BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair A 2013-2014 Regular Session B 1 6 9 AB 1697 (Donnelly) 7 As Amended April 10, 2014 Hearing date: June 17, 2014 Penal Code MK:mc DNA AND FORENSIC IDENTIFICATION DATABASE AND DATA BANK HISTORY Source: Author Prior Legislation: None Support: Taxpayers for Improving Public Safety Opposition:None known Assembly Floor Vote: Ayes 78 - Noes 0 KEY ISSUE SHOULD THE DNA AND FORENSIC DATABASE AND DATA BANK AND THE DEPARTMENT OF JUSTICE DNA LABORATORY BE PROHIBITED FROM BEING USED AS A SOURCE OF GENETIC MATERIAL FOR TESTING, RESEARCH EXPERIMENTS OR BY ANY PERSON, AGENCY OR ENTITY SEEKING TO FIND A CAUSAL LINK BETWEEN GENETICS AND BEHAVIOR OR HEALTH? PURPOSE (More) AB 1697 (Donnelly) Page 2 The purpose of this bill is to prohibit the DNA and forensic database and data bank and the Department of Justice (DOJ) DNA Laboratory from being used as a source of genetic material for testing, research or experiments by any person, agency or entity seeking to find a causal link between genetics and behavior or health. Existing law provides that DOJ, through its DNA Laboratory, is responsible for the management and administration of the state's DNA and Forensic Identification Database and Data Bank Program and for liaising with the Federal Bureau of Investigation (FBI) regarding the state's participation in a national or international DNA database and data bank program such as the Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide. (Penal Code, § 295 (g).) Existing law provides that DOJ can perform DNA analysis, other forensic identification analysis, and examination of palm prints pursuant to the Act only for identification purposes. (Penal Code, § 295.1 (a) & (b).) Existing law provides that the DOJ DNA Laboratory is to serve as a repository for blood specimens, buccal swab, and other biological samples collected and is required to analyze specimens and samples and store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records related to the following: a) Forensic casework and forensic unknowns; b) Known and evidentiary specimens and samples from crime scenes or criminal investigations; c) Missing or unidentified persons; d) Persons required to provide specimens, samples, and print impressions; e) Legally obtained samples; and, f) Anonymous DNA records used for training, research, statistical analysis of populations, quality assurance, or quality control. (More) AB 1697 (Donnelly) Page 3 Existing law requires the following persons to provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required for law enforcement identification analysis: a) Any person, including any juvenile, who is convicted of or pleads guilty or no contest to any felony offense (or attempt thereof), or is found not guilty by reason of insanity of any felony offense (or attempt thereof), or any juvenile who is adjudicated a ward of the juvenile court, as specified, for committing any felony offense (or attempt thereof). b) Any adult person who is arrested for or charged with any felony offense (or attempt thereof). c) Any person, including any juvenile, who is required to register under the sex offender or arson registries because of the commission of, or the attempt to commit, a felony or misdemeanor offense, or any person, including any juvenile, who is housed in a mental health facility or sex offender treatment program after referral to such facility or program by a court after being charged with any felony offense (or attempt thereof). (Penal Code, § 296.) Existing law states that all DNA and forensic identification profiles and other identification information retained by DOJ pursuant to the Act are exempt from any law requiring disclosure of information to the public and are confidential except as otherwise provided in the Act. Existing law provides that, except to the defense counsel, upon court order, of a defendant whose DNA and other forensic identification information were developed pursuant to the Act, DOJ and local public DNA laboratories shall not otherwise be compelled in a criminal or civil proceeding to provide any DNA profile or forensic identification database or data bank information or its computer database program software or structures to any person or party seeking such records or (More) AB 1697 (Donnelly) Page 4 information whether by subpoena, discovery, or other procedural device or inquiry. (Penal Code, § 299.5 (h).) Existing law punishes as an alternate misdemeanor/felony any person who knowingly uses an offender specimen, sample, or DNA profile collected pursuant to the Act for other than criminal identification or exclusion purposes, or for other than the identification of missing persons, or who knowingly discloses DNA or other forensic identification information developed as specified to an unauthorized individual or agency, for other than criminal identification or exclusion purposes, or for the identification of missing persons, by imprisonment in a county jail not exceeding one year or by imprisonment in the state prison for 16 months, or two or three years. (Penal Code, § 299.5(i)(1)(A).) Existing law specifies that it is not a violation of the above provision for the DOJ DNA Laboratory, or an organization retained as a DOJ agent, or a local public laboratory to use anonymous records or criminal history information obtained pursuant to the Act for training, research, statistical analysis of populations, quality assurance, or quality control. (Pen. Code, § 299.5, subd. (m).) Existing law provides that the Act does not prohibit DOJ, in its sole discretion, from the sharing or disseminating of population database or data bank information, DNA profile or forensic identification database or data bank information, analytical data and results generated for forensic identification database and data bank purposes, or protocol and forensic DNA analysis methods and quality assurance or quality control procedures with any third party that DOJ deems necessary to assist the department's crime laboratory with statistical analyses of population databases, or the analyses of forensic protocol, research methods, or quality control procedures, or to assist in the recovery or identification of human remains for humanitarian purposes, including identification of missing persons. (Penal Code, § 299.6 (a)(5).) (More) AB 1697 (Donnelly) Page 5 This bill provides that the DNA and forensic identification database and data bank and the DOJ DNA Laboratory shall not be used as a source of genetic material for testing, research, or experiments, by any person, agency or entity seeking to find a causal link between genetics and behavior or health. RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION For the last several years, severe overcrowding in California's prisons has been the focus of evolving and expensive litigation relating to conditions of confinement. On May 23, 2011, the United States Supreme Court ordered California to reduce its prison population to 137.5 percent of design capacity within two years from the date of its ruling, subject to the right of the state to seek modifications in appropriate circumstances. Beginning in early 2007, Senate leadership initiated a policy to hold legislative proposals which could further aggravate the prison overcrowding crisis through new or expanded felony prosecutions. Under the resulting policy, known as "ROCA" (which stands for "Receivership/ Overcrowding Crisis Aggravation"), the Committee held measures that created a new felony, expanded the scope or penalty of an existing felony, or otherwise increased the application of a felony in a manner which could exacerbate the prison overcrowding crisis. Under these principles, ROCA was applied as a content-neutral, provisional measure necessary to ensure that the Legislature did not erode progress towards reducing prison overcrowding by passing legislation, which would increase the prison population. In January of 2013, just over a year after the enactment of the historic Public Safety Realignment Act of 2011, the State of California filed court documents seeking to vacate or modify the (More) AB 1697 (Donnelly) Page 6 federal court order requiring the state to reduce its prison population to 137.5 percent of design capacity. The State submitted that the, ". . . population in the State's 33 prisons has been reduced by over 24,000 inmates since October 2011 when public safety realignment went into effect, by more than 36,000 inmates compared to the 2008 population . . . , and by nearly 42,000 inmates since 2006 . . . ." Plaintiffs opposed the state's motion, arguing that, "California prisons, which currently average 150% of capacity, and reach as high as 185% of capacity at one prison, continue to deliver health care that is constitutionally deficient." In an order dated January 29, 2013, the federal court granted the state a six-month extension to achieve the 137.5 % inmate population cap by December 31, 2013. The Three-Judge Court then ordered, on April 11, 2013, the state of California to "immediately take all steps necessary to comply with this Court's . . . Order . . . requiring defendants to reduce overall prison population to 137.5% design capacity by December 31, 2013." On September 16, 2013, the State asked the Court to extend that deadline to December 31, 2016. In response, the Court extended the deadline first to January 27, 2014 and then February 24, 2014, and ordered the parties to enter into a meet-and-confer process to "explore how defendants can comply with this Court's June 20, 2013 Order, including means and dates by which such compliance can be expedited or accomplished and how this Court can ensure a durable solution to the prison crowding problem." The parties were not able to reach an agreement during the meet-and-confer process. As a result, the Court ordered briefing on the State's requested extension and, on February 10, 2014, issued an order extending the deadline to reduce the in-state adult institution population to 137.5% design capacity to February 28, 2016. The order requires the state to meet the following interim and final population reduction benchmarks: 143% of design bed capacity by June 30, 2014; 141.5% of design bed capacity by February 28, 2015; and, 137.5% of design bed capacity by February 28, 2016. (More) AB 1697 (Donnelly) Page 7 If a benchmark is missed the Compliance Officer (a position created by the February 10, 2016 order) can order the release of inmates to bring the State into compliance with that benchmark. In a status report to the Court dated May 15, 2014, the state reported that as of May 14, 2014, 116,428 inmates were housed in the State's 34 adult institutions, which amounts to 140.8% of design bed capacity, and 8,650 inmates were housed in out-of-state facilities. The ongoing prison overcrowding litigation indicates that prison capacity and related issues concerning conditions of confinement remain unresolved. While real gains in reducing the prison population have been made, even greater reductions may be required to meet the orders of the federal court. Therefore, the Committee's consideration of ROCA bills -bills that may impact the prison population - will be informed by the following questions: Whether a measure erodes realignment and impacts the prison population; Whether a measure addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction; Whether a bill corrects a constitutional infirmity or legislative drafting error; Whether a measure proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy; and, Whether a bill addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy. COMMENTS 1. Need for This Bill According to the author: (More) AB 1697 (Donnelly) Page 8 The California Department of Justice (DOJ) maintains indefinite access to more than 1.8 million DNA samples and counting. Two recent court rulings have determined that it is constitutional for law enforcement to maintain DNA samples indefinitely, even if you were never convicted of a crime. (Maryland v. King (2013) 133 S.Ct. 1958, 1989 & U.S. v. Kriesel (9th Cir. 2013) 720 F.3d 1137, 1160.). These aforementioned samples contain an individual's entire genome, and could be tested to reveal traits related to ethnicity, health, and behavior. While the DOJ may only perform DNA analysis "for identification purposes," this term is not defined, and could include research into the link between genes and criminal behavior. Existing law authorizes the DOJ to use its samples for research purposes, and its vast collection of DNA samples provides the means to study how genetic profiles could help preemptively identify individuals predisposed to criminal behavior. This emerging field is known as "behavioral genomics." Recent research indicates that more than one-half of the variance in antisocial behavior can be attributed to genetic factors (C.J. Ferguson, Genetic Contributions to Antisocial Personality and Behavior: a Meta-analytic Review from an Evolutionary Prospective, Journal of Social Psychology (March-April 2010, Volume 150, Issue 2, pp. 160-180)). For example, researchers have demonstrated that individuals possessing one particular gene variant are statistically more likely to join a gang, and also more likely to use a weapon in a fight (Kevin M. Beaver, et al., Monoamine Oxidase A Genotype Is Associated with Gang Membership and Weapon Use, Comprehensive Psychiatry (March 2010, Volume 51, Issue 2, pp. 130-134)). The ability of this research to identify likely criminals and potential criminals will increase dramatically as researchers gain the means to track the interaction of thousands of gene variants across millions of samples, and correlate these results with known criminal behaviors. The (More) AB 1697 (Donnelly) Page 9 Department of Justice DNA repository offers that capability. The ability to perform this analysis is increasingly within reach. According to the National Human Genome Research Institute, the cost of whole-genome sequencing has decreased more than 9,000 fold over the past 10 years. 2. DNA Database In 1998, the Legislature enacted the DNA and Forensic Identification Database and Data Bank Act of 1998, which enhanced statewide biological identifying data collection by establishing a database within DOJ to house DNA and forensic identifying material to "assist federal, state, and local criminal justice and law enforcement agencies within and outside California in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children." (Pen. Code, § 295, subd. (c).) Among other things, the Act expanded the list of crimes, upon the conviction of which, required an individual to provide blood specimens and a saliva sample for DNA and genetic analysis. The samples, collected by the California Department of Corrections and Rehabilitation, the Department of Youth Authority, and local jails, were submitted to DOJ for analysis and storage in the statewide DNA data bank and compared to DNA evidence collected from crime scenes for possible matches. The DNA profiles also are submitted to the Combined DNA Index System (CODIS) maintained by the FBI. (Pen. Code, § 295, subd. (g).) CODIS connects DNA laboratories at the local, state, and national levels and standardizes the points of comparison used in DNA analysis. (Ibid.) (More) In 2004, voters amended the Act with the passage of Proposition 69, the "DNA Fingerprint, Unsolved Crime and Innocence Protection Act." Proposition 69, upon enactment of the measure, required that DNA collection be expanded to include adults and juveniles convicted of any felony offense; adults and juveniles convicted of any sex offense; adults arrested for or charged with felony sex offenses, murder, voluntary manslaughter, or the attempt of these crimes. (Pen. Code, § 296, subd. (a).) Starting in 2009, Proposition 69 required the DNA collection of all adults arrested for or charged with (as opposed to only those convicted of) any felony offense. (Ibid.) Moreover, in addition to the biological samples already required to be provided under then-existing law, Proposition 69 mandated that those individuals specified above also provide buccal swab samples, right thumbprints, and a full palm print impression of each hand. (Ibid.) 3. Prohibits Use as a Source of Genetic Material This bill prohibits the DNA and forensic identification database and data bank and the Department of Justice DNA Laboratory from being used as a source of genetic material for testing, research, or experiments, by any person, agency or entity seeking to find a causal link between genetics or health. *************** (More)