BILL ANALYSIS Ó Senate Appropriations Committee Fiscal Summary Senator Kevin de León, Chair SB 980 (Lieu) - Prisoners: DNA testing. Amended: May 7, 2014 Policy Vote: Public Safety 5-2 Urgency: No Mandate: Yes Hearing Date: May 23, 2014 Consultant: Jolie Onodera SUSPENSE FILE. AS AMENDED. Bill Summary: SB 980 would make numerous changes to provisions of law pertaining to post-conviction DNA testing, including but not limited to, reducing the standard of review for granting a post-conviction motion for DNA testing, extending the retention period for biological evidence beyond the term of incarceration, and clarifying the role of a governmental agency to assist in the location of DNA evidence upon order of the court. Fiscal Impact (as approved on May 23, 2014): Unknown, potentially significant costs (General Fund) annually to the Department of Justice (DOJ) for increased storage costs due to the extended evidential retention period required under this measure. Unknown, ongoing potentially major state-reimbursable local costs (General Fund) for mandated activities including evidence storage to retain biological evidence for an extended period of time. Ongoing potentially major non-reimbursable local costs (Local) for assistance in locating biological evidence upon discretionary order of the court. Potentially significant future savings due to reduced state incarceration costs (General Fund) to the extent inmates are released from prison as a result of the additional DNA testing. The release of five inmates who would have otherwise served an additional 10 years in prison would result in cumulative savings of over $1.5 million. Savings would be offset in part by restitution paid by the state of $100 per day for wrongful incarceration. Any savings could potentially be offset or exceeded should the DNA testing result in the positive identification and conviction of another individual for the crime. *Trial Court Trust Fund SB 980 (Lieu) Page 1 Background: SB 1342 (Burton) Chapter 821/2000, established a defendant's right to post-conviction discovery and a procedure for authorizing courts to evaluate whether a defendant should be granted post-conviction testing of DNA. Pursuant to Penal Code § 1405, a person who was convicted of a felony and is currently serving a term of imprisonment may make a written motion before the trial court that entered the judgment of conviction in his or her case for performance of DNA testing under specified circumstances. This bill seeks to provide greater access to available evidence for defendants requesting DNA testing, and establish clear guidelines for law enforcement, prosecutors, and courts to follow when determining whether to grant such motions. Proposed Law: This bill would make the following revisions to provisions of law regarding post-conviction DNA testing: Revises the standard for granting a motion for DNA testing from the threshold that the testing would raise a reasonable probability that the convicted person's verdict or sentence would be more favorable if the results of the DNA testing had been available at the time of the conviction, to instead require the convicted person to explain, in light of all the evidence, how the requested DNA testing would be relevant to the issue of the identity of the perpetrator. Provides that before a grant of a motion for DNA testing, the defendant is not required to show that a favorable test would conclusively establish his or her innocence. Provides that upon appointment or retention of counsel to investigate and, if appropriate, to file a motion for DNA testing, a court may order the appropriate governmental agency to locate and provide counsel with any documents or reports relating to items of physical evidence collected in connection with the case or to otherwise assist the defendant in locating items of biological evidence that the entity contends have been lost or destroyed; take reasonable measures to locate biological evidence that may be in its custody; assist counsel in locating relevant evidence that may be in the custody of a public or private hospital, laboratory, or other facility. Revises the chain of custody standard to provide that evidence that has been in the custody of law enforcement, SB 980 (Lieu) Page 2 other governmental officials, or a public or private hospital shall be presumed to satisfy the chain of custody requirement, absent specific evidence of material tampering, replacement, or alteration. Provides that the court shall presume the requested DNA testing results will be exculpatory, which may be results that exclude the convicted person, or results that both exclude the convicted person and match another suspect or an offender in the Combined DNA Index System (CODIS), or match an unrelated crime or crimes in CODIS. Requires analysts, technicians, or other agents of the laboratory conducting the testing, including local or state governmental laboratories, to communicate directly with and provide documentation directly to both parties simultaneously, and shall not communicate with one party individually, unless the parties agree otherwise. Provides that if the court grants a motion for DNA testing, testing is performed, and a DNA profile is obtained of biological material that excludes the convicted person, the court or defendant may order a database search of CODIS to compare the profile obtained from testing to the CODIS databank. Requires governmental entities to retain biological material for an extended period of time past incarceration, to include while the person is on probation or parole. Provides that governmental agencies must wait one year, instead of 90 days, after sending notification of intention to dispose of biological material, to receive a response from the individual requesting the material not be destroyed or disposed of, or a motion for DNA testing is filed. Authorizes the court to consider appropriate remedies if the court finds that any biological evidence was destroyed in violation of these provisions of law. Prior Legislation: SB 1342 (Burton) Chapter 821/2000 requires the court to grant a motion for the performance of DNA testing under specified conditions for any person convicted of a felony currently serving a term of imprisonment, and requires the appropriate governmental entity to preserve any biological material secured in a criminal case, as specified. Staff Comments: By reducing the standard of review for post-conviction DNA testing and extending the mandated retention SB 980 (Lieu) Page 3 period for biological evidence, the provisions of this bill could result in very major costs to both state and local agencies. While the number of new claims for post-conviction DNA that will be brought forward due to the provisions of this bill cannot be known with certainty, and will be dependent on the actions of attorneys and defendants, and the subsequent decisions made by judges, it is estimated the potential increase in motions for testing could be substantial based on the significantly reduced standard of review that, "DNA testing would be relevant to the issue of the identity of the perpetrator." The DOJ has indicated very major costs based on an estimate of over 40,000 new claims for post-conviction DNA testing. While the number of new claims, as stated above, cannot be known with certainty, assuming even 10 percent of the projected estimate, or 4,000 new claims, would result in new costs of $200 million annually (General Fund) for attorney fees alone using the low range of attorney fees in these cases that range from $50,000 to $1 million per case. The DOJ has also indicated major costs for additional staffing, DNA testing, and potential IT enhancements. This bill specifies that upon a showing of good cause to believe that it is reasonably necessary to counsel's effort to investigate whether a motion for DNA testing is appropriate, the court may order agencies to locate and provide counsel with relevant information, assist the defendant in locating relevant evidence, as specified, and take reasonable measures to locate biological evidence that may be in its custody. Due to the projected increase in motions filed for DNA testing, the associated workload on governmental entities is also likewise projected to increase significantly. Ongoing costs to local law enforcement agencies, which could be substantial, are not estimated to require reimbursement as state-mandated activities, as assistance would be imposed only upon order of the court. This bill extends the mandated retention period for biological evidence beyond the period of a defendant's incarceration to include the period of probation or parole (generally, three years). Additionally, defendants would be provided with an additional nine months (from 90 days to one year) to respond to a notification of disposal of evidence, as well as six additional months (from 180 days to one year) within which to SB 980 (Lieu) Page 4 file a motion for DNA testing or make a declaration of innocence. In total, governmental agencies could be required to retain biological evidence for an additional 51 months under the provisions of this measure. Crime lab directors have indicated that while DNA storage for two to three years is not necessarily significant, to the extent the extended retention period results in a storage period that would exceed 10 years, costs could significantly increase. In addition, to the extent the extended period of retention necessitates additional storage area/space and equipment (i.e., freezers), ongoing costs to DOJ and local agencies (likely state-reimbursable), would potentially be very major. To the extent additional motions for DNA testing are filed and granted under the provisions of this bill, potentially significant future cost savings through reduced state incarceration costs (General Fund) could be realized to the extent inmates are released from prison. The release of five inmates who would have otherwise served an additional 10 years in prison would result in cumulative savings of over $1.5 million. In some cases, savings would be offset in part by restitution paid by the state of $100 per day for wrongful incarceration. Staff does note that any savings could potentially be offset or exceeded should the DNA testing result in the positive identification and conviction of another individual for the crime. Recommended Amendments: To reduce costs, the author may wish to consider raising the standard of review to be considered by the courts for granting motions for DNA testing, and/or reducing the extended length of time agencies are mandated to retain DNA evidence. Committee amendments do the following: Revert the standard of review for post-conviction DNA testing back to existing law. Delete the extended DNA storage requirements for defendants during the period of probation. Make other technical changes.