BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1848 Hearing Date: June 21, 2016
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|Author: |Chiu |
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|Version: |May 9, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: DNA Evidence
HISTORY
Source: Attorney General's Office
Prior Legislation:AB 1517 (Skinner) - Ch. 874, Stats. 2014
AB 322 (Portantino) -Vetoed 2011
AB 558 (Portantino) -Vetoed 2010
AB 1017 (Portantino) -Vetoed 2009
Support: Alameda County District Attorney; CALCASA: California
Partnership to End Domestic Violence; City and County
of San Francisco; The Junior League of San Francisco,
Inc.; National Council of Jewish Women California;
Planned Parenthood Affiliates of California; RISE; San
Francisco Sheriff
Opposition:California State Sheriffs' Association
Assembly Floor Vote: 77 - 0
PURPOSE
The purpose of this bill is to require local law enforcement
agencies to periodically update the Sexual Assault Forensic
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Evidence Tracking database (SAFE-T) on the disposition of all
sexual assault evidence kits (rape kits) in their custody.
Existing law requires an adult arrested for or charged with a
felony and a juvenile adjudicated for a felony to submit
deoxyribonucleic acid (DNA) samples. (Penal Code § 296.)
Existing law establishes the DNA and Forensic Identification
Database and Data Bank Program 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. (Penal
Code §§ 295, 295.1.)
Existing law encourages DNA analysis of rape kits within the
statute of limitations, which states that a criminal complaint
must be filed within one year after the identification of the
suspect by DNA evidence, and that DNA evidence must be analyzed
within two years of the offense for which it was collected.
(Penal Code, § 680 (b)(6).)
Existing law encourages law enforcement agencies to submit rape
kits to crime labs within 20 days after the kit is booked into
evidence. (Penal Code, § 680 (b)(7)(A)(i).)
Existing law encourages the establishment of rapid turnaround
DNA programs, where the rape kit is sent directly from the
facility where it was collected to the lab for testing within
five days. (Penal Code, § 680(b)(7)(A)(ii) and (E).)
Existing law encourages crime labs to do one of the following:
a) Process rape kits, create DNA profiles when possible, and
upload qualifying DNA profiles into CODIS within 120 days of
receipt of the rape kit; or b) Transmit the rape kit to another
crime lab within 30 days to create a DNA profile, and then
upload the profile into CODIS within 30 days of being notified
about the presence of DNA. (Penal Code, § 680 (b)(7)(B).)
Existing law requires law enforcement agencies to inform victims
in writing if they intend to destroy a rape kit 60 days prior to
the destruction of the rape kit, when the case is unsolved and
the statute of limitations has not run. (Penal Code, §§ 680 (e)
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and (f), 803.)
This bill finds and declares that there is a significant public
interest in knowing whether rape kits have been tested and if
the kits have not been tested, the reasons why they were not
tested.
This bill requires participation by law enforcement agencies in
the SAFE-T database.
This bill requires law enforcement agencies, on a schedule set
by the Department of Justice (DOJ) to submit via SAFE-T the:
Number of rape kits collected during the set period;
Number of kits where biological evidence was submitted
to a DNA laboratory for analysis;
Number of kits from which a DNA profile hit was
generated: and
Reasons why a particular rape kit was not submitted to a
DNA laboratory for testing.
This bill requires DNA laboratories to enter into SAFE-T, every
120 days, and the reasons why any particular rape kit has not
been tested.
This bill provides that upon expiration of a sexual assault
case's statute of limitations, or if a law enforcement agency
elects not to analyze the DNA or intends to destroy or dispose
of crime scene evidence, the investigating law enforcement
agency shall state in writing the reason the kit collected as
part of the case's investigation was not analyzed. This written
statement relieves the law enforcement agency or public
laboratory of any further duty to report information related to
that kit.
This bill states that SAFE-T shall not contain any identifying
information about a victim or a suspect, any DNA profiles, or
any information that would impair a pending criminal
investigation.
This bill requires DOJ to report annually to the Legislature a
summary of the information entered into SAFE-T.
This bill states that, beside the required report to the
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Legislature, all contents of SAFE-T shall be confidential, and
no law enforcement agency or laboratory may be compelled in a
civil or criminal proceeding to disclose the contents of SAFE-T
unless the contents contain exculpatory evidence for a criminal
defendant.
This bill finds and declares that it is necessary to keep
SAFE-T's contents confidential in order to protect victims of
crime.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
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.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
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(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
In recent years, the federal government has identified
hundreds of thousands of rape kits that have gone
unanalyzed, known as the "rape kit backlog." Some
jurisdictions have worked to decrease their backlogs to
varying degrees. However, in California, no comprehensive
data is currently available about the number of sexual
assault evidence kits that local law enforcement agencies
collect annually or how many of those kits are analyzed.
Further, no comprehensive data exists about the reasons some
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sexual assault evidence kits are not analyzed.
A 2014 report by the California State Auditor revealed that
each year, thousands of kits go unanalyzed by a DNA
laboratory for a variety of reasons. The scope of the
statewide rape kit backlog cannot be determined because of a
lack of effective tracking at the local level. More
comprehensive data could assist policy makers as they
consider whether law enforcement agencies' current
approaches in this area need to change or whether or not law
enforcement needs additional resources to better manage the
processing of kits.
In many cases, survivors of sexual assault experience
re-traumatization when undergoing the forensic evidence
collection process. The neglect of these kits with no
explanation why they were not analyzed simply adds to the
trauma ensured by survivors seeking justice.
To address these issues, the State Auditor recommended that
agencies track each sexual assault evidence kit they collect
and report to the California Department of Justice (DOJ) on
how many are analyzed and why some are not. In response to
the State Auditor's report, DOJ created the Sexual Assault
Forensic Evidence Tracking system, or SAFE-T. This database
allows local agencies to log and provide status updates for
each kit they collect. With documented reasons for the
decisions, agencies would be able to clearly demonstrate to
victims, policy makers, and other interested parties why
they did not request such analyses.
AB 1848 would require local agencies to track all rape kits
collected from survivors by using SAFE-T in accordance with
the State Auditor's recommendations.
2. Tracking of Rape Kit Tests
A recent report by the California State Auditor found that law
enforcement agencies rarely document reasons for not analyzing
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sexual assault evidence kits. (California State Auditor, Sexual
Assault Evidence Kits (Oct. 2014).) Specifically, the report
found that:
[i]n 45 cases . . . reviewed in which investigators at
the three agencies we visited did not request a kit
analysis; the investigators rarely documented their
decisions. As a result, we often could not determine
with certainty why investigators decided that kit
analysis was not needed. Among the 15 cases we reviewed
at each of the three locations, we found no examples of
this documentation at either the Sacramento Sheriff or
the San Diego Police Department, and we found only six
documented explanations at the Oakland Police
Department. Investigative supervisors at both the
Sacramento Sheriff and the San Diego Police Department
indicated that their departments do not require
investigators to document a decision not to analyze a
sexual assault evidence kit. The lieutenant at the
Oakland Police Department's Special Victims Section
stated that, during the period covered by our review,
the section expected such documentation from its
investigators in certain circumstances, but that it was
not a formal requirement at that time. (Id. at p. 23.)
Upon a more in-depth review of the individual cases, the report
found that analysis of the kits would not have been likely to
further the investigation of those cases:
[The] decisions not to request sexual assault evidence
kit analysis in the individual cases we reviewed
appeared reasonable because kit analysis would be
unlikely to further the investigation of those cases.
We reviewed specific cases at each agency in which
investigators did not request analysis. Our review
included 15 cases from each of the three agencies we
visited with offenses that occurred from 2011 through
2013, for a total of 45 cases. In those cases, we did
not identify any negative effects on the investigations
as a result of decisions not to request analysis. We
based our conclusions on the circumstances present in
the individual cases we reviewed, as documented in the
files for the 45 cases and as discussed with the
investigative supervisors." (Id. at p. 21.)
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Even though the individual reasons for not testing the kits was
found to be reasonable, the report still stressed the need for
more information about why agencies decide to send some kits but
not others. It would benefit not only investigators, but the
public as well, because requiring investigators to document
their reasons for not requesting kit analysis would assist
agencies in responding to the public concern about unanalyzed
kits. Doing so would allow for internal review and would
increase accountability to the public. (Id. at pp. 23-24.)
3. Requiring Tracking
This bill would require law enforcement agencies to report
information regarding rape kit evidence to the department
through a database established by the Department of Justice
(DOJ). For the reporting period set up by the DOJ the agency
will report the number of kits collected; the number of kits
from which one or more biological samples were submitted to a
DNA laboratory for analysis; the number of kits from which a
probative DNA profile was generated; and, the reason or reasons
for not submitting evidence from a given rape kit to a DNA
laboratory for processing. The agency shall also report the
reason any kit submitted for processing has not been processed
within 120 days. The DOJ will then compile the information in
an annual report to the Legislature.
4. Support
CALCASA supports this bill stating in part:
In recent years, the federal government identified
hundreds of thousands of rape kits that have gone
unanalyzed, known as the "rape kit backlog." Some
jurisdictions have worked to decrease their backlogs to
varying degrees. However, in California, no
comprehensive data is currently available about the
number of sexual assault evidence kits that local law
enforcement agencies collect annually or how many of
those kits are analyzed. Further, no comprehensive
data exists about the reasons some sexual assault
evidence kits are not analyzed.
The scope of this problem cannot be properly estimated
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due to a lack of effective tracking at the local level.
With documented reasons for the decisions, agencies
would be able to clearly demonstrate to victims, policy
makers, and other interested parties why they did not
request analyses of each kit.
5. Opposition
The California State Sheriffs' Association opposes this bill
stating:
We share your intent that sexual assaults are
investigated and that perpetrators not go unpunished.
In 2014 CSSA worked with Assembly Member Nancy Skinner
to amend her AB 1517 into a final product that will
help achieve those goals without being overly
burdensome. However, by requiring law enforcement
agencies to provide statistics to DOJ, AB 1848 will
create another unfunded mandate and would place
significant cost burdens on these agencies in terms of
resources and personnel
Existing law permits law enforcement to notify a victim
about the status of his or her rape kit upon the
victim's request as well as requires law enforcement to
notify a victim of his or her rape kit is going to be
disposed of or not tested. We do not feel that this
balanced approach requires alteration.
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