Transcripts of the Attorney General's Initiative on DNA Laboratory Backlogs (AGID-LAB) Working Group
Tuesday, October 22, 2002
LEGISLATIVE AND POLICY ISSUES
MR. SCHMITT: The next item on the discussion agenda is legislative and policy matters. I realize that in any discussion these issues, there are political overtones, and so we want people to only speak to the extent that they're comfortable, but we really would like to try to get a consensus on what you all would like to see us encourage on the federal level, whether that is encouraging states to go to all felons legislation, perhaps to go to arrestees legislation. Should we recommend that the Department encourage or support changes to the statutes so that all lawfully collected samples can be uploaded?
Sarah mentioned that the Department is on record as supporting that. How far should that go? Should that just be with respect to arrestees; i.e., adults or should it also include juveniles who are adjudicated delinquent for an act that requires them to give a sample?. So let's open it up, and we'll see how the debate progresses on that issue.
MR. COFFMAN: I think all felons is a good first stepping stone that could be encouraged. I think before you necessarily just jump on the bandwagon and say let's encourage all arrestees there is a huge infrastructure component that cannot be ignored, and what is going to happen is you're just going to create a backlog all over again and have people prioritizing and struggling with that. So I really think that the arrestees should come after you give every state a million and a half dollars to set up a South African automation system because they can handle it then and/or any kind of automation system and also even more money to help integrate criminal justice, the courts, the prisons, get everybody on sort of the same page within the state. I mean that's the key because most places are not going to be able to say - in my opinion if we went to all arrestees, I think we should be able to keep the sample even if they're found innocent because we keep fingerprints.
The thing is it's causing a huge burden on the criminal justice system that these people - I mean we did a study in Florida, and we have 20,000 to 25,000 people arrested each year that have 26 or more arrests in their criminal history. I've got some great numbers for you if you would like to see it. I really think that we should be allowed to keep it, but it's unrealistic to think that's going to happen because the people who are concerned with privacy issues are going to say he wasn't convicted; you shouldn't keep it.
So I don't know if I would jump right to arrestees. There is a lot of infrastructure building. I would also include in that all felons juveniles. We have about 14,000 juveniles that we've collected in Florida over the years. Just recently the collection has improved since we went to oral swabs because no one wants to take a blood sample from the darlings, but they don't mind swabbing their cheek.
But I will tell you just a good number in Florida as far the AFIS system is I would say 11% of our AFIS system, automated fingerprint system, is made up of fingerprints from juveniles. 46% of the hits to our AFIS system come from that 11%. So that is a valuable number to warrant the collection of juveniles, and we have made a lot of hits to juveniles within the state.
MR. SCHMITT: Is the fingerprint collection all juveniles?
MR. COFFMAN: It's, yes, juvenile offenders.
MR. SCHMITT: So your recommendation would be that the DNA collection be all juveniles as well, not just juveniles for certainly really bad acts.
MR. COFFMAN: No. I would say we're seeing the same trend as we saw with adults, that juvenile burglary offenders are committing - the problem is if you have a juvenile that's convicted of a rape, he's going to be incarcerated or in some sort of control until he's an adult so he can't commit the rape again, but if he's collected for burglary, he's not under control as much, so there is more opportunity for people with lesser crimes for these people to commit the crimes again. So I think whatever you say for adults should carry on down to juveniles as far as the felony convictions.
MR. SCHMITT: You all have to have lots of opinions on this topic. You're just reticent to share them.
MR. FERRARA: Well, if we simply said to include all lawfully collected samples in the database, then that would take into account if the state says we only want to take them from sex offenders on conviction, that's fine. If the state wants to take them on arrest for all felonies and burglaries, that's fine, too, and that leaves each state as it is now to make its own decisions and recommendations.
We studied the arrestee issue taking samples on arrest obviously at great length and with great thought, and there are a lot of logistical issues associated with it, but we determined that the benefits are going to far outweigh the costs and when done right, theoretically all you have to have is one sample from one individual, and if you can control that, then it keeps down the costs, the additional costs of it.
Most of our work is going to be in terms of, as I mentioned yesterday, the need for the integration of the information systems to allow us - I'm like Dave. I think it's a lot of cost and effort to expunge and re-add samples. I mean no sooner are we going to expunge somebody, they're going to be popped again and they're going to be resampled, and we're going to return.
We don't do that with fingerprints; however, the realities are that we weren't going to get that legislation passed in Virginia without that provision, and I suspect sadly the same will be true because people don't understand that our DNA profile is a biometric fingerprint and treated the same way as we do fingerprints.
MR. CLARKE: I think again back to that analysis that we were performing a few years ago, I think the number we worked with, just to put it in a little bit of perspective - and I can't remember what year it was from, but it's probably at least four to five years old - there are approximately 18 million felony arrests in the United States in a given year. Obviously that's a very large number, and no matter if states enacted an all felon arrestee database, that's not going to be presumably a reality for some time anyway.
So it helps demonstrate the scale we're talking about. I don't know what the numbers are to include misdemeanor arrestees or any fingerprintable type crime. Obviously it would be enormous. So there is a lot of practical import to what Dave has provided and Paul about the realities of what could happen if every legislature decided tomorrow they want to do this. It's going to take obviously significant funding resources, automation, and so on, but technologically we know that's possible.
MS. HART: One of the things at this point because I have to do recommendations, the Department is actually on the record in part because of all the discussions that we have already had of taking the view that we should at least encourage states to move to an all felons, at an absolute minimum they should be looking at all felons, but ultimately in terms of what should go into the database, the state should be the ones who are the ultimate arbiters of what should be lawfully collected in their states, and they can make those difficult choices about should it be juveniles, should it be arrestees, or whatever, and that's kind of different from the funding question.
I get from the sense of the discussion that that is pretty much a consensus view here, I think, or is it not? Is there something else that you recommend that I should be recommending or adding to this as we go forward?
MR. SELAVKA: It seems coming in Massachusetts was 48th to join the DNA databank party, and there will be states ahead of the curve on all felony collections and those that are far behind, and ultimately the leverage and the motivation came from the funding connection. Massachusetts joined the fray just in time to get their CODIS grant. So the legislators needed the impetus. So it may be another one of those situations the recommendation to go to all felons for collection may need to have this intact.
MS. HART: It's interesting. There are states who have passed legislation where they've expanded their collections, but it has been contingent upon federal funding being available, and that's what kicks it off. Different states are having different approaches.
MR. KRESBACH: I would think if you're able in your presentation or final report to the Attorney General, which I presume would eventually go to selected Congress persons to draft legislation and such, that one of the items that's listed is amending existing statutes of limitations. It's kind of like what Carl was leading to is to try to impress upon states the benefit of doing such things.
I know Congress in certain pieces of legislation impresses upon the readers of that legislation that their sense, intent, or desire is that states move in certain directions, not necessarily having any negative effect if they don't comply with that sense, but it certainly gives states and legislators a direction as to what is in the wind, if you will.
Something to that effect could greatly benefit me because we have struggled with trying to pursue a reduction or an amendment of some sort to our statute of limitations. They're somewhat resistant to doing that because it opens a big can of worms, if you will, but if there was something of a nonbinding nature or even a binding nature to some of the grants or the sense of Congress, if you will, it might be of benefit to a number of different states to try to pursue that amendment of statutes of limitations.
MS. HART: Just one other thing. You mentioned about the report, ultimately what will happen with the recommendations. Keep in mind - I presume everybody understands this - we do have a court reporter here and these transcripts are publicly available. I don't want to inhibit any discussion here, but also the recommendations will be publicly available. So you should feel free to disseminate them and use them any way you want, and I'm certain that they will be forwarded over to Congress, the recommendations, not the transcripts. They can have the transcript if they want. I think they get enough paper from NIJ that they don't want these phone book transcripts.
MR. DIZINNO: I don't know if it would be possible, but it might be might be prudent to include in that recommendation if the recommendation is all felons, which seems to be the consensus here, but to include a possible price tag that goes along with that so we're not recommending creation of another yet unfunded mandate to create the infrastructure necessary so that the states can address that all felons whether it be personnel, equipment, or it also would apply to CODIS, and there is all sorts of infrastructure needs there, and a price tag I think would be an appropriate thing to associate with that recommendation.
MS. HART: It's clear given everything that we're talking about here that we're talking about comprehensive recommendations.
MR. SCHMITT: What I would like to do at this time is take a 15-minute break, let us look at our notes, see what else there is to discuss, open it for some additional discussion from you after you have a chance to look at the agenda and see what we might have missed, talk about what next steps there might be for this group, and then we are required by statute to open this for public comment, and I want to honor that requirement in a meaningful way. We'll still promise to have you out of here way before the scheduled adjourn time. So if you will come back at five minutes after 2:00, we'll continue on and wrap up.
