BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

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          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



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          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. 



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           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  



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          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).) 




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           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  



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          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. 




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          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:




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                  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  



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               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.) 








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          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.


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