. Thank you, Mr. Chairman.

    Dr. Adams, could you repeat something you said in your testimony that is not, I do not think, in your printed testimony. Did you say that 25 percent of the Federal DNA tests that you do result in the exoneration of the person who is tested?
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    Mr. ADAMS. Yes, sir. The very first one hundred cases that we ever worked in the FBI laboratory, beginning in 1988, showed that 25 percent of those resulted in an exclusion of the suspect. Now, after about 20,000 cases, that same number still holds.

    Mr. WEINER. So for those of us who are concerned about DNA finding not only the bad guys but also freeing the good guys, one in four cases that come your way is an example of a law enforcement official who says we think this is the guy, test the DNA to prove that, and they are wrong.

    Mr. ADAMS. That is correct. It is not a match.

    Mr. WEINER. And before DNA was available, and that evidence was not available, these cases would most likely go to trial and the strongest piece of information that could possibly clear someone was not available. This is a case where the science has really had a dramatic impact, that fully 25 percent of the cases are innocent people, or at least people who were not at the scene.

    Mr. ADAMS. The technology prior to DNA was A/B/O blood testing and some blood enzyme testing. It certainly was not as powerful as we see today with DNA.

    Mr. WEINER. Gotcha—because as I am sure you recognized, Dr. Adams, although you would not put that in your testimony, an important part of the coalition to press for this additional funding—and many Members of Congress who are concerned about issue of civil liberties, myself included, and many of the panelists on the panel following you are justifiably concerned about the abuses of this DNA testing—at the end of the day, it really has extraordinary opportunities for those who, frankly, have had to rely upon court-appointed lawyers, have had to rely upon conflicting eyewitness testimony and the like and now have this powerful tool, and 25 percent the cases are resulting that way.
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    Mr. Boyd, I do not want to rain on this parade here, but the $40 million seems light to me.

    Mr. BOYD. The $45 million would cover, we believe, the backlogged convicted offenders. My staff tells me that part of the problem with covering unsolved or unanalyzed suspect cases is that aside from rape, we do not have a very clean number, so that it probably would not cover that kind of problem.

    Mr. WEINER. The 180,000 number was the number that you got doing a survey——

    Mr. BOYD. That is right, and that is only rape cases.

    Mr. WEINER [continuing]. A survey of police departments asking what evidence do they have. Intuitively speaking, you should have asked a broader question.

    Mr. BOYD. Well, what we found in some cases is that that is a very difficult question to get answered at all. They normally count rape kits very accurately. In any number of other cases, part of the problem you encounter—and this is why the other question is very difficult—is how many do you have that you collected that you did not analyze at all, and in many cases, you do not get clean answers because they never got around to analyzing it or were not going to use it. Unlike a rape case, it does not get stored, so they do not have clean numbers.

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    The second problem is the question of if they had the resources there and knew it could be analyzed, then what would the number really be.

    Mr. WEINER. Right. That is the important number for the purposes of my bill.

    Mr. BOYD. Yes.

    Mr. WEINER. Let me just back up to the $45 million. You are assuming $45-a-pop for the test of the convicted offenders. Is that where that number comes from, based on the million you would expect to have by the end of this year in the backlog?

    Mr. BOYD. That is a rough estimate, yes.

    Mr. WEINER. Now, is that $45 a reasonable number, or is it a high estimate, a low estimate; do the economies of scale drive that number down?

    Mr. BOYD. Right now——

    Mr. WEINER. If you went to the marketplace right now—forgive me—and said we have a million tests we are prepared to do, the price is going to come down——

    Mr. BOYD. Under current technology, we think we could get around $45 per test.
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    Mr. WEINER. Gotcha.

    Mr. BOYD. We do have an R and D project underway now which has already begun to produce technologies which look like they could do the testing in a matter of minutes for a cost on the order of $12. We think those will come into the picture within 2 or 3 years.

    Mr. WEINER. Let me also question you about some language you used in your testimony, that there is an existing lab capacity to do all of this work. Is that true?

    Mr. BOYD. There is an existing lab capacity, we believe, can handle the normal load once we have completed the program. We have spent about $50 million improving the laboratories over the last 5 years. Most of those laboratories are just now beginning to bring this online.

    Mr. WEINER. But these are just your laboratories. I am talking about all those out there in the private sector. I mean, someone can gobble up this work and do it.

    Mr. BOYD. Right. The private sector laboratories certainly could, which is why we believe that the backlog should be handled by outsourcing to private laboratories.

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    Mr. WEINER. Answer me this question. In my testimony, I spoke about the 16,000 unanalyzed rape kits in New York City. Can you tell me a circumstance where a kit would be plucked off the shelf and tested? Let us assume they do not have a hot lead. Under present circumstances in cities like New York, that rape kit, which represents a victim, sits there, and there is no reason and no program currently in place, no Federal program, probably not even a State program, that would go to test that just to see if you can get a cold hit on one of the increasing number of convicted offenders that have been uploaded onto the data base; isn't that right?

    Mr. BOYD. Right. There is no Federal program. There have been a few States that have done some cold test searching. Virginia, for example, has done some, and it has had a number of hits as a consequence. But it is certainly not a national effort, and it is not Federal.

    Mr. WEINER. Okay. Let me ask just one final question, Mr. Chairman.

    We have two sides of this that have to be matched together. We have the criminals who we think did these bad deeds because we know of high recidivism rates in crimes like rape, and we are downloading those at a very quick pace, and we have the capacity to do it; with a mere $40 million, we will have no backlog at all. But unless one of those convicted felons has been raped, we are not creating anything to match it with. We are only doing half the job.

    Mr. BOYD. That is exactly right.

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    Mr. WEINER. And the other half of the job—the evidence kits—that is the tough part. That is the expensive part. That is the complex part.

    Mr. BOYD. It is also the most valuable part.

    Mr. WEINER. I was getting to that—thank you, counsel—yes. Do not get ahead of me. [Laughter.]

    Mr. BOYD. Yes, sir.

    Mr. WEINER. Isn't that the most valuable part?

    Mr. BOYD. Yes, sir, it certainly is. [Laughter.]

    Mr. WEINER. And I think one thing that our committee has to keep in mind is that there are two ways you can go about this problem. If you have two concurrent pots that ultimately both need to be loaded, you can do all of one and then think about what we are going to do with the other, or you can do what my bill contemplates, which is try to build them concurrently and build two databases at the same time, because I believe there is a statistical model that you are going to see where you are going to see an increase in the number of hits only if you do it that way. Otherwise, you are going to have to wait for years to see the hits, because we are not loading up the information. All you are going to do is get a nice body of information about convicted felons in your system and what their DNA looks like, but until you invest the money on the other side of the formula—and frankly, the existing policy at Justice and the existing pot of money does not really do that. It essentially says we are going to use 98 percent of the money for testing on convicted offenders and only 2 or 2.5 percent of the money goes on the other side.
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    I think what our committee should contemplate, Mr. Chairman, is that we need to figure out a way to walk and chew gum at the same time. We cannot just thrust money on one side of this formula without going to the other side of the formula, because the fact remains that unless they already have a hot lead on a case, and they say, ''Let us go back to Kit 92–117,'' they are never going to pull that off the shelf. Under the other dynamic, they will take a few hundred at a time, and a case that might be cold as the day is long might suddenly result in a hit. I think we have to do both at the same time.

    I thank the chairman.

    Mr. CANADY. Thank you. Let me just raise a couple of questions.

    Mr. Boyd, in your testimony, you made reference to a voucher proposal which you believed would save substantial sums and would be a more efficient way of addressing the backlog. Could you elaborate on that and why you think it would actually save money to provide vouchers rather than direct grants?

    Mr. BOYD. The way the program operates now, because of the way the language is written, requires that we provide funding to each of the States. That immediately involves the State procurement systems. Costs immediately go up, because each of the labs that want to participate in this program also have to add into their cost the cost of marketing and the cost of administering to 50 separate procurement systems.

    Second, there is a requirement in law going all the way back to 1996 that says that the standards which were established by what is called ''SWGDAM'' in the FBI, are the standards which are to drive the quality of those samples that are collected. It is very difficult to maintain that level of quality when you have 50 different States systems operating independently.
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    What we would propose to do is, on a competitive basis, select a set of labs which we know can meet the quality standards, and then provide each State vouchers at the lower cost we could get by handling it on a national basis. The State vouchers would indicate the number of samples that you have tested for your State, based on some portion of the backlog. They would then submit that voucher with their samples to the laboratory to be processed and brought back to be put into the system.

    By doing that, we believe the total cost per sample would be reduced by about 20 to 30 percent. So what we are proposing is not really intrinsically different. We think the service needs to go to the States itself, but we think this is a case where the advantages of buying in very large quantities mean that it would make sense to have the selection of laboratories and payment to the laboratories themselves be done centrally by a single agency, and then vouchers provided to the States.

    Mr. CANADY. Thank you.

    Let me ask one additional question, which I will pose to either of you. Would you oppose a requirement that the biological samples from which the DNA record is developed be destroyed once that record is created?

    Mr. ADAMS. I think the history of our production of CODIS has shown that the retention of samples has been very important. We have already changed technologies on two occasions. If we had not retained those samples, the same convicted offenders would have had to have been recontacted, resampled, and additional costs would have been added onto an already costly process.
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    Mr. BOYD. I think it is important to understand how incredibly rapidly DNA technologies come into the system and how remarkably quickly we have developed DNA technology for us. This is so early a technology that it is likely there will be more changes coming, to make it cheaper, faster, more efficient, and all the other things that go with it, so as we continue to develop the technology and the science that goes behind it, I think we want to be able to do what we are going to have to do now with those early RFLP samples.

    So I think that until we can genuinely call this a mature technique, I think we need to be fairly cautious.

    The National Commission on the Future of DNA Evidence recommends holding those samples for a several-year period and then reevaluating, which I think fits the notion that we should wait until the technology is genuinely mature enough that we can be comfortable that eliminating a sample is not going to eliminate what we need to have.

    Mr. CANADY. Thank you.

    Mr. WEINER. Mr. Chairman, could I ask just one final question.

    Mr. CANADY. Yes, Mr. Weiner.

    Mr. WEINER. Since you see so much evidence, could you expand on an issue that perhaps the final panel is going to raise. What is your general assessment of the skill and care that police departments are taking when handling DNA evidence? By the time it reaches you, what would you generally say is the—how many cases are there that get ''Simpsoned''?
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    Mr. ADAMS. I think I understand the question. I think that that case and many other cases have brought out the fact that it is so important to understand the collection and preservation of evidence. I think that that is true today as never before. And so many departments around the country, including our own, have put a high price tag on that effort, that is, to train our officers and agents on how to collect and how to preserve the evidence, especially in light of the technology today.

    As I mentioned, PCR or STR technology is so sensitive that care must be taken, and I think we are seeing the fruits of that.

    Mr. WEINER. So your assessment is that generally, the care is pretty good of the evidence that you wind up seeing?

    Mr. ADAMS. Correct.

    Mr. BOYD. I think there are two different levels that you need to be concerned about here. I think a more complete answer to that question is that it is problematic in one degree, and that is that in some places, you have extraordinarily well-trained evidence technicians who are collecting that evidence. I think it is always the case that it is very well and very carefully handled once it gets into the laboratory. The problem is that in many instances, the people who are actually collecting the evidence at the crime scene may not be that well-qualified.

    Part of what we are now doing to correct this encompasses a number of things. One is that the National DNA Commission asked NIJ to publish—I think, in fact, we are republishing another half million—1.5 million copies of a brochure to help police begin to understand what is involved in the collection of DNA.
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    The second thing we have done is to produce a series of guides which help investigators at a crime scene. We have one guide for homicide investigations, one for crime scene evidence, one for eyewitnesses, and we have two more coming out for arson and explosives. They try to help the investigator step through very carefully what you have to do to collect the evidence properly and protect the evidence properly, and along with that will also come training materials.

    More and more agencies understand that, but the right answer is that the effectiveness of the laboratory's work depends on how well the evidence is collected in the first place and how carefully it is handled.

    Mr. WEINER. Thank you, Mr. Chairman.

    Mr. CHABOT. Thank you.

    Do any of the other members of the committee have any additional questions they would like to ask?

    [No response.]

    Mr. CHABOT. If not, we have been called for a vote on the floor, so we want to thank Dr. Adams and Dr. Boyd for their testimony this afternoon and their responses to the questions.

    We are in recess until after this particular vote, and then we will go to the third panel.
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    [Recess.]

    Mr. CHABOT. The subcommittee will come back to order. We apologize for the delay. We had not only a vote on the Floor of the House, but we then had the Speaker of the House make a speech, and we had a Chaplain resign and the next Chaplain be sworn in, and we had a Republican conference which was mandatory for all Members of the House, and hopefully, that controversy about the Chaplain, something that would be fraught with great peril, has finally been resolved and is hopefully behind us.

    Mr. SCOTT. You wish.

    Mr. CHABOT. We wish. We will see. [Laughter.]

    Only time will tell. But we do apologize for the delay, and at this point, I will introduce the members of the third panel.

    David Coffman, is a crime laboratory analyst supervisor with the Florida Department of Law Enforcement. As such, he supervises Florida's DNA Investigative Support Database, one of the Nation's largest DNA databases, and is the Florida representative to the CODIS Subcommittee of the Federal Government's Technical Working Group on DNA Analysis Methods. He also is a member of the FBI's DNA Advisory Board. He received his bachelor of science degree in chemistry from the University of Houston.

    We welcome you this afternoon, Mr. Coffman.
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    Next, Michael Sheppo is the bureau chief of the Forensic Science Command of the Illinois State Police, a position he has held since 1985. Prior to joining the Illinois State Police, he served for 13 years with the Georgia Bureau of Investigation, becoming director of the Augusta branch laboratory. He is a member of several professional forensic organizations, including the American Society of Crime Lab Directors, where he is current president, and the National Forensic Science Technology Center. He received his bachelor's degree from Davis and Elkins College and his master's degree in forensic chemistry from the University of Pittsburgh.

    We welcome you here this afternoon, Mr. Sheppo.

    The next introduction will be made by Mr. Scott, and I will defer to him at this point.

    Mr. SCOTT. Thank you, Mr. Chairman. I appreciate the opportunity to introduce a good friend whom I have known for a long time—Dr. Paul Ferrara, director of the Virginia Division of Forensic Science, one of the largest full-service State-operated forensic science laboratories in the country, serving all of the State and local law enforcement agencies as well as the medical examiners and prosecutors in the Commonwealth of Virginia. In 1989, the Virginia Division of Forensic Science became the first State forensic science laboratory in the United States to provide DNA testing in criminal cases.

    I have known Paul since I was a member of the State Senate, and in 1989, Virginia enacted the first DNA databank law in the country requiring all convicted felons to provide blood samples for inclusion in a State-operated electronic database. Since that time, Virginia's DNA database has been responsible for the identification of perpetrators in hundreds of crimes and actually averages three or four cold hits every week.
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    Paul is a former chairman of the American Society of Crime Lab Directors Laboratory Accreditation Board, which is the only accrediting body for forensic science laboratories. He also serves on the FBI's DNA Advisory Board. He holds a Ph.D. in organic chemistry from Syracuse and also a Ph.D. from the State University of New York. I am honored to have him as one of the leading experts in DNA with us today.

    Mr. CHABOT. Thank you, Mr. Scott, and welcome, Mr. Ferrara.

    The fourth witness this afternoon will be Barry Steinhardt, who is associate director of the American Civil Liberties Union and coordinates the ACLU's Program on Technology Issues. He was also co-founder of the Global Internet Liberty Campaign, the world's first international coalition of nongovernmental organizations concerned with the rights of internet users to privacy and free expression. In 1998, Mr. Steinhardt served as president of the Electronic Frontier Foundation. He holds a law degree from the Northeastern University School of Law.

    Our fifth and final witness on this panel and for the afternoon will be Jane Siegel Greene, who is executive director of The Innocence Project, which represents more than 200 inmates seeking post-conviction release through DNA testing. The Innocence Project has been responsible in whole or in part for exonerating more than 39 of its clients. Ms. Greene has also served as a member of the Working Group of the National Commission for the Future of DNA Evidence and helped draft the recent Department of Justice report entitled, ''Post-Conviction DNA Testing: Recommendations for Handling Requests.'' She received both her undergraduate and law degrees from the University of Pennsylvania.
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    We welcome both of you here this afternoon as well.

    What I would suggest is that we will accept each of your complete statements in the record, and because of the lateness of the hour, you might consider summarizing your testimony. But in any event, if you could stay within the 5-minute rule that we have for your testimony, that would be much appreciated.

    We have a system of lights here where, when the red light comes on, it means your 5 minutes is up, and we will not necessarily gavel you down, but we would ask that you perhaps take that into consideration.

    So we will go first to Mr. Coffman.

STATEMENT OF DAVID COFFMAN, CRIME LABORATORY ANALYST SUPERVISOR, INVESTIGATION AND FORENSICS PROGRAM AREA, FLORIDA DEPARTMENT OF LAW ENFORCEMENT, TALLAHASSEE, FL

    Mr. COFFMAN. I wish to thank the members of the subcommittee on crime for inviting a member of FDLE to come and speak about this issue. It is my pleasure to address these issues as well as the overall crisis being faced by forensic labs in this country.

    As you mentioned, I am the crime laboratory analyst supervisor with the Florida Department of Law Enforcement and do supervise the Convicted Offender DNA Database.

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    To date, Florida has made 215 matches, aiding over 340 investigations. Because of the Florida crime laboratory and our database's successes, I have been privileged to be able to see quite a few of the laboratories in this country, and in fact, many of the public and private sector labs have visited our site in Tallahassee to gain from our experience in setting up a Statewide DNA index.

    The reason I mention that is that I feel that that experience and seeing other sites, not just working in the vacuum of my laboratory, I have a pretty good handle on what are some of the problems in other laboratories. Even though we still have those problems, they are not as great as in other labs, so I want to mention that.

    As far as the backlog issue, I think everybody has covered it pretty well today. Obviously, there is a backlog issue. It is not just in one area. It is not just the convicted offender samples that need working; it is the casework samples. It is estimated there are 180,000 sexual assault kits out there, and there is other evidence associated with that also, that have not even been looked at.

    Mr. SCOTT. How many? I am sorry.

    Mr. COFFMAN. One hundred eighty thousand.

    So the first thing we have to realize is that there are two problems, and you cannot solve the problem by just dealing with one of them.

    Somebody asked earlier how the backlog came out. For databases, I think everybody has the same story in this country. Their legislators realized it was a good idea, and they passed this law, and they said here is who you are going to collect, and they gave no funds, no personnel, no facilities, and basically, you are sitting there having to establish a database without any resources to do it, and by the time you get the resources, you already have a backlog of offender samples to be analyzed.
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    That did happen in Florida, and we had one more wrinkle, I am sure just like Dr. Ferrara, that our law passed in 1989 as well, and we did not have the DNA procedure up and validated in our laboratory yet, so we had to get it validated and do this analysis.

    Expansion of the collection for databases—not every State collects from all felons. We started out with two collection requirements—lewd and lascivious conduct and sexual assault. We have had two more expansions since that time, and each time the expansion occurred, we had an influx of samples that put us in a backlog situation. In 1998, we enjoyed 6 months of being totally current with our Convicted Offender Database, and then the core loci for the new STR procedure were selected, and we instantly had a 50,000-sample backlog again, of these offender samples that we needed to reanalyze.

    We were very happy that we did retain the samples early on, and we saved the sample and the extracted DNA to make the ease of the reanalysis go much quicker. Also, as far as the hits I mentioned, it should be noted that of those 215 matches or hits, over 100 of those occurred in the last 2 years. We collect the samples as these individuals go into prison. The average term for someone to spend time for a sexual assault in Florida is about 7 years. After the seventh year, they started getting out, and we started making the matches. If we had not retained the samples, and we had to collect the samples again from scratch, every time there is a technology change, the database becomes basically ineffective, for a potentially 5- to 7-year period of time. That is why it was really crucial for us to retain these samples. As a matter of fact, when we first began the database with RFLP, which is the older technology, our very first hit came after we had analyzed 3,000 samples. The reanalysis of STR, our very first hit came after we had analyzed 75, because these individuals were out of prison and re-offending.
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    As far as casework, they have the same kinds of problems when there is a technology change. They have to validate the procedure. That takes experienced crime lab analysts off the bench to train the people. There is usually a delay time of about a year when you get new people before they are productive and actually analyzing casework. So every time there was a technology change, the caseworking labs fell behind.

    Also, another issue—and it was discussed by Dwight Adams—is the increased sensitivity we are seeing with STR is now creating cases that we would never have expected to have attempted any kind of serological exam on in the past. But now, we are getting results off of a straw that someone left at the scene, or a cigarette butt, or a stamp. So we do not have a handle on what our true backlog is, because it seems limitless what we can possibly use with this technology.

    Also, historical cases are being resubmitted. In our Tallahassee laboratory in the State of Florida alone, which is a very small region, we have had no less than 20 cases in the last year that are over 20 years old—one of them was 33 years old. That is another whole realm of backlog that we have not realized.

    Basically, the forensic science community in this country for years has told their investigators: Do not submit a case unless you have a suspect to compare it to. The reason for that was that we had no databases in the past. We did not have the firearms database; we did not have IAFIS; we did not have the DNA database. But now we do, so these unsolved cases can now be solved if they are just submitted.

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    The problem in our State—we have sent out multiple letters to our agencies saying send us your cases; we have assigned people to work non-suspect cases, and they may not get done as quickly as the ones going to court, but we are working on them—but they do not want to send them. The reason is—I did a minor survey around our State, and the reason is they feel like they are going to bog down the system and take our resources away from the cases that are going to court or that they need next week. So there is an unseen backlog out there that has not even made it to the crime labs yet.

    Mr. CHABOT. If you would not mind wrapping up your testimony, we would appreciate it. Thank you.

    Mr. COFFMAN. Sure. As far as the bills, we really like H.R. 3375. We think it covers all the issues—it covers the offender backlog, it covers teh casework backlog, it covers making a broad database including the military and the Federal lands and the District of Columbia, and it also gives the appropriate amount of resources to accomplish that.

    I would be remiss if I closed my testimony without saying that we appreciate what you have done to deal with the DNA backlogs. However, forensic science needs assistance in all cases, in all disciplines. It is important to mention that teh successful effort that Congress made of putting 100,000 new police officers on the street to help improve public safety was a great and noble thing to do, but the question must be asked: What do these additional officers do with evidence they need analyzed to successfully investigate and prosecute the criminal case? The unfortunate answer is that it is left up to the same understaffed, poorly-funded crime laboratories and the same inadequate facilities to absorb the added workload in the best way they can. This invariably forces laboratories to prioritize cases, leaving many cases unexamined and the total benefit of adding officers has in some ways been diminished by a failure to provide the necessary forensic support available. The State and local crime laboratories desperately need the enhanced funding proposed by this act. We thank you for your consideration and for letting us give this testimony.
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    Mr. CHABOT. Thank you, Mr. Coffman. We appreciate your testimony.

    [The prepared statement of Mr. Coffman follows:]

PREPARED STATEMENT OF DAVID COFFMAN, CRIME LABORATORY ANALYST SUPERVISOR, INVESTIGATION AND FORENSICS PROGRAM AREA, FLORIDA DEPARTMENT OF LAW ENFORCEMENT, TALLAHASSEE, FL

SUMMARY

    After consideration of House Bills 2810, 3087, and 3375, we recommend 3375. Of the three bills, we believe that HR 3375 provides the most comprehensive assistance to all areas of the issue. This bill does provide $30 million dollars over two years for the analysis of the nation's offender backlog. It also provides $49.5 million over two years for the caseworking laboratories, including the FBI laboratory, to work on the casework backlog. A minimum of $6.6 million is provided to establish the national convicted offender program, which would complete the national coverage for the offender index by including federal, District of Columbia and military violent offenders. Over $2.8 million is also provided to establish the missing person index.

    I feel fortunate to come from a state and agency that realizes the importance of a strong crime laboratory system in the scheme of law enforcement and the criminal justice system. The bills put forth here are dealing with forensic DNA issues. However, I want to close my testimony by discussing the tremendous needs of state and local laboratories beyond the DNA issue. Inadequate staffing, training, technology, and facilities permeate every forensic discipline. These bills take steps in helping alleviate DNA backlogs. However, consideration must also be given to the passage of HR 2340, the proposed National Forensic Science Improvement Act of 2000. This act would help insure that our crime laboratory system can meet the needs of our investigators by providing forensic science assistance to all cases that could benefit from it, rather than the small percentage of cases that currently receive assistance. Informal surveys within our state reveal that evidence is never submitted to the crime laboratory in a significant percentage of cases. Investigators are reluctant to flood crime laboratories with cases which have no suspects or are considered a lower investigative priority for fear that progress will be slowed on more pressing cases or cases scheduled for trial.
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    It is important to mention the successful effort to put 100,000 new police officers on the streets of America to help improve public safety and combat crime. This was a noble thing to do. The question must be asked, ''What do these additional officers do with evidence they need analyzed to successfully investigate and prosecute a criminal case?'' The unfortunate answer is that it is up to the same understaffed, poorly funded crime laboratories in the same inadequate facilities to absorb the added workload in the best way they can. This invariably forces laboratories to prioritize cases, leaving many cases unexamined. The total benefit of adding officers has in some way been diminished by a failure to have the necessary forensic support available. The state and local crime laboratories of this nation, which process an estimated 90 to 95% of all forensic work desperately need the enhanced funding proposed in the National Forensic Science Improvement Act. We thank the members of this committee for the opportunity to speak and submit this statement into the record.

STATEMENT

Introduction:

    I wish to thank the members of the Subcommittee on Crime of the House Committee on the Judiciary for inviting a member of the Florida Department of Law Enforcement (FDLE) to make a statement on the issues surrounding backlogs in forensic DNA laboratories. It is my pleasure this afternoon to address those issues as well as the overall crisis being faced in most of the nation's state and local crime laboratories.

    My name is David Coffman and I am a crime laboratory analyst supervisor with the Florida Department of Law Enforcement at their headquarters in Tallahassee. I have worked in the field of forensic science since 1984. I began my career with the Houston Police Department and remained there until 1987 when I moved to Florida to join the FDLE. I have worked both as a case-working analyst in serology/DNA and supervisor of the DNA database. For the past 10 years I have worked to establish the DNA Investigative Support Database for the State of Florida. Florida's crime laboratories and its DNA database have produced more matches and investigative leads than any other system in the nation. Because of this success I have had the privilege to see many of the crime laboratories in this country. In addition, many public and private sector laboratories have visited our site in Florida to learn from our experience in developing a DNA database. These experiences have given me a good perspective of what is going on in the forensic DNA testing community. In the following statement I hope to give you an understanding of Florida's experience with DNA testing, discuss the backlog issues in DNA laboratories, provide possible solutions, and discuss which of the proposed bills could help reach the goal of a comprehensive, nationwide forensic DNA database. This database would help solve crimes where biological fluids have been left at the crime scene, aid in the apprehension of serial offenders, and even prevent future victimization of the citizens of this country.
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Florida's Experience with DNA:

    On February 5, 1988 a jury in Orlando, Florida found Tommie Lee Andrews guilty of sexual assault. This marked the first time in the United States that DNA had been admitted as evidence in a criminal trial. Mr. Andrews was suspected in approximately 23 assaults that had occurred in the southeastern part of the city of Orlando during 1986. A private laboratory performed the DNA analysis in this case. However, the public laboratories in Florida realized this was the future for forensic serological analysis. By 1990, FDLE (Florida Department of Law Enforcement) began providing DNA analysis in the Jacksonville laboratory. Currently, six FDLE laboratories and four county or city laboratories perform DNA analysis on evidence collected from crime scenes.

    The very next year, during the 1989 Florida legislative session, Florida Statute 943.325 was passed. This established the State of Florida's Convicted Offender DNA Database, which was to be maintained and operated by FDLE. The law required collection of a blood specimen upon conviction. Despite the fact that no new funds were allocated and validation of the DNA procedure had not been completed in the Tallahassee laboratory, collection of samples began in January of 1990. FDLE's Commissioner, Tim Moore, realized the potential of a database of this type and found the funds to allow the project to continue until the state awarded the program federal funding in 1995. Initially, samples were collected for the offenses of sexual battery and lewd and indecent acts. In 1993, murder and attempted murder was added. Aggravated battery, carjacking, and home invasion robbery were added as qualifying offenses in 1995.

    The first matches occurred in 1992. These early matches linked convicted offenders going into prison to old crimes they he had committed before they were apprehended. After the seventh year of operation matches began occurring which linked released offenders to new crimes committed after release from prison. These hits provided more evidence to support those studies showing that approximately 67% of sexual offenders re-offend.
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    Florida's database was also instrumental in freeing an innocent man in North Carolina who was serving time for a sexual assault he did not commit. This case demonstrates the power of the DNA database to vindicate, as well as, convict. Further, it highlights the importance of a comprehensive, nationwide network of DNA databases.

    The successes experienced thus far have prompted many law enforcement agencies to submit evidence from old, unsolved cases. Some of these cases fall into the category of a re-submission, while other cases are being submitted for the first time. In either instance, advances in the technology and an increased degree of sensitivity are the impetus for re-opening these old cases. A DNA database match that exemplifies this involves a 1986 homicide case in Fort Lauderdale, Florida. The victim had been stabbed 82 times and then set on fire. Although there were no suspects, biological evidence was recovered from the scene. In 1986 no DNA database was available. At that time, DNA testing was rarely used and only if there was a suspect available for direct comparison. In 1997, the case was resubmitted for the Broward County Crime laboratory to perform DNA analysis. The results of the analysis were submitted to the DNA database for comparison and a match transpired. The offender linked to the scene was concluding a two-year sentence for sexually assaulting a six-year-old boy and was three weeks away from release. When confronted with the DNA match he confessed to the murder.

    To date, Florida's DNA Database has made 215 matches and aided in over 340 investigations. Nearly half of these matches occurred during the last two years. This illustrates the need for patience when building a DNA database system. As the database grows in size, its power as a tool for aiding law enforcement increases. The law-abiding majority of our society also reaps the benefit of a safer community.
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    Over the last ten years, caseworking laboratories in Florida have undergone several changes in technology. Restriction Fragment Length Polymorphism (RFLP), a highly discriminating analysis method, was the first technique implemented in Florida and the first method employed by the DNA database. Soon came Polymerase Chain Reaction (PCR) techniques. PCR possessed a level of sensitivity that was unprecedented in the forensic community. Unfortunately, the power of discrimination was not equal to the older RFLP methods and early PCR techniques were unsuitable for compiling a convicted offender DNA database. Presently, Florida is using the Short Tandem Repeat (STR) method of DNA analysis. STR possesses an even greater power of discrimination than RFLP and has all the sensitivity of PCR.

    Florida's DNA Database staff is now in the process of reanalyzing all offender samples using the STR method. When the DNA database was in its infancy a decision was made to retain and store any excess sample. As Florida has undertaken the task of reanalyzing every sample in its DNA database, that decision has proven to be a good one. The early decision to retain excess sample has enabled us to reanalyze without the need to re-collect.

The Backlog Issue:

    Florida has been aggressive in tackling DNA backlogs in both the DNA database and in the caseworking laboratories. Although we have made tremendous strides the problem still exists. The backlog problem is a very real issue and one we have fought to eliminate for years. Unfortunately, the causes of crime laboratory backlog are variable and often unpredictable. The backlog issues faced by the DNA database are different from those faced by the caseworking laboratories.
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    The DNA Database backlog is somewhat more straightforward and predictable than that of the caseworking laboratories. Technology exists to help alleviate database backlogs. The causes of backlog in the DNA database setting are:

 Legislative establishment of a DNA database law without the required resources

— Personnel

— Funding

— Physical space

 Backlog associated with ''starting-up'' a DNA database

 Expansion of laws to include more crimes

 Changes in technology

— Validation of new technique

— Re-training of personnel

— Re-analysis of specimens

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    In Florida, we have experienced all of these factors. In 1995, the DNA Database received federal funding in the form of a Byrne Grant to eliminate the backlog of 25,000 samples. These funds gave Florida the ability to use automated workstations in the analysis of offender samples. At the time, Florida was one of only two forensic laboratories put robotic technology to use.

    In addition to automation, we utilized private contractors to assist in rapidly reducing the backlog of specimens requiring analysis. Florida successfully eliminated its DNA Database backlog and enjoyed a period of approximately six months without a backlog. In late 1997, the FBI completed selection of the 13 STR core genetic markers that would be used in the national DNA index system. Once this announcement was made, Florida was immediately in a backlog situation. In order for Florida to continue participating in the national system, it would be necessary to re-analyze every single sample we had collected. One of the Florida database's first matches with the STR technology was a 1987 case. The evidence yielded an insufficient quantity of sample for the RFLP procedure. Fortunately, this evidence was saved for over 10 years and analysis using the more sensitive STR technique was possible. The analysis yielded a match to an offender whose sample had been collected and submitted to the database in 1991.

    Florida has documented that over 52% of the offenders matched to sexual assaults and homicides using the state's DNA database had a prior burglary conviction in their criminal history. For this reason, FDLE is requesting that the Florida Legislature add burglary as a qualifying offense for inclusion in the convicted offender DNA database. If passed, this legislative expansion will increase the size of Florida's DNA database from 65,000 offenders to over 110,000 in the first year of implementation.

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    The paragraphs above provide prime examples of how the backlog issue can resurface in different situations. Having automated techniques in place can minimize the impact that a sample increase of this size can have on a DNA database's operation. Automation will allow us to triple the annual number of submissions to the DNA database while requesting only a 15% increase in personnel.

    For caseworking laboratories, the issues associated with a backlog are more complex and systemic. Forensic laboratories in the United States have notoriously been understaffed and lack sufficient physical space. It wasn't until the advent of the DNA database that serology cases without suspects were even allowed to be submitted to crime laboratories. Most crime laboratories in this country, in all forensic disciplines, only have enough staff to meet the needs for cases that are going to trial. They are far from being staffed to meet the needs generated by the actual crime rate in their service areas. As more and more forensic databases are developed (AFIS, NIBIN, and CODIS) backlogs are increasing because cases without suspects can now be analyzed in the hope that a lead will be provided. As mentioned earlier, old cases are being submitted or re-submitted with increasing frequency. Included in this resubmission increase are post-conviction requests.

    Technology changes affect caseworking laboratories in much the same way that they affect the DNA Database. Validation of the technology must occur, personnel must take time away from cases to be re-trained and old cases must be re-analyzed. In the case of STR, the sensitivity of the new technique allows analysis of more types of evidence and of evidence that would previously have been unsuitable for analysis. For example, DNA results can often be obtained from licked stamps, cigarette butts, or sweat-stained hatbands. Although this increase in sensitivity carries almost unlimited potential in terms of our ability to obtain results, it brings a substantial increase in workload that is, at this point, difficult to accurately quantify.
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    As should be obvious by now, addressing the casework backlog is complicated. There are, however, several constants that must be considered. Each requires human participation:

 Physical examination of evidence

 Interpretation of DNA results (particularly in cases where there may be a mixture of DNA from two or more individuals)

 Reporting of results

 Testimony as to the findings, when required

    A significant difference between DNA database backlog and DNA casework backlog surfaces here. While automation and a uniform sample type can allow databases to generate a great deal of analysis data with a comparatively small number of personnel, the caseworking laboratories are in desperate need of personnel and the facilities to house them. Current staffing does not allow crime laboratories to meet the present demand. If these laboratories remain understaffed, they will never be able to meet the growing demand and the backlog will only increase.

    Within the forensic community there is a movement to examine the possibilities held by automation as it applies to casework. The possibility of providing funds for research in this area is an idea that this body may wish to explore. If automation in this area were successfully developed, it could provide a dramatic improvement in analysis time and a decrease in the backlog. While it is doubtful that automation will be developed that could handle every type of evidence, it is probable that a large portion could be addressed. For example, examination of sexual assault kits, which contain standard materials for evidence collection, might easily be addressed by use of automated techniques.
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    The use of contract vendors is another possibility to help address the backlog. However, this option should be approached with caution. Assurances must be in place to specify that the private laboratory's success in obtaining results is equal to or better than the public laboratory. This should be considered a short-term solution only. The long-term solution is appropriate staff and facilities.

Conclusion:

    There are several points to be considered in developing a comprehensive DNA Investigative Index for the United States:

 Convicted Offender samples need to be collected and analyzed, nationwide

 Crime laboratories need assistance in working forensic case evidence

 The nation needs complete coverage of offender DNA analysis

 A Missing Persons Database needs to be established.

    After consideration of House Bills 2810, 3087, and 3375, we recommend 3375. Of the three bills, we believe that HR 3375 provides the most comprehensive assistance to all areas of the issue. This bill does provide $30 million dollars over two years for the analysis of the nation's offender backlog. It also provides $49.5 million over two years for the caseworking laboratories, including the FBI laboratory, to work on the casework backlog. A minimum of $6.6 million is provided to establish the national convicted offender program, which would complete the national coverage for the offender index by including federal, District of Columbia and military violent offenders. Over $2.8 million is also provided to establish the missing person index.
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    I feel fortunate to come from a state and agency that realizes the importance of a strong crime laboratory system in the scheme of law enforcement and the criminal justice system. The bills put forth here are dealing with forensic DNA issues. However, I want to close my testimony by discussing the tremendous needs of state and local laboratories beyond the DNA issue. Inadequate staffing, training, technology, and facilities permeate every forensic discipline. These bills take steps in helping alleviate DNA backlogs. However, consideration must also be given to the passage of HR 2340, the proposed National Forensic Science Improvement Act of 2000. This act would help insure that our crime laboratory system can meet the needs of our investigators by providing forensic science assistance to all cases that could benefit from it, rather than the small percentage of cases that currently receive assistance. Informal surveys within our state reveal that evidence is never submitted to the crime laboratory in a significant percentage of cases. Investigators are reluctant to flood crime laboratories with cases which have no suspects or are considered a lower investigative priority for fear that progress will be slowed on more pressing cases or cases scheduled for trial.

    It is important to mention the successful effort to put 100,000 new police officers on the streets of America to help improve public safety and combat crime. This was a noble thing to do. The question must be asked, ''What do these additional officers do with evidence they need analyzed to successfully investigate and prosecute a criminal case?'' The unfortunate answer is that it is up to the same understaffed, poorly funded crime laboratories in the same inadequate facilities to absorb the added workload in the best way they can. This invariably forces laboratories to prioritize cases, leaving many cases unexamined. The total benefit of adding officers has in some way been diminished by a failure to have the necessary forensic support available. The state and local crime laboratories of this nation, which process an estimated 90 to 95% of all forensic work desperately need the enhanced funding proposed in the National Forensic Science Improvement Act.
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    We thank the members of this committee for the opportunity to speak and submit this statement into the record.

    Mr. CHABOT. We will next go to Mr. Sheppo.

STATEMENT OF MICHAEL G. SHEPPO, BUREAU CHIEF OF REGION ONE, DIVISION OF FORENSIC SCIENCE COMMAND, ILLINOIS STATE POLICE, SPRINGFIELD, IL

    Mr. SHEPPO. Thank you, Chairman Chabot and Mr. Scott, ladies and gentlemen.

    As we have heard today from other testimony, the potential for solving crimes utilizing computerized forensic databases is enormous.

    In Illinois, for example, we have cleared 52 cases, essentially cold hit cases dealing with DNA, and have linked another 133 cases to serial criminals. This is very important work. However, the costs associated with this are also enormous.

    For example, the addition of Senate bill 644, which will take place in 2002 in Illinois, will add an additional 20,000 database samples, offender samples, that will have to be analyzed every year. We estimate the initial start-up cost to do that is approximately $1 million. Additionally, the cost just to work the backlog cases—and these are the ''no suspect'' cases that we have been talking about today—we estimate is approximately $4.3 to $4.4 million in Illinois next year to clear that up—just the beginning of it. So it is a tremendous amount of resources that we and the other States need.
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    While the quality of forensic science services is widely accepted as a key to effective crime fighting, there currently exists in the United States in my opinion a crisis—a crisis that is caused by a shortage of forensic science resources. Billions of Federal dollars have been spent on virtually every criminal justice component, including more police officers, enhancing the courts, the prisons, information technology, et cetera. However, the highly technical and very expensive forensic sciences have received very little Federal support, relatively.

    The problem becomes even more significant considering the fact that laboratories have long experienced shortages in the demands of the criminal justice system to implement new technologies. New scientific technologies such as the CODIS stretch existing resources to really intolerable limits, further compounding this caseload growth, the backlogs, the added new technology, is the issue of quality.

    Developing a quality system in a forensic laboratory which includes proficiency testing and accreditation is extremely costly. To fully meet or exceed the stringent standards of proficiency testing and accreditation, most laboratories must upgrade facilities; they must purchase or improve their equipment; they must enhance their analytical processes and add professional and support staff.

    Sadly, I must report to this subcommittee today that less than half of our Nation's crime laboratories today are accredited. We must do something to see that the remaining crime laboratories are able to reach accreditation standards. This is very important.

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    Additionally, the Federal Government has set and mandated certain analytical standards which have economically impacted the Nation's forensic laboratories. Examples of this are all well-intentioned—for example, the DNA Commission—and all of these standards are very important; however, the implementation of these standards often exhausts the limited resources of our Nation's forensic laboratories.

    Specifically with reference to the bills before the subcommittee today, each of the bills provides a mechanism and funding to address the backlog of offender samples in our Nation's forensic laboratories. I thank each of the sponsors and their cosponsors for taking the initiative to advance this legislation. However, there are some differences which I would like to comment on.

    Two of the bills, H.R. 2810 and H.R. 3375, add to the CODIS offenders covered under the Federal law, the Uniform Code of Military Justice, and the District of Columbia Code. We support this. We believe that this will enhance the CODIS and allow us to make more hits.

    Additionally, H.R. 3087 and H.R. 3375 both provide much-needed funding for the analysis of DNA casework from unsolved crimes. We also believe this is very important.

    Of the three bills, the most comprehensive, which addresses offender backlogs, unsolved cases, and the additional offenses, is H.R. 3375. In my opinion, H.R. 3375 will best maximize the continued benefits of the national DNA Indexing System.

    In conclusion, the specific bills before this subcommittee address only a portion of the concerns confronting the forensic science profession nationally. We are facing backlogs in all of our forensic disciplines, and I believe that a more comprehensive approach is necessary if we are to properly address these backlogs and the resulting delays to justice associated with them.
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    I respectfully request that the subcommittee consider H.R. 2340, the National Forensic Science Improvement Act, which is sponsored by Representative Sanford Bishop of Georgia. This legislation would provide sufficient funding in the amount of $763 million over a 5-year period, which will address the critical concerns facing the forensic science and medical examiner laboratories in our Nation.

    I thank you very much for inviting me to share my opinions on these bills, and I will entertain any questions.

    Thank you.

    Mr. CHABOT. Thank you very much, Mr. Sheppo.

    [The prepared statement of Mr. Sheppo follows:]

PREPARED STATEMENT OF MICHAEL G. SHEPPO, BUREAU CHIEF OF REGION ONE, DIVISION OF FORENSIC SCIENCE COMMAND, ILLINOIS STATE POLICE, SPRINGFIELD, IL

    The potential for solving crimes using computerized forensic database systems is enormous. All forensic databases work in the same manner. Each of these systems actually consists of two separate databases—a database of samples from known sources, and a database of samples from unknown sources taken from unsolved crimes. By comparing these two databases, an unknown sample can ''hit'' on a known sample, thus identifying the source of the sample and solving the crime. This potential has been demonstrated in the oldest existing forensic database the AFIS (Automated Fingerprint Identification System), which has been in use in Illinois since 1989. Since its inception in Illinois, over 3000 case ''hits'' have been made.
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    Similar to the AFIS is the CODIS (Combined DNA Index System), the FBI's national DNA database. In Illinois, for example, comparisons in the CODIS have resulted in identifying the suspects in 52 cases and demonstrating another 133 cases are the result of serial criminals. Unsolved cases in Illinois can be searched against convicted offenders not only in Illinois, but in all other states throughout the nation which are part of the CODIS system. To continue this crime solving technology, significant funding is needed in state FY–01. Additionally, Illinois Senate Bill 644 will increase the number of offenses covered in the CODIS legislation. When this legislation becomes effective, individuals convicted of crimes such as homicide, attempted homicide, kidnaping, aggravated kidnaping, burglary, and other serious crimes will have to provide a sample for DNA analysis and inclusion in the CODIS database. This will substantially increase the power of the DNA database to solve crimes and get repeat violent offenders off the streets; however, the resources needed to analyze these samples must be made available. To handle the additional 20,000 offender samples that will be received as a result of this legislation, an initial amount of $1 million is needed in state FY–01 to begin this process. Additional fiscal resources will be needed in subsequent fiscal years, to maintain the timely processing of offender samples.

    Analyzing offender samples is only one part of the challenge confronting the forensic sciences in establishing a successful national DNA database. Presently, the change from the time consuming Restriction Fragment Length Polymorphism (RFLP) technology to the Polymerase Chain Reaction (PCR) based Short Tandem Repeat (STR) technology, which is now being used in the national DNA database, requires that each offender sample and all casework samples be reanalyzed using STR technology. This is a tremendous task which requires enormous resources. Additionally, the national DNA database will not successfully work if the casework, particularly ''no-suspect'' casework, is not analyzed and entered into the database. This aspect of the problem cannot be neglected. There are thousands of no-suspect cases in Illinois alone waiting to be analyzed. When one looks at this ''no-suspect'' case problem on a national level, the challenges are staggering. In Illinois, a total of $4.3 million is needed to address the DNA casework backlogs in state FY–01.
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WHY IS FEDERAL FUNDING NEEDED TO SUPPORT THE NATION'S FORENSIC SCIENCE LABORATORIES?

    While the use of quality forensic science services is widely accepted as a key to effective crime-fighting, there currently exists in the United States a crisis—a crisis caused by a shortage of forensic science resources. The criminal justice system relies heavily upon forensic science services as an integral part of the investigative and judicial process; however, these services have been long neglected. While billions of federal dollars have been spent on virtually every other criminal justice component—police officers, the courts, prisons, and information technology—the highly technical and expensive forensic sciences have received very little federal support. In most states and municipalities, funding has simply not kept pace with the increasing demand for crime laboratory analyses. This neglect has resulted in severe backlogs in forensic laboratories nationwide. For example, since 1990, the average U.S. forensic laboratory has experienced an increase in caseload of 23 percent, while budgets have grown only 10 percent and staff size by only 9 percent. This problem becomes even more significant considering the fact that most laboratories have long experienced resource shortages, and the demands by the criminal justice system to implement new crime fighting technologies such as the CODIS stretch existing resources to intolerable limits.

    Further compounding the caseload growth, backlogs, and added new technologies is the issue of quality—the most important variable in the operation of forensic laboratories. Many forensic science professionals are concerned that the growing demands on laboratories have, or can have, a negative impact on the level of quality of the results achieved. Laboratory accreditation (which is voluntary) is generally accepted as the key fundamental step in quality assurance and consistency in forensic science processes. But, due mainly to the costs associated with accreditation, only five in ten forensic laboratories are now accredited. To fully meet or exceed the stringent standards and proficiency testing requirements established by accreditation, most laboratories must upgrade facilities, purchase or improve equipment, enhance analytical processes, and add professional or support staff.
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    Finally, the federal government has set and mandated certain analytical standards which have economically impacted the nation's forensic science laboratories. Examples of these unfunded mandates include the standards promulgated by the Department of Justice's DNA Advisory Board (DAB), standards set by federally sponsored scientific and technical working groups (SWGS/TWGS), and the standard practice guides developed by the National Institute of Justice (NIJ). All of these federally sponsored groups are dedicated to improving national forensic science practices; however, the implementation of their standards often exhaust the limited resources of our nation's forensic science laboratories.

    Clearly, forensic science laboratories are an essential part of the criminal justice system and desperately need federal assistance. Without immediate corrective action, the nation's forensic science laboratory infrastructure will continue to slide toward a debilitating state which seriously threatens the equal and timely administration of American justice.

REVIEW OF PENDING DNA LEGISLATION H.R. 2810, H.R. 3087, H.R. 3375

    In general, all three bills before the Subcommittee provide the much needed support for the national DNA database (CODIS). Also, each of the bills provide mechanisms and funding to address the backlog of offender samples in our nation's forensic laboratories. However, there are differences in the three bills which I believe require comment.

    Two of the bills (H.R. 2810 and H.R. 3375) add to the CODIS offenders covered under Federal law, the Uniform Code of Military Justice, and the District of Columbia code. Certainly the addition of these offenders is appropriate and will undoubtedly result in more database associations. Additionally, H.R. 3087 and H.R. 3375 both provide the much needed funding for the analysis of DNA casework from unsolved crimes. I believe that the comprehensive approach (offender samples plus casework) is required and is the only approach which will result in the desired outcome—solving crimes through DNA database associations. The most comprehensive bill addressing all three aspects (offender backlogs, unsolved cases, and additional offenses) is H.R. 3375. I thank each of the three bill sponsors and their cosponsors for their efforts on behalf of the forensic community; however, I believe that the H.R. 3375 best addresses the needs of the federal, state, and local forensic laboratories with reference to DNA. Additionally, H.R. 3375 will best maximize the benefits of the national DNA Indexing System (CODIS).
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    In conclusion, the specific bills before this Subcommittee address only a portion of the concerns confronting the forensic science profession nationally. I truly appreciate your careful consideration of each of these bills. Nevertheless, we are facing backlogs in all of the forensic disciplines, and I believe that a more comprehensive approach is necessary if we are to properly address these backlogs and the resulting delays to justice associated with them. I respectfully request that this Subcommittee consider H.R. 2340—the National Forensic Sciences Improvement Act (NFSIA). This legislation would provide sufficient funding to address the critical concerns facing forensic science and medical examiner's laboratories nationwide. Thank you for inviting me to share my opinions on these bills.

    Mr. CHABOT. Mr. Ferrara?

STATEMENT OF PAUL B. FERRARA, DIRECTOR, DIVISION OF FORENSIC SCIENCE, COMMONWEALTH OF VIRGINIA, DEPARTMENT OF CRIMINAL JUSTICE SERVICES, RICHMOND, VA

    Mr. FERRARA. Mr. Chairman, members of the committee, let me briefly make a couple of points so as not to repeat the wealth of information that you have already received.

    One, it is important for all of us to realize that within the use of DNA technology and DNA databanks for forensic purposes, the technology is such that the backlogs we currently face are really only scratching the surface. As we have trained law enforcement officers and they have seen what we can do with a myriad of different types of evidence in cases, they are correctly collecting evidence at a greater rate, and that is contributing to the backlog and will continue to do so.
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    The other side of the equation is that if we had no backlogs today, our forensic science laboratories—or certainly major laboratories, such as the three that are represented here on this panel, and of course, the FBI—all have the capability of evidence being collected at a crime scene, brought to a laboratory, an examination conducted within a matter of 24 hours of the offense, a database searched, and, absent any other leads or suspects, give the law enforcement agency the name of the perpetrator. Those first 24 to 48 hours are critical. That is the capability, the realization technically, that exists today if we had no backlog.

    The fact of the matter is we do have backlogs. We have them in Virginia—down to 600 cases that are backlogged now, and that is doing pretty good. By the end of the year, I hope there is none. But in fact I do have a backlog, and the only point that I would like to make that perhaps has not been is to describe to you from a personal standpoint what the direct impact of those backlogs are.

    I have two very brief examples. One is the situation of an innocent man charged with rape, sitting in jail, cannot make bail, declaring his innocence, convinced that the DNA results will exonerate him.

    In fact, when we got around to running his sample, 6 months later, after he had been in jail for that period of time, yes indeed, Raymond Holder was not guilty of any offense. The DNA proved his innocence. And of course, we see the same thing in Virginia that Dr. Adams described, and almost any of these laboratories, where 25 to 30 percent of the time, suspects are eliminated.
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    Raymond Holder lost 6 months of freedom. All things considered, he was lucky. Jemma Saunders was not so lucky. In 1998, Virginia Beach police officials suspected one Christopher Banks in a rape case that took place in Virginia Beach, the rape and stabbing of a woman. But until they could get our DNA test results back from my laboratory, they could only hold Christopher Banks on a shoplifting charge. They considered him a good suspect in the rape; they considered him a serious threat and asked us for an expedited analysis.

    Now, keep in mind that I had 1,000 other cases in backlog at that time—and all law enforcement officers want their cases expedited. But we had a priority system. We have 1,000 cases, and we have to worry first about cases that are going to trial; there are speedy trial requirements that we have to deal with. We are working serial rape cases, we are working serial murder cases, we are doing post-conviction testing, we are doing all kind of different cases. You understand that part of the picture.

    To make a long story short, we do not get the case done before Banks is released on the shoplifting charge, and 11 days later, Christopher Banks rapes and murders 22-year-old Jemma Saunders in Norfolk, Virginia. When we finally went back and got the Virginia Beach evidence, sure enough, Christopher Banks was responsible for that rape. If we had done that analysis 2 months earlier, Jemma Saunders would be alive today.

    So you can just see from that one case and that one example that not only can timely DNA analysis saves lives, but at the same time, it should demonstrate that backlogs cost lives and freedom.

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    Thank you.

    Mr. CHABOT. Thank you very much, Mr. Ferrara.

    [The prepared statement of Mr. Ferrara follows:]

PREPARED STATEMENT OF PAUL B. FERRARA, DIRECTOR, DIVISION OF FORENSIC SCIENCE, COMMONWEALTH OF VIRGINIA, DEPARTMENT OF CRIMINAL JUSTICE SERVICES, RICHMOND, VA

    Mr. Chairman, members of the Crime Sub-committee of the House Judiciary:

    It is not my intention nor should it be necessary for me to elaborate on the obvious benefits of the use of DNA technology and DNA Databanks to the public safety. What we all must realize, however, is that we have not even yet scratched the surface of its full potential. Our ability to identify individuals from the most minute and varied forms of plant, animal and human DNA are so extraordinary that even the use of fingerprints for identification does not provide a useful analogy. One can always avoid leaving fingerprints at a crime scene, but when our forensic scientists can identify an individual from objects such as a half-eaten chicken sandwich, urine in the snow, a lip-print on a glass or even cross-transfer of DNA from a handshake, one can and should predict the tremendous volume of potentially probative items of evidence that need to be collected and submitted for analysis by highly trained and qualified forensic scientists.

    This leads me now to the subject of backlogs: When I refer to DNA backlog issues in forensic science laboratories, it is important to consider that there are two distinct types of backlogs at issue:
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A. Backlogs of blood/saliva samples from convicted offenders which must be collected tested and entered into databanks in order to be useful for comparison purposes and;

B. Backlogs of crime scene evidence of the type described earlier which potentially contains the DNA profile of the perpetrator.

    It is imperative to recognize that both of these two types of backlogs must be addressed and eliminated almost simultaneously in order to achieve full realization of the power of DNA technology and databanks for forensic purposes. A databank is useless without a DNA profile to search against it and vice versa.

    So, what is this full realization to the criminal justice system and to the public safety to which I refer: Today, if there were no backlogs, we have the ability to collect this myriad of objects found at or around crime scenes which may have been in contact at one time or another with the perpetrator, victim or both. These objects can be collected and delivered to a forensic science laboratory within hours of their discovery; the laboratory then can develop DNA profiles found on these objects, within 24 hours search the forensic DNA profile against a local, state or National database consisting of hundreds of thousands of persons convicted of various violent or property crimes, and provide the names of the contributors of that DNA to the investigators. Thus within 24–48 hours of a crime, a laboratory can provide the investigators with the identity of individuals who may be associated with the crime. And those first days of an investigation are the most critical; investigators can then focus their attention on the best suspects, avoiding hours/days/weeks of chasing down dead-end leadsYor worse, focusing on an innocent individual. It has been our privilege in Virginia to do just this on occasion.
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    However, backlogs do exist even in Virginia and all over the country. Let me now describe to you the real impact of these backlogs and what happens as a direct result of these backlogs and what happens as a direct result of their existence:

    First there is a situation of an innocent man being held in jail charged with a rape he did not commit. Raymond Holder protested his innocence from the start and was confident that DNA testing would in fact exonerate him. But he couldn't make bail so he sat in jail until we finally got around to his case 6 months later. And the results confirmed that indeed, Raymond Holder was innocentYall he lost was 6 months of freedom.

    But compared to Jemma Saunders, Raymond Holder was fortunate; last year in Virginia Beach, police officials suspected one Christopher Banks in the rape and stabbing of a woman there. Until they could get DNA test results from us, they could only hold Banks on a shoplifting charge. They considered Banks a serious threat and asked us for an expedited analysis before his hearing on the shoplifting charge. At that time some 1000 other DNA cases were already in the backlog queueYcases going to trial, serial murder and rape cases, post-conviction cases, high profile casesYyou get the picture. So to make a long story short, we don't get the case done before Banks is released on the shoplifting charge. Eleven days later, Christopher Banks raped and killed 22-year old Jemma Saunders in Norfolk. When we finally got to the Virginia Beach evidence, our DNA analysis established that Banks had indeed committed the Virginia Beach rape and stabbing. Had we done that analysis in even 2 months, Jemma Saunders would be alive today. Hers is the real face of the impact of backlogs. On one hand one can see in just this one example among thousands of cases where timely DNA analyses can save lives but at the same time it should demonstrate that backlogs cost lives and freedom. Thank-you for your attention.
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    Mr. CHABOT. Mr. Steinhardt?

STATEMENT OF BARRY STEINHARDT, ESQ., ASSOCIATE DIRECTOR, AMERICAN CIVIL LIBERTIES UNION, WASHINGTON, DC

    Mr. STEINHARDT. Thank you, Mr. Chairman. I thank you and the ranking member for allowing me to testify today.

    In my written testimony, I discuss the specific features of the three bills that are before you in some detail, but this afternoon, I wanted to concentrate on some larger issues.

    Let me start with what I hope we can all agree on, which is that drawing a DNA sample from someone is not the same as taking a fingerprint. A fingerprint is nothing more than a two-dimensional representation of the tips of our fingers. It is good for one purpose only, which is identification.

    The samples that are drawn for the purpose of doing DNA testing, whether blood or saliva or any other biological sample that is capable of being tested for genetic characteristics, are far more than that. DNA harbors our innermost secrets. There are—and this number will increase over time—but there are now thousands of diseases for which there are genetic markers. There are people who believe that there are genetic markers for behavioral characteristics, for aggression, for criminal tendencies. There are people who believe there is a gene for sexual orientation, a so-called gay gene.
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    DNA is very, very powerful material, and I think it trivializes the taking of a DNA sample to call it a ''genetic fingerprint.'' It is far more than that.

    We are very concerned about the fact—and the issue of sample retention has already been discussed briefly here this afternoon—that not a single jurisdiction in this country which takes biological samples, whether it is blood or saliva or any other biological samples, for DNA identification destroys those samples. That includes not only the samples that are taken for forensic purposes—the kind of thing we are discussing here this afternoon—but for example, the military, which takes millions of blood samples from military personnel for the purpose of doing DNA typing to be used in the event that that person happened to be killed while on duty, refuses to destroy those samples even after teh person has left the military and in fact holds onto them for 50 years.

    Why am I concerned about that? Why am I concerned about all this blood being warehoused around the country? I am concerned for a couple reasons. One is because the State statutes which authorize DNA data-banking are at best inconsistent in the additional tests that they allow to be performed on DNA, on these biological samples, going beyond the DNA typing for identification purposes that we are talking about here today.

    I detail some of this in my written testimony, and if the committee will allow me to give you an additional memorandum next week, I can give you a complete accounting of each of the 50 States, but just to give you a few examples of that, in Massachusetts, for example, there is an open-ended authorization for the use of this biological material for ''humanitarian purposes or for any purpose which is a condition of Federal funding.'' Now, that, of course, is a loophole that you could drive a mack truck through.
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    There is a whole host of States that allow for access to this material by any law enforcement agency, not necessarily for identification purposes, but it just simply says ''for any law enforcement agency,'' and we will detail that for you in a memorandum that we will submit to the committee next week.

    Now, compounding this problem, of course, is the fact that there are very few laws in this country, and certainly none at the Federal level, which comprehensively prohibit genetic discrimination by employers, by insurers, by medical care providers or by anyone else, and there is in fact a long history in this country of what many of us in the privacy community call ''function creep'' where databases that are created for one purpose eventually get used for other purposes because someone puts forward a legitimate or a beneficial use. The best example of that, of course, is the Social Security number. When my parents and grandparents were first assigned Social Security numbers, they were told that they would only be used for a single purpose which is to identify them for this retention program; and they of course gladly signed up and got a Social Security number.

    Now, we all know what has happened, which is that Social Security numbers have become in fact nearly a universal identifier. But Social Security numbers are not the only example of that. We have had any number of governmentally-created databases which are used for purposes that have no relation to their original purpose. We have recently, for example, had documentation come forward about the use of Census records in World War II to round up loyal Japanese Americans and put them into internment camps.

    So I think we have reason to be concerned about what is going to happen to all this blood out there, both because of this problem of function creep and also because of the variety of State laws that authorize the use of this biological material for other kinds of tests.
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    Why do I think that it is possible now to destroy the biological samples? In part, I am comforted in fact by something that Dr. Ferrara said. Dr. Ferrara told Congressional Quarterly that, ''The forensic science community has now settled on a standardized location to use in DNA profiling.'' He went on to say, ''If I got rid of the samples, I could live with it today, because I know it is all right.''

    I think Dr. Ferrara was correct in saying that. The scientific community has settled on the 13 loci to examine for the purposes of DNA typing. We may well have advances in teh technology, but I do not believe that any time in the near future, the scientific community is going to reverse that course or is going to say, ''No—let us test a different part of the genome.'' I think it is possible in fact to destroy the samples, and I think we need to destroy those samples—and when I say ''destroy'' them, I mean after they have been entered into the CODIS database and after their is a reasonable period of time. But I think we do have to destroy them, because we are talking about very, very significant information and a long history in this country of misuse of databases.

    By the way, let me just add, since I know I am over time, a couple of other points that we also make in the written testimony. One of those will be made by Ms. Greene, and that is I think it is important that as a condition of Federal funding and of participation in the CODIS program that the States should be required to allow the kind of post-conviction DNA testing that the National Commission on DNA Evidence has proposed, that is proposed in the Leahy legislation. I think that is only fair.

    We say, all of us, that DNA testing can be used both to capture the guilty but also to exonerate the innocent, but there are actually innocent people out there who are not in a position to use that evidence.
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    Third, I think you need to be very careful about the expansion of these DNA databases. We have gone in a very short time, as Dr. Ferrara and others have said, from sex offenders to people who have been convicted of other violent crimes to juvenile offenders to, even in one State, Louisiana, arrestees, to even propose this around the country, to DNA-type and retain samples on all newborns.

    There is a sort of creeping increase and expansion of these databases which I think the Congress should discourage by conditioning the receipt of this funding on a limitation on the number of offenses which can trigger this testing and a limitation that only persons who have been convicted of crimes can be tested.

    Thank you.

    Mr. CHABOT. Thank you for your testimony.

    [The prepared statement of Mr. Steinhardt follows:]

PREPARED STATEMENT OF BARRY STEINHARDT, ESQ., ASSOCIATE DIRECTOR, AMERICAN CIVIL LIBERTIES UNION, WASHINGTON, DC

    First let me thank Chairman McCollum and Ranking Member Mr. Scott for inviting me to speak today. This is an important issue to the American Civil Liberties Union and we appreciate the opportunity to testify. The ACLU is a nationwide, non-profit organization consisting of nearly 300,000 members dedicated to protecting the principles of freedom and liberty set forth in the Bill of Rights.
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    These hearings come at a time when DNA is much in the news. Emerging DNA technology holds tremendous potential for the diagnosis and treatment of disease. In the criminal justice arena, it has the potential to both exonerate the innocent and to identify the guilty. Yet, this potential comes with significant risks that highly personal and sensitive information will fall into the wrong hands, leading to a loss of privacy and genetic discrimination.

    Today I will discuss our recommendations for addressing the risks to civil rights and civil liberties as we take advantage of the positive potential that this new technology holds.

    I will describe a number of concerns about all the bills that are before you, not the least of which is that they mandate the non-consensual collection of genetic information.

    My testimony today will also recommend that any bill considered by this Committee include four additional elements:

1. That receipt of federal funds for processing forensic DNA samples and participation in the CODIS program be conditioned on states making DNA testing available to criminal defendants that have claims of innocence and removal of post conviction bars to consideration of this evidence,

2. That as a further condition for the receipt of federal funding and participation in CODIS that the biological samples (blood, saliva, etc.) upon which the identification testing is performed be destroyed within a reasonable period after testing is completed and pending criminal matters are resolved,
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3. That the genetic profiles entered into CODIS from the states should be limited to those from persons convicted of serious violent felonies, where biological evidence is relevant,

4. That as a further condition for the receipt of federal funding, as well as participation in CODIS, that the states be prohibited from performing non-consensual genetic testing on accused persons, who have not been convicted, except where a court has granted an order requiring such testing.

    Let me start with a point that I hope we can all agree on. Drawing a DNA sample is not the same as taking a fingerprint. Fingerprints are two-dimensional representations of the physical attributes of our fingertips. They are useful only as a form of identification. DNA profiling may be used for identification purposes, but the DNA itself represents far more than a fingerprint. Indeed, it trivializes DNA data banking to call it a genetic fingerprint.

    I understand that the CODIS system only contains a limited amount of genetic information compiled for identification purposes. But the amount of personal and private data contained in a DNA specimen makes its seizure extraordinary in both its nature and scope. The DNA samples that are being held by the federal, state and local governments can provide insights into the most personal family relationships and the most intimate workings of the human body, including the likelihood of the occurrence of thousands of genetic conditions and diseases. DNA may reveal private information such as legitimacy at birth, and there are many who will claim that there are genetic markers for aggression, substance addiction, criminal tendencies and sexual orientation.

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    And because genetic information pertains not only to the individual whose DNA is sampled, but to everyone who shares in that person's bloodline, potential threats to genetic privacy posed by their collection extend well beyond the millions of people whose samples are currently on file.

    It is worth recalling that there is a long unfortunate history of despicable behavior by governments toward people whose genetic composition has been considered ''abnormal'' under the prevailing societal standards of the day.

    In recounting that history and documenting its privacy concerns, the National Research Council Report in DNA Technology in Forensic Sciences said:

    ''These privacy concerns are far from abstract. The eugenics movement in this country, which resulted in thousands of involuntary sterilizations, the suggested screening of violent men for extra Y chromosomes, the sickle cell screening tests employed to prohibit marriages, and the current privacy concerns over HIV screening, underlie the Panel's following recommendation: Use of a data bank for other than law enforcement suspect identification purposes should be expressly prohibited and subject to criminal penalties.''

    Genetic discrimination by the government is not merely an artifact of the distant past. During the 1970s, the Air Force refused to allow healthy individuals who carried one copy of the sickle-cell gene to engage in flight training, even though two copies of the gene are needed for symptoms of sickle-cell disease to develop. The Lawrence Livermore laboratory only recently settled a case brought by African American employees who were subjected to secret genetic testing for the sickle cell trait.
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    Genetic discrimination by private industry is becoming increasingly commonplace as well. A 1997 survey conducted by the American Management Association found that six to ten percent of responding employers (well over 6,000 companies) used genetic testing for employment purposes. The Council for Responsible Genetics, a nonprofit advocacy group based in Cambridge, Mass. has documented hundreds of cases in which healthy people have been denied insurance or a job based on genetic ''predictions.''

    In short, there is a frightening potential for a brave new world where genetic information is routinely collected and its use results in abuse and discrimination.

    Now, I am certainly aware that the primary purpose of forensic DNA databases like CODIS is identification and that the profiles are of 13 loci that currently provide no other information. However, we need to bear in mind that the local jurisdictions who are contributing genetic identification profiles to the CODIS data base are all collecting and retaining biological material that contains DNA. That biological material—blood, saliva, etc.—can be subjected to a virtually limitless number of additional genetic tests. To my knowledge not a single jurisdiction destroys the biological material after the testing is completed.

    While a DNA data bank for criminal identification purposes may have legitimate uses, I am skeptical that we can hold the line and ward off the temptation to expand its use to non-forensic purposes. Our country has a long history of function creep—of databases, which are created for one discrete purpose and, which despite the initial promises of the their creators, eventually take on new functions and purposes. In the 1930's, promises were made that the Social Security numbers would only be used as an aid for the new retirement program, but over the past 60 years they have gradually become the universal identifier that their creators claimed they would not be. Similarly, as recent disclosures make clear census records created for general statistical purposes were used during World War II to round up innocent Japanese Americans and to place them in interment camps.
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    We are already beginning to see that function creep in DNA databases themselves. In a very short time, we have witnessed the ever-widening scope of the target groups from whom law enforcement collects DNA and rapid-fire proposals to expand the populations to new and ever greater numbers of persons. In less than a decade, we have gone from collecting DNA from convicted sex offenders—on the theory that they are likely to be recidivists and that they frequently leave biological evidence—to data banks of all violent offenders; to juvenile offenders in 29 states; to testing of persons who have been arrested, but not convicted of a crime. There have even been proposals, like that made by the Michigan Commission on Genetic Privacy, to permanently preserve blood samples of newborns that have been obtained to detect rare congenital diseases and to store them for law enforcement and research purposes.

    I am skeptical because too many state statutes allow evidence, which has been purportedly collected only for identification purposes, to be used for a variety of other purposes. Massachusetts's law, for example, contains an open-ended authorization for any disclosure that is, or may be, required as a condition of federal funding and allows for the disclosure of information, including personally identifiable information for ''advancing other humanitarian purposes.'' (MA ST22 ss,12,13 West 1999).

    North Dakota law requires DNA records to be made available to ''any public official who requires that information in connection with discharge of the official's official duties''. (N.D.Century Code Sec. 31–13–06).

    The State of Mississippi has no statutory restrictions on the use of forensic DNA and leaves it to the Mississippi State Crime Lab to determine any restrictions. (Miss. Code Ann. Sec. 45–33–15).
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    Nevada's law simply provides ''that samples be used for an analysis to determine the genetic markers of the blood.'' There is no definition of the term ''genetic markers'', which on its face could include any information that could be derived from DNA and no restrictions on the use or availability of the DNA sample or test results. (Nev.Rev.Stat.S 176.0913)

    A host of states generally make the data available to law enforcement agencies without further restriction, thus implicitly allowing genetic tests for physical and mental traits or for predisposition to disease. (See, for example, Arizona Stat s 31–281, Arkansas Code Ann.ss 12–12–1105–1113, California Penal Code s 299.5, Colorado St, s 17–2–201, Delaware Code Ann. Tit. 29 Sec.4713, et.seq.)

    Each of the three bills before you today contains exceptions that would allow CODIS to be used for non-forensic purposes—either for a population statistics database, for identification research and protocol development purposes or for quality control purposes. While all of these non-forensic purposes sound innocuous, they will likely be just the first step in making the forensic databases and all of the stored genetic samples available for other purposes.

    Over time the temptation to use the stored genetic information and DNA for ''the common good'' may prove irresistible. Statutory restrictions that exist today can be swept aside tomorrow.

    I am skeptical too because even outside the criminal justice system, too many holders of DNA data refuse to destroy or return that data even after the purported purpose has been satisfied.
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    The Department of Defense, for example has on the order of three million biological samples it has collected from service personnel for the stated purpose of identifying remains or body parts of a soldier killed on duty. But it keeps those samples for information for 50 years—long after the subjects have left the military. And the DOD refuses to promulgate regulations that would assure that no third parties would have access to the records. Isn't it likely that once the genetic information is collected and banked, pressures will mount to use it for other purposes than the ones for which it was gathered, such as the identification of criminal suspects or medical research?

    Like the Department of Defense, the FBI makes no provisions to destroy the samples once they have served their purpose—producing a DNA code of a criminal suspect. None of the bills before the committee provide for destruction of the DNA samples after the testing is completed. While the FBI would like us to believe that the samples will never be used for anything besides catching criminals, the sad truth is that if those samples are retained, at some point, they will be used improperly. In fact each of the three bills before you today would required the test results be expunged for persons who have their conviction overturned, but does not require that the potentially more significant biological samples be destroyed.

    Compounding this problem is that there are few laws, and certainly none at the federal level, which comprehensively prohibit genetic discrimination by employers, insurers or medical care providers. More and more DNA is being collected, and with the advances in genetic research that make that DNA more and more valuable, instances of discrimination and misuse will grow as well. Destroying the samples will go a long way to protecting the privacy of Americans.

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    The scientific community has now settled on a uniform set of DNA locations to be tested and a common testing methodology. This scientific consensus has been incorporated into requirements for the CODIS system and there is simply no longer any justification for retaining the biological samples after they have been tested and the results have been entered into CODIS.

    Besides destroying the samples, the ACLU also recommends that restrictions be placed on the breadth of the information that is stored in CODIS. The ACLU is very troubled by the prospect of arrestee testing. The State Louisiana already allows DNA testing to be done on persons who have been arrested for certain crimes, but who have never had there day in Court. Many law enforcement officials from around the country are making similar calls.

    Adding samples from arrestees to CODIS means that persons who may not have ever been convicted or even prosecuted for a crime—innocent Americans, will have their DNA permanently entered into a massive federal database. This is unacceptable.

    A study released by the California State Assembly's Commission on the Status of African American Males in the early 1990's revealed that 64 percent of the drug arrests of whites and 81 percent of Latinos were not sustainable, and that an astonishing 92 percent of the black men arrested by police on drug charges were subsequently released for lack of evidence or inadmissible evidence. Indeed, there is a disturbing element of racial disparity that runs throughout our criminal justice system that can only be compounded by the creation of databases of persons arrested but not convicted of crimes.

    Now I make no secret of the ACLU's opposition to DNA data banking, even for convicted felons. We have argued and will continue to argue that these are intrusive, unreasonable searches made without the individualized suspicion required by the Fourth Amendment and analogous provisions of state constitutions. But, even if you accept the rulings that DNA data banking for convicted felons is permissible, either because a special need is present where persons have been convicted of crimes with high recidivism rates and the presence of biological evidence like sexual assaults, or that convicted felons have a diminished expectation of privacy, neither of those circumstances apply to persons who have simply been arrested. CODIS should not house the genetic profiles of persons who have never been convicted of a crime.
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    To do so is to equate arrest with guilt and to empower police officers, rather than judges and juries, with the power to force persons to provide the state with evidence that harbors many of their most intimate secrets and those of their blood relatives. Under the current circumstances of mistrust, that is an especially chilling notion for a New Yorker. While Congress does not have the authority to change state laws prohibiting the testing of persons arrested for crimes, it does have the authority, and the responsibility, to protect the privacy of Americans by placing restrictions on the type of data that can be entered into CODIS. CODIS should only be used for crimes of violence, where biological evidence is likely to be present and the Congress should specifically prohibit the expenditure of Federal funds to assist states, which engage in pre-trial DNA data banking.

    Lastly, any bill should be even handed and fair in the uses which DNA can be made of DNA evidence. The proponents of DNA data banking argue that it can be used both identify the guilty and to exonerate the innocent. But too often procedural bars prevent the actually innocent from using DNA to establish their innocence.

    Congress must require that states make DNA testing and records available to persons convicted of crimes who did not have access to DNA evidence at the time of their trial. If we are serious about protecting the innocent as well as punishing the guilty, it is only fair that criminal defendants be given the opportunity to use DNA technology that was not previously available. The National Commission on the Future of DNA evidence has proposed a uniform statute concerning the post-conviction use of DNA testing. Additionally, Senator Leahy has introduced a bill that would require states to make testing available. We urge the Committee to condition funding to the states by requiring them to provide the protections outlined in these proposals.
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    Now, let me specifically discuss the three bills that are pending before the Committee. The ACLU cannot support any legislation which mandates or encourages non-consensual DNA testing. However, if the Committee intends to proceed with legislation, we recommend that you make H.R. 3087, the bill sponsored by Mr. Weiner and others, your starting point.

    This bill would offer federal funding to states to process the backlog of DNA samples and require that each laboratory performing DNA analyses satisfy quality assurance standards. But it does not expand the current reach of CODIS.

    If you do act on H.R.3087, we would urge the removal of subsection (2)(D), which would allow DNA data to be used for non-forensic purposes.

    While two other two bills would similarly provide federal funding to address the DNA backlog, they would also expand the scope of CODIS. Both H.R.2810 and H.R.3375 would expand DNA data banking to include federal and military offenders, as well as persons convicted of offenses in the District of Columbia. H.R. 3375 would also allow the inclusion of the genetic records of juveniles in CODIS and would encourage the states to collect those records. The ACLU opposes this expansion.

    Having stated our opposition to H.R. 2810 and 3375, I will note that H.R. 2810, the Chabot/Kennedy bill does contain provisions which are more protective of privacy than H.R. 3375. There are a number of provisions that from this bill that we support:

    H.R. 2810 has a smaller number of ''qualifying offenses''—those crimes for which DNA samples will be collected. H.R. 3375 defines a qualifying offense as any crime of violence including misdemeanor offenses whereas 2810 is limited to serious violent felonies and burglaries. In our opinion, because CODIS will be a permanent government repository of genetic material and records, only the most serious offenses should be included within it.
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    H.R. 2810 provides for ''automatic'' removal of the DNA record if a conviction is reversed or vitiated. H.R. 3375 does not make the removal requirement automatic. Unless the removal requirement is automatic, the FBI will put the onus on the individual to come forward and request that her record be expunged. The automatic removal provision will help to ensure that innocent people's DNA samples and records are not part of the permanent database.

    H.R. 2810 does not include samples from juveniles adjudicated delinquent, H.R. 3375 does. Juvenile adjudications are not criminal convictions—they should not be included within a permanent database of criminal convictions. It is astonishing to think that a youthful offense could result in a child's DNA becoming part of a permanent federal database.

    In summary, we recommend the following measures.

 There should be a procedure established for destroying the physical sample used in the DNA testing. It is one thing for the government to permanently store a genetic fingerprint; it is altogether different for the government to permanently retain the biological samples, which can be used for future genetic testing.

 Only persons convicted of serious violent felonies should have their DNA entered into CODIS. While we understand the federal government's desire to help the states address their DNA backlogs, the government should only include the test results from persons who have been convicted of serious violent felonies and where biological evidence could be relevant. There is no reason for CODIS to contain DNA profiles from persons who were never convicted of a crime or who were convicted of non-violent crimes. No Federal funds should be available to states which engage in arrestee testing.
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 States should provide criminal defendants with access to DNA testing to establish their innocence. While the government wants to use CODIS as a sword to prosecute criminals, it must also make it a shield to protect the innocent. Congress must require that the States make DNA testing available post conviction to those who could not avail themselves of DNA technology at the time of trial.

    We would be happy to work with the committee to help incorporate these recommendations. Once again, thank you for seeking our input into this process.

    Mr. CHABOT. Our final witness this afternoon is Ms. Siegel Greene.

STATEMENT OF JANE SIEGEL GREENE, ESQ., EXECUTIVE DIRECTOR, THE INNOCENCE PROJECT, NEW YORK, NY

    Ms. GREENE. Thank you.

    As you noted, I am executive director of The Innocence Project in New York City, and I work with Barry Scheck and Peter Neufeld, and I am speaking today on behalf of all of us at The Innocence Project. Mr. Scheck and Mr. Neufeld serve as commissioners on the Forensic Science Commission in New York State, which regulates all 22 crime labs in New York as well as the DNA databank.

    The Innocence Project is a clinical program at Cardoza Law School which uses DNA testing to exonerate people who claim to have been wrongfully convicted. We have 200 clients and over 1,000 pending cases waiting to be evaluated. To date, there have been 70 exonerations based on DNA testing, 64 in the United States and 6 in Canada.
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    One of the key issues for us at The Innocence Project is that every time a prisoner is exonerated, this necessarily means that the true assailant is still out on the street and possibly, if not probably, committing additional crimes. This presents a very real public safety concern that the DNA databanks serve a vital purpose in ameliorating. In fact, in 15 of the DNA exonerations thus far, the DNA profile was put into the databank, and the true perpetrator was actually identified in that way.

    I would like to particularly discuss today a subclass of the old, unsolved backlog cases that consist of the type of cases that we take at The Innocence Project, meaning they are convicted prisoners who claim to be innocent and DNA testing would be able to vindicate that claim.

    Senator Leahy recently introduced a bill entitled ''The Innocence Project Act'' which addresses many of these issues. One part of Senator Leahy's bill would amend the DNA database statute to condition Federal funding to States on their passing statutes that would allow post-conviction DNA testing regardless of statute of limitation bars, and these statutes would allow testing—the standard that is used is where there is a reasonable probability that the DNA could prove innocence.

    The Innocence Protection Act would also require States to preserve evidence until the inmate is released from prison, and if the State wants to destroy the evidence, it must give fair notice to the inmate. These provisions are crucial in any discussion of DNA and eliminating backlog in these innocence cases, because right now it is very difficult to obtain access to the evidence for DNA testing, and even where there is access granted, it is often rendered moot because the evidence has been destroyed, and there is nothing that we can do.
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    Further, unlike some of the other categories of the backlog that have been discussed today, these innocence-type cases consist of a discrete class of cases that can easily and relatively inexpensively be dealt with. These are inmates who were convicted either before the advent of forensic DNA testing or before the technology had advanced to a sufficient degree to obtain conclusive results. This is a finite class of cases which is relatively small to begin with and will only decrease as pretrial testing becomes more common and accessible.

    Most important is the urgent need to test the evidence from these cases as soon as possible because, as I noted, the evidence is being destroyed even as we sit today, and without the biological evidence to conduct DNA testing on, there is simply no way for these prisoners to prove their innocence, and many of these prisoners are either on death row or are serving life sentences without the possibility of parole, so this is their only shot at proving their actual innocence.

    Some people voice concerns that to open up this backlog of innocence cases would open the floodgates and would cost millions and millions of dollars. This is simply not true for a variety of reasons. First, it is a very narrow class of cases that have evidence that is susceptible to DNA testing. It is usually mostly in sexual assault cases, sometimes murder cases. But we receive thousands of letters every year, and we accept only a fraction of those cases that are seeking our assistance, because there is just not DNA testing that would be relevant.

    Second, we have found that in over 70 percent of the cases that we do go on to accept and work on, the evidence has been lost or destroyed, forcing us to close the case, and there is nothing further that we or usually anyone can do to help these people.
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    Further, with regard to the actual cost of DNA testing, as noted above, there is a very small number of cases that would actually require DNA testing, and in terms of the actual testing cost, it is typically between $3,000 and $5,000 to do a full analysis. Based on the number of cases eligible for testing, it would cost well under $500,000 a year to test every case nationwide where the inmate has a legitimate claim of innocence.

    Finally, the Leahy bill would require the State to pay for DNA testing only in certain circumstances, and generally, if the inmate has sufficient means, the inmate would be responsible for the cost of the testing, and if the State paid for the testing, and the inmate was found to be included, a court could impose costs on the inmate.

    Many crime labs have taken the position that they do not have the authority to use Federal funding to test this portion of the backlog. This must be rectified immediately, because it is crucial to test these cases as quickly as possible, before the evidence is destroyed, because the more time that elapses, the chance is lost not only to prove these people's innocence, but to also apprehend the true perpetrator.

    Therefore, we would support any bill that reflects these concerns.

    Thank you very much.

    Mr. CHABOT. Thank you very much for your testimony.

    I thank all the witnesses for their testimony this afternoon.
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    The members now have 5 minutes to ask questions if they choose to do so, and I will recognize myself for 5 minutes.

    I will direct this question first to Messrs. Coffman, Sheppo and Ferrara. Would you support the establishment of a missing persons database within CODIS? You can answer in any order that you would like to.

    Mr. FERRARA. With respect to the current status of the forensic science laboratories and the databanks, when we have cases involving missing children, missing persons, it is awfully difficult to get an exemplar sample of cellular material that is representative of that missing person. We have to go to the individual's parents, relatives, and so on.

    The program that John Walsh promotes on ''Missing Persons'' involves simply a collection of the sample but not a DNA analysis; it is just a source of samples for reference purposes in the future. It is hard for me to conceive of a database on a State level of missing persons, but if there were within the CODIS system a file of DNA profiles representative of children who were missing, that would allow other laboratories like ours, when we encounter a profile—for example, an unidentified body—to assist in that identification.

    Mr. CHABOT. Do either of you gentlemen have a comment?

    Mr. SHEPPO. I would agree with what Dr. Ferrara has said. Basically, if in fact something like this were going to be very beneficial, I think we would almost have to collect samples from all individuals and have them in a special database that could be compared to biological evidence which has been found at a crime scene. I think that that is a very commendable project, however, a very big and very expensive project, and also probably some difficulty with being able to collect those samples and protect them in a database.
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    Mr. CHABOT. Thank you.

    Mr. Coffman?

    Mr. COFFMAN. I just want to add that I think it would be a useful function; however, I think the mechanism would be in place to make it totally voluntary as far as the people who are looking for individuals, understanding that it would not be searched against any other database.

    Mr. CHABOT. Thank you.

    Mr. Steinhardt or Ms. Siegel Greene, would you have a comment?

    Mr. STEINHARDT. We have been asked that question at the ACLU and gave essentially the same response that Mr. Coffman just gave, which is as long as the parents—that is whom we are usually talking about—give the sample voluntarily, and it is not checked against other pieces of evidence, we certainly have no objection to it. It is a worthwhile project.

    Mr. CHABOT. Thank you very much.

    I do not recall if it was Mr. Sheppo or Mr. Ferrara who mentioned that less than half of the crime labs are credited. Was that Mr. Sheppo?

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    Mr. SHEPPO. Yes, sir.

    Mr. CHABOT. Let me just ask you, is defense counsel able to use that at trial? I was curious about that.

    Mr. SHEPPO. I cannot really comment on that. I assume that it has occurred. In fact, it did occur in one large case out on the West Coast a few years ago, and it was brought up with reference to that case.

    However, in Illinois, we have been accredited for the past 20 years, and it has not been an issue in our State. However, I believe the potential is there.

    Mr. CHABOT. Okay. Thank you.

    I am getting a little short on time, so this will probably be my last question. Relative to the States that you represent, which offenses are qualifying offenses in the various States that you are familiar with which require offenders to provide samples? Would it be violent felonies or all felonies or juvenile offenses?

    Mr. FERRARA. In Virginia, it is all felonies. I would just add one very interesting observation that we have made over the course of our 135 hits. What we have found really remarkable is that in approximately 40 to 50 percent of the rape and murder cases that we have solved using our databank, the sample that we had from the convicted felon was the direct result of his conviction of a property crime. That means that I would have only had half those hits if the statute in Virginia were limited just to murderers and violent felons.
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    Mr. COFFMAN. We have the similar case in Florida. Fifty-two percent of the people we have matched, offenders, to sexual assault and homicides had a prior burglary earlier in their careers and as a matter of fact continued throughout their career. That is why this year, we asking to add burglary.

    I also think another point should be made, that it really is State-dependent on which ones they collect. For instance, in our State, a very common plea bargain for someone charged with sexual assault is aggravated battery. We added aggravated battery our fifth year into our process, and we basically quadrupled the number of matches we had to sexual assaults, because the system was letting them slip through the cracks.

    Mr. SHEPPO. In Illinois presently, it is only sexual offenses, but with the addition of Senate bill 644, violent crimes would be added to that, and I anticipate that burglary eventually be as well.

    Mr. CHABOT. Do any of the three allow juvenile offenses?

    Mr. COFFMAN. I was just going to say I wanted to mention that we have allowed juveniles from the beginning. The reason we did that was simply because our IAFIS fingerprint system has several million fingerprints on file, and only about 178,000 of those fingerprints in the IAFIS system come from juvenile offenders. So approximately 11 percent of our fingerprints in our IAFIS system are from juvenile offenders. However, 46 percent of our IAFIS matches come from that 11 percent of those fingerprint files, and they are not juveniles at the time the hit occurs.
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    Mr. CHABOT. Thank you.

    Dr. Ferrara, how about Virginia?

    Mr. FERRARA. In 1996, our statute was expanded to include for purposes of the databank juveniles age 14 or older who have been convicted of what would have been a felony if they were an adult.

    Mr. CHABOT. Thank you very much.

    My time has expired, and I now recognize the gentleman from Virginia for 5 minutes.

    Mr. SCOTT. Thank you.

    Ms. Siegel Greene, of those that you test, what portion of those are determined to be innocent of the charges?

    Ms. GREENE. About 60 percent are excluded by the testing.

    Mr. SCOTT. Sixty percent are not guilty of those that you actually test?

    Ms. GREENE. Right. Of those that we actually test, 60 percent come back not guilty, 40 percent come back that they are included, and they are guilty, in which case, we just close the case.
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    Mr. SCOTT. And in 70 percent of the cases that you try to work on, the evidence is not there for testing?

    Ms. GREENE. Right. So we only send a very small number of cases—probably 10 to 12 cases a year actually go out for DNA testing.

    Mr. SCOTT. Do you have an estimate as to how much it would cost to eliminate the backlog—if we were to just write a check to eliminate the backlog, what would it cost, nationally?

    Mr. FERRARA. Nationally? Of course, we know that we have been talking about two types of backlogs—convicted felons and crime scene work. For convicted felons, my recommendation would be a figure of at least $50 to $60 for every convicted felon sample that is backlogged—whatever number we use. If we are using 100,000, then 100,000 times $50 or $60.

    Now, that does not include——

    Mr. SCOTT. One hundred thousand times $10 is $1 million, so you are talking about $5 or $6 million.

    Mr. FERRARA. For a backlog of 100,000 samples. But I believe the actual number of convicted felon samples is in the million——

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    Mr. SCOTT. So you are talking $50 million to get all convicted felons for which there are present samples?

    Mr. FERRARA. For which there are samples; that is right.

    Mr. SCOTT. Okay.

    Mr. FERRARA. And that would assume we outsourced the samples and would not include the cost of the quality assurance work that needs to be done in the laboratory that is issuing teh contract.

    Mr. SCOTT. Okay, let me go on. That is obviously not a precise number; it is just an estimate to get an order of magnitude of what we are talking about.

    Dr. Ferrara, if you did not have a backlog in Virginia, how long would it have taken you to do Christopher Banks' case, if we had spent the $50 million and eliminated your backlog?

    Mr. FERRARA. A week at the max.

    Mr. SCOTT. Mr. Steinhardt, why should the treatment of DNA profiles be different from the treatment of fingerprint profiles that we have now that are in a databank?

    Mr. STEINHARDT. I think you need to distinguish between the DNA profiles the identification test, the kind of data that is kept in the CODIS system and the DNA samples, whether it is blood or saliva or whatever the biological sample is.
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    We put all our focus on the CODIS system and on the DNA identification, and there has been very little attention paid to all this biological material, usually blood, which is being stored around the country and can be tested for other purposes. As I suggest in my testimony, a good number of the State statutes allow for testing of the original blood sample for virtually unlimited purposes. I think that what we have out there is extremely inviting data, extremely inviting information, that various parties are going to be interested in getting, whether it insurance companies or employers or educators who might be looking for an aggression gene in a child.

    Some of you may know in fact that the Nation of Iceland recently sold its entire database of genetic and medical information to a private company. While that may not be practical in the United States, which is a much larger country and not as insular in its population and its genetic profile as Iceland, it is the kind of thing which is coming here as well if we do not get a handle now on all of this material which has been collected not only for these forensic purposes but for a whole list of other purposes and by a whole list of other governmental bodies, including the military.

    Mr. SCOTT. In terms of information, if all you had were the identifier, the index code, should that be treated any different than fingerprints are now?

    Mr. STEINHARDT. No—I think the privacy concerns that I have are gravely diminished—and I underscore the word ''gravely''—if all you had were what we are referring to here today as the ''identification code,'' yes. Then it does become the equivalent of a fingerprint.
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    Mr. SCOTT. Let me ask the laboratory representatives——

    Mr. CHABOT. The gentleman is recognized for an additional minute.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Do you have any problem with just keeping the identifying code and not the material itself?

    Mr. SHEPPO. We do have concerns with reference to changing technology. At the present time, it looks like the technology that we do have on board will remain for a while. However, it is hard to tell what could happen in a year or two. In Illinois, for example, if in fact a faster method of analysis occurred, and it actually changed the loci that we were looking at, we would certainly have to consider it depending upon the resources we have available to us.

    So it is a difficult question to answer. At the present time, we can get along with only the code. However, the necessity to go back and reanalyze those samples and collect them again from offenders would be very cost-prohibitive in the future.

    Mr. FERRARA. I would like to add one other aspect of the retention of the samples to which I did not allude in the Congressional Quarterly.
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    As Mr. Sheppo indicated, we have gone through many different changes in technology in teh last 10 years, but we have now settled on these 13 core loci. Realistically, if we are going to establish large DNA databanks, we cannot deviate and should not and will not deviate from those 13 genetic loci in the next 10 to 20 years—but there probably will be better methods to get there. After 10 or 20 years, there may be better loci to use.

    However, the other side of retention of the original sample goes to the issue of quality assurance. Keep in mind that that sample from a convicted felon is the basis of the probable cause when that sample is matched against the crime scene material. Laboratories are dealing with hundreds of thousands of samples.

    When we make a hit in Virginia, a crime scene matches a DNA profile that is in my computer, before I even call the police to say here is the name of your perpetrator, we go back to the original sample, take a cutting, and run it again just to make sure that we do not send the police out to arrest somebody because we happen to have mixed two samples.

    Realistically, gentlemen——

    Mr. SCOTT. Mr. Chairman, if I could follow up on that, when we were discussing this in the State Senate, I thought we had the understanding that you would not rely on the catalogued situation—if you had a hit, that would be probable cause, you would arrest the person and then get a new sample from the person at that time, so you would not have a 20-year-old chain of custody problem, and compare that sample that you know you got from that person to the sample of the crime scene.
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    Mr. FERRARA. You are right; that is exactly the way we do it. The step I just described is before we even go out and tell the officer so that he will arrest the person and then get a known sample, and then the third comparison is done.

    It is just a second measure that we like to use before we send the law enforcement officer out to arrest somebody simply on the basis of the match between a sample in the databank and the sample at the crime scene. It is a double check.

    Whenever there is a question about sample mixup in our laboratory, we have those original samples to go back to, and I would expect that if, in a courtroom, we could not even produce or had to admit that we do not even have the original sample, the basis upon which the whole probable cause was made, then, perhaps it would even be illegal to destroy that evidence.

    Mr. CHABOT. The gentleman's time has expired. Do you have one final question, and if the responder could respond relatively briefly, because we are way over time.

    Mr. SCOTT. Thank you, Mr. Chairman.

    I would like Mr. Steinhardt to advise us as to Constitutional issues—obviously, you cannot do that in the time frame—but if you would notify us of the Constitutional issues that we ought to be looking at, and if possible, court review of questions to support those issues. For example, if we want to expand the number of people to be tested to include people convicted in Federal court, whether there is a Constitutional issue of requiring the sample as a condition of release for people who are already in jail after they have been convicted—for the new people convicted and sentenced, that would just be part of the sentence, but after the fact—and any other Constitutional issues that we should be reviewing. Obviously, you do not have time for a response at this time, but if you could provide that for us.
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    Mr. STEINHARDT. I would be happy to do that, Mr. Scott.

    [The information referred to follows:]

65302c.eps

65302d.eps

65302e.eps

65302f.eps

65302g.eps

65302h.eps

65302i.eps

65302j.eps

65302k.eps

65302l.eps

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65302m.eps

    Mr. CHABOT. Okay. The ranking member has asked for that information, and without objection, that will become part of the official report of this committee.

    We appreciate all the witnesses' testimony here this afternoon. It was very well done. Again, we apologize for keeping you here as long as we did today because of the interruptions on the floor of the House of Representatives.

    Thank you very much for coming. At this time, the committee is adjourned.

    [Whereupon, at 6:15 p.m., the subcommittee was adjourned.]

A P P E N D I X

Material Submitted for the Hearing Record

PREPARED STATEMENT OF HON. BILL MCCOLLUM, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF FLORIDA, AND CHAIRMAN, SUBCOMMITTEE ON CRIME

    Today the Subcommittee on Crime will consider three bills that address a growing problem in an important area—the increasing backlog of DNA samples sitting in state laboratories waiting to be analyzed. I am sure that everyone here today appreciates the importance that DNA analysis plays in solving crimes. As we all know, DNA is often used to prove the guilt or innocence of a suspect. And DNA is being used more frequently to prove the innocence of persons wrongly imprisoned prior to the development of this technology. More recently, DNA is being used to link together crimes that, up to that point, did not appear to be connected, and to also link known offenders to crimes for which there had been no suspects.
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    All 50 states now require some or all of their convicted offenders to provide DNA samples to the state. In 1994 Congress enacted legislation that gave the FBI the authority to create a national database of these DNA samples. The Combined DNA Index System—or CODIS, as it is known—has grown dramatically, to the point that today there are almost 400,000 samples on file of known state offenders. But there are also over 350,000 more samples that have been collected but have yet to be entered into this system by the states. And, because of a shortcoming in the 1994 Federal law, this system does not include samples from persons who have been convicted of Federal crimes, crimes in the District of Columbia, or crimes while serving in the military. This hole in the law must be filled.

    Just as importantly, while there are over 30,000 samples taken from crime scene and victims currently in CODIS, there are over 15,000 samples that have yet to be included in the system. And this number does not reflect the even larger backlog in the states of unanalyzed crime scene evidence in cases where there are known suspects. While this evidence may never need to be loaded into CODIS, it is nevertheless important that it be analyzed promptly so that the guilt or innocence of the accused in those cases can be quickly determined.

    And so one reason for today's hearing is to better understand why so many of these samples remain sitting on the shelves, and what role the Federal government can do to help states fix this problem. During our hearing will consider three bills aimed at addressing this problem—H.R. 2810, the ''Violent Offender DNA Identification Act of 1999'' introduced by Rep. Patrick Kennedy; H.R. 3087, the ''DNA Backlog Elimination Act'' introduced by Rep. Anthony Weiner, a member of the full Judiciary Committee; and H.R. 3375, the ''Convicted Offender DNA Index System Support Act'' introduced by Rep. Ben Gilman.
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    I am pleased that each of the sponsors of these bills has agreed to be with us today to explain their bill, and I welcome each of them. I also welcome the other witnesses who will testify here today. We are fortunate to be hearing from representatives of the Federal and state governments concerning this problem and how it can be fixed. And we will also hear from groups who advocate on behalf of the privacy rights of citizens and for the greater use of DNA evidence to prove the innocence of convicted persons. I welcome all of the witnesses here today.

     


Boston Police Department,
Boston, MA.
Hon. BILL MCCOLLUM, Chairman,
Subcommittee on Crime,
Committee on the Judiciary,
House of Representatives, Washington, DC.

    DEAR CHAIRMAN MCCOLLUM: I am writing to express my regrets at being unable to attend the meeting of your committee on May 18, 2000. An unexpected commitment has arisen that has prevented my attendance. The following comments refer to Congressman Pete Sessions' bill to temporarily eliminate the requirement that fingerprints be supplied for background checks on volunteers, and for other purposes. As First Vice-Chair, I am speaking on behalf of the Criminal Justice Information Services Division Advisory Policy Board (CJIS APB). The APB is comprised of thirty-two representatives from criminal justice agencies across the country. We represent state and local law enforcement agencies, corrections agencies, prosecutors, and the courts. The FBI established the APB and its supporting working groups and subcommittees to allow the users to share management of the country's major law enforcement information systems. As you are aware, these systems include the National Crime Information Center, the Interstate Identification Index, the Uniform Crime Reporting Program, the National Instant Criminal Background Check System, and others.
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    The non-criminal justice use of the FBI's criminal history files has long been a major concern for us as a group. Because we have a strong law enforcement representation among our members, we are keenly attuned to importance of positive identification in the use of the records. While we know that in police investigative and emergency use a name search has some value because it will be followed up with other validating activities, we firmly believe that the approval of a license or the granting of unsupervised access to a child must be sanctioned only under the assurance of positive identification (i.e. fingerprint submission). We believe unequivocally that the only means of protecting vulnerable populations is through the submission of fingerprints for background clearances. This belief is supported by tile report to the Attorney General prepared by SEARCH (the National Consortium for Criminal Justice Information and Statistics), the Bureau of Justice Statistics, the state of Florida, and the Advisory Policy Board, entitled Interstate Identification Index Name Check Efficacy: Report of the National Task Force to the U.S. Attorney General.

    Because of that conviction, we applaud the Bill's intent to ultimately move to fingerprint submissions for volunteer background searches; however, we disagree that an interim name search strategy is in the public interest. In this regard, we are very supportive of the testimony of David Loesch, Assistant Director, FBI CJIS Division. In addition, we place special emphasis on the following points:

1. We do not believe the ''designation'' describ6d in the bill will ever be accomplished in most states. The fingerprint searches will not ever be ''universally'' available, and there is no realistic expectation that the cost of the fingerprint searches will spontaneously decrease. Accordingly, we believe that this bill is essentially a permanent approval of name searches for volunteer background searches.
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2. We believe that placing the FBI ''seal of approval'' on name searches, even on an interim basis, will provide the uninformed with a false sense of security, and remove the imperative to require fingerprints submissions in the future. We believe that the use of name searches in the interim will, in fact, slow down the move to fingerprint searches.

3. We believe that allowing the name searches in the interim will undermine the credibility of the national background process as a whole. By allowing the false negatives that will occur under name searches, we would be sanctioning the placement of dangerous persons in the presence of children, the elderly and the disabled. The damage that will most certainly occur will be unrecoverable, even after having moved the national screening process back to a fingerprint requirement. Forever, the national screening process would bear the burden of all the harmful placements that would have taken place under an approved interim name search strategy.

4. We have a great concern that this bill would contradict the previous will of Congress regarding fingerprint submissions for non-criminal justice purposes. As you are aware, the National Crime Prevention and Privacy Compact Act of 1998, passed as a part of National Criminal History Access and Child Protection Act requires fingerprint submission on all non-criminal justice background searches. The approval of the Interstate Compact by the Congress and the subsequent ratification by several states have been milestones in the national strategy for managing criminal history records, and in managing their use. Fingerprint submission is an integral requirement of that strategy. In addition, while the present bill might remove the national requirement for fingerprints, it appears to us that the states who have already signed the Compact would remain bound to the requirement of fingerprints, in that they have entered into that agreement through the signing of the Compact. We express to the committee our gravest concerns that this bill would undo in a few lines the significant benefits of the National Crime Prevention and Privacy Compact. We would also point the committee to the many other bills introduced in Congress which require fingerprints for non-criminal justice background searches.
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5. Finally, we believe that the best interim strategy is to encourage the FBI and the states to aggressively pursue the improvement of the non-criminal justice background check process. First, an emphasis must be put on the deployment of ''livescan'' (electronic) fingerprint devices throughout the country to gather the volunteer and applicant fingerprints. At the same time, the FBI and the states must pursue new technologies and new processes to make the gathering and submission of the applicant prints more efficient and cost effective.

     Even absent electronic fingerprint submissions, however, the response times for applicant fingerprint checks has been greatly reduced by the implementation of the FBI's Integrated Automated Fingerprint Identification System (IAFIS) and less dramatic improvements in state AFIS systems. The old arguments of not being able to wait weeks for a background check to clear are no longer valid.

     Again, we believe firmly that rather than sanctioning a process that is known to be inferior and dangerous, we must place emphasis on these constructive activities as the most effective interim strategy for reaching widespread fingerprint search capability. We recognize that in the present moment there is a large need for volunteer background searches. We believe, however, that the greatest public protection will be accomplished by pushing hard on the above-mentioned activities, rather than by allowing the name searches.

    We have struggled with this issue for quite some time within the APB, and we have come to these conclusions after much debate among the persons who best know the data and the systems, and who use the data the most often. We are keenly aware of the difficulty of the issue, and we offer this guidance based solely upon our belief that this course is in the greatest public interest. Please do not hesitate to contact me or any member of the Advisory Policy Board to further discuss this matter.
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Sincerely,

William Casey, Deputy Superintendent.

cc:

Glenn Schmitt
Dave Loesch
Bill Good