BILL ANALYSIS SENATE COMMITTEE ON PUBLIC SAFETY Senator Mark Leno, Chair A 2009-2010 Regular Session B 5 5 8 AB 558 (Portantino) As Amended April 5, 2010 Hearing date: June 15, 2010 Penal Code AA:mc SEXUAL ASSAULT: RAPE KIT EVIDENCE HISTORY Source: Author Prior Legislation: AB 1017 (Portantino) - 2009, vetoed Support: Crime Victims Action Alliance; City of West Hollywood Opposition:California State Sheriffs' Association; California Law Enforcement Association of Records Supervisors Assembly Floor Vote: Ayes 72 - Noes 0 KEY ISSUE SHOULD LAW ENFORCEMENT AGENCIES THAT TAKE OR PROCESS RAPE KIT EVIDENCE BE REQUIRED TO REPORT CERTAIN INFORMATION CONCERNING THE TESTING AND DESTRUCTION OF RAPE KITS TO THE DEPARTMENT OF JUSTICE, AS SPECIFIED? (More) AB 558 (Portantino) PageB PURPOSE The purpose of this bill is to require law enforcement agencies that take or process rape kit evidence to report specified information concerning the testing and destruction of that evidence to the Department of Justice. Current law sets forth the "Sexual Assault Victims' DNA Bill of Rights," which enumerates in statute certain provisions pertaining to victim notification of certain information relating to their case, as specified. (Penal Code 680.) Current law provides that notwithstanding any other limitation of time, a criminal complaint may be filed within one year of the date on which the identity of the suspect is conclusively established by DNA testing if both of the following conditions are met: The crime is one that is described in the sex offense registration statute; and, The offense was committed prior to January 1, 2001, and biological evidence collected in connection with the offense is analyzed for DNA type no later than January 1, 2004; or the offense was committed on or after January 1, 2001, and biological evidence collected in connection with the offense is analyzed for DNA type no later than two years from the date of the offense. (Penal Code 803(g)(1)(A)(B).) Current law provides that a criminal complaint may be filed within one year after a report to a law enforcement agency that a person was the victim of a sexual offense while under the age of 18 years. To file such a complaint, the applicable limitation period must have expired and the alleged crime must have involved substantial sexual conduct corroborated by evidence, as specified. (Penal Code 803 (g)(1) and (h)(1).) This bill would require each local law enforcement agency responsible for taking or processing rape kit evidence to collect the following information for rape kits collected on or (More) AB 558 (Portantino) PageC after January 1, 2011: (1) The total number of rape kits received during the preceding calendar year and, of that total, the number of rape kits for which the identity of the assailant is unknown and the number of rape kits for which the identity of the assailant is contested. (2) The total number of rape kits tested during the preceding calendar year and, of that total, the number of rape kits for which the identity of the assailant is unknown and the number of rape kits for which the identity of the assailant is contested. (3) The total number of rape kits that law enforcement has requested be tested and, of that total, the number of rape kits for which the identity of the assailant is unknown and the number of rape kits for which the identity of the assailant is contested. (4) The number of rape kits that law enforcement has requested be tested that remain untested and, of that number, the number of rape kits for which the identity of the assailant is unknown and the number of rape kits for which the identity of the assailant is contested. (5) The total number of untested rape kits in its possession as of January 1 of the reporting year. (6) The total number of rape kits destroyed during the preceding calendar year. This bill would require each local law enforcement agency responsible for taking or processing rape kit evidence to report, by July 1 of each year, the information collected (More) AB 558 (Portantino) PageD pursuant to this section during the preceding year to the Department of Justice (DOJ). The initial report to the department pursuant to this subdivision would be required to be made by July 1, 2012. This bill would provide that the reports received by DOJ would be subject to inspection under the California Public Records Act. The provisions of this bill would be operative until July 1, 2016, and sunset on January 1, 2017. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS The severe prison overcrowding problem California has experienced for the last several years has not been solved. In December of 2006 plaintiffs in two federal lawsuits against the Department of Corrections and Rehabilitation sought a court-ordered limit on the prison population pursuant to the federal Prison Litigation Reform Act. On January 12, 2010, a federal three-judge panel issued an order requiring the state to reduce its inmate population to 137.5 percent of design capacity -- a reduction of roughly 40,000 inmates -- within two years. In a prior, related 184-page Opinion and Order dated August 4, 2009, that court stated in part: "California's correctional system is in a tailspin," the state's independent oversight agency has reported. . . . (Jan. 2007 Little Hoover Commission Report, "Solving California's Corrections Crisis: Time Is Running Out"). Tough-on-crime politics have increased the population of California's prisons dramatically while making necessary reforms impossible. . . . As a result, the state's prisons have become places "of extreme peril to the safety of persons" they house, . (More) AB 558 (Portantino) PageE . . (Governor Schwarzenegger's Oct. 4, 2006 Prison Overcrowding State of Emergency Declaration), while contributing little to the safety of California's residents, . . . . California "spends more on corrections than most countries in the world," but the state "reaps fewer public safety benefits." . . . . Although California's existing prison system serves neither the public nor the inmates well, the state has for years been unable or unwilling to implement the reforms necessary to reverse its continuing deterioration. (Some citations omitted.) . . . The massive 750% increase in the California prison population since the mid-1970s is the result of political decisions made over three decades, including the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws, as well as the state's counterproductive parole system. Unfortunately, as California's prison population has grown, California's political decision-makers have failed to provide the resources and facilities required to meet the additional need for space and for other necessities of prison existence. Likewise, although state-appointed experts have repeatedly provided numerous methods by which the state could safely reduce its prison population, their recommendations have been ignored, underfunded, or postponed indefinitely. The convergence of tough-on-crime policies and an unwillingness to expend the necessary funds to support the population growth has brought California's prisons to the breaking point. The state of emergency declared by Governor Schwarzenegger almost three years ago continues to this day, California's prisons remain severely overcrowded, and inmates in the California prison system continue to languish without constitutionally (More) AB 558 (Portantino) PageF adequate medical and mental health care.<1> The court stayed implementation of its January 12, 2010, ruling pending the state's appeal of the decision to the U.S. Supreme Court. That appeal, and the final outcome of this litigation, is not anticipated until later this year or 2011. This bill does not aggravate the prison overcrowding crisis described above. COMMENTS 1. Stated Need for This Bill The author states: In 2008, it was discovered that the City and County of Los Angeles had over 10,000 unopened rape kits in their evidence lockers. Of these, the City of Los Angeles alone had 403 unopened rape kits that were the result of stranger rapes. It is na?ve to believe that the Los Angeles area is the only community in the state that is not testing its rape kits. AB 558 will restore accountability in the processing of rape kit evidence. AB 558 will require all law enforcement agencies to report to the DOJ their statistics on the numbers of rape kits that they collect and test and the numbers of these tests that are stranger rapes or where the identity of the assailant is contested. This bill will require that only those kits that are collected --------------------- <1> Three Judge Court Opinion and Order, Coleman v. Schwarzenegger, Plata v. Schwarzenegger, in the United States District Courts for the Eastern District of California and the Northern District of California United States District Court composed of three judges pursuant to Section 2284, Title 28 United States Code (August 4, 2009). (More) AB 558 (Portantino) PageG after the effective date of the measure are to be categorized and reported. Most local governments currently use the Department of Justice criminal lab to test their rape kits. Although not ultimately adopted, last year the LAO and several of the 2009 budget bills proposed requiring the DOJ crime lab to start billing local government for services such as testing rape kits. Such a practice would create a tremendous financial disincentive to test rape kits. While not all rape kits need to be tested, passage of AB 558 will provide accountability for those kits that do need to be tested. This will allow California to track the testing of rape kits by our local law enforcement agencies and ensure justice for the victims of a horrible crime. Rape kits are evidence of crime. In order to remain admissible in a criminal trial, such evidence must be logged as it comes in and tracked and maintained so that the law enforcement "chain of custody" is established. To fail to do so, will cause the evidence to be inadmissible in a court of law. There is no "backlog" reporting in AB 558 in that law enforcement will only categorize and report on kits that come in after the effective date of the bill. The costs of AB 558 will be minor because local law enforcement has to log and track evidence anyway. They can collect the information when the kits are logged in as evidence and report on the totals when required to the DOJ. This measure is the same bill as AB 1017 of last year which was supported by the California Coalition against Sexual Assault, Crime Victims United and numerous other organizations. It received bi-partisan support and there were no, "NO" votes. 2. What This Bill Would Do; Previous Legislation Vetoed (More) AB 558 (Portantino) PageH This bill would require local law enforcement agencies responsible for rape kit evidence to collect specified aggregate information about rape kits, detailed above, and to report that information to the Department of Justice, as specified. As noted by the author, this bill is very similar to his AB 1017, passed by this Committee unanimously and the Legislature last year but vetoed by Governor Schwarzenegger. The veto message stated in part: I strongly support efforts to ensure that rape kits are analyzed and processed in a timely manner in order to identify and prosecute sex offenders. However, requiring law enforcement agencies to provide backlog statistics to the DOJ would place significant cost burdens on these agencies and would divert scarce resources away from processing these kits. In addition, this measure does not require the DOJ to do anything with the reports received. Assuming that the DOJ would have to administer, collect, and manage these records, this could impose additional cost pressures on the DOJ. Since this measure would create additional state costs that cannot be accommodated in a time of fiscal crisis, I am returning this bill without my signature. (More) 3. Background: Processing of Rape Kits In the fall of 2008, then-Los Angeles City Controller Laura Chick issued a report citing a significant backlog of rape kits that had not been DNA tested. As explained in an October 21, 2008, article in the Los Angeles Times: Los Angeles police officials have allowed the deadline for prosecuting as many as 200 potential sexual assault cases to pass without testing DNA evidence that might have resulted in a suspect's identification, according to a city audit released today. The 200 cases were part of an overall backlog of 7,000 sexual assault test kits that have not been examined by the LAPD. Each kit contains a potential genetic road map to the perpetrator of a crime. . . . According to the city audit, there are 217 rape kits that have sat on the shelves in LAPD property rooms that are beyond the 10-year statute in which to prosecute the crimes. . . . Auditors also found that the LAPD was failing to (More) AB 558 (Portantino) PageJ comply with a state law that requires sexual assault victims to be notified by the police if their rape kits are not tested within a two-year period. If authorities had made those notifications, the statute of limitations would have been extended.<2> A news article from March of 2009 further described the situation in Los Angeles: Since the controversy erupted, LAPD detectives have counted a total of 9,911 sexual-assault cases in the freezers. Of those, 4,718 were previously tested and 5,193 were not tested. Of the untested cases, 403 were "stranger rapes," in which DNA testing could have netted a solid suspect by now; 1,184 were "cleared by arrest," making DNA tests unnecessary; and 1,796 were rejected by D.A. Cooley, usually because of a hard-to-prosecute "he said, she said" situation or because the victim refused to cooperate. Now, with 200 rape cases left for so long that they are too old to prosecute, and an unknown number of crimes lurking in the other long-frozen rape kits, it seems doubtful L.A. will ever match the science-based crime-fighting of New ---------------------- <2> 200 sex assault cases pass prosecution deadline before LAPD tested DNA kits (Los Angeles Times, Oct. 21, 2008). AB 558 (Portantino) PageK York City.<3> 4. Opposition The California State Sheriffs' Association and the California Law Enforcement Association of Records Supervisors oppose this bill, submitting it "will have significant fiscal impacts on local law enforcement agencies. . . . We recognize and share (the author's) intent to ensure that rape kits are analyzed and processed in a timely manner in order to identify and convict offenders of these heinous crimes. However, doing so by requiring law enforcement agencies to provide backlog statistics to DOJ would place significant cost burdens on these agencies in terms of resources and personnel and consequently, would inadvertently hamper our ability to process these kits. . . . . . . Due to the fiscal and workload implications of this bill, we must respectfully oppose AB 558. DO THE WORKLOAD AND FISCAL IMPACTS OF THIS BILL OUTWEIGH ITS INTENDED GOALS OF THIS BILL? *************** --------------------------- <3> DNA Deep Freeze (LA Weekly, March 18, 2009). ("New York stood out as a big metropolitan area that's doing it right. The Los Angeles Police Department stood out too - as what critics see as a DNA disaster zone. L.A. is so many years behind New York's Office of the Medical Examiner in testing long-stored DNA from sexual-assault cases that the LAPD would need millions of dollars - and a top-level initiative from Chief William Bratton - to ever hope to catch up. . . . In stark contrast to L.A., New York tests all its DNA evidence, including that recovered from burglary scenes, and performs "touch DNA" tests - analyzing such minuscule traces that they can match the sweat left in fingerprints.")