BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 1079       Hearing Date:    April 12, 2016    
          
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          |Author:    |Glazer                                               |
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          |Version:   |March 28, 2016                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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                 Subject:  DNA Evidence:  CODIS Hit Outcome Project



          HISTORY

          Source:   Attorney General Kamala Harris

          Prior Legislation:None

          Support:  Unknown

          Opposition:Electronic Frontier Foundation

                                                


          PURPOSE

          The purpose of this bill is to require local law enforcement to  
          submit information regarding the outcome of investigative leads  
          provided by the DNA Database to a CODIS Hit Outcome Project  
          database to be managed and administered by the Department of  
          Justice.

          Existing law provides that the Department of Justice (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  







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          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: 

                 Forensic casework and forensic unknowns; 
                 Known and evidentiary specimens and samples from crime  
               scenes or criminal investigations;
                 Missing or unidentified persons;
                 Persons required to provide specimens, samples, and  
               print impressions;
                 Legally obtained samples; and
                 Anonymous DNA records used for training, research,  
               statistical analysis of populations, quality assurance, or  
               quality control.  (Penal Code § 295.1(c))

          Existing law specifies that the Director of Corrections, or the  
          Chief Administrative Officer of the detention facility, jail, or  
          other facility at which the blood specimens, buccal swab  
          samples, and thumb and palm print impressions were collected  
          send them promptly to the DOJ.(Penal Code § 298.) 

          Existing law requires the DNA Laboratory of DOJ to establish  
          procedures for entering data bank and database information.  
          (Penal Code § 298(b)(6).) 

          This bill declares that the CODIS Hit Outcome Project (CHOP)  
          shall be managed and administered by the Department of Justice.

          This bill states that the CHOP database shall provide a  








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          restricted-access repository for tracking the occurrence and  
          consequences of DNA database hits, such that information with  
          investigatory value may be shared among affected law enforcement  
          agencies and efficacy of the DNA database may be monitored and  
          reported upon by the state.

          This bill states that every city, county or state laboratory in  
          California participation in CODIS shall, upon notification by  
          the DOJ that a CODIS hit has occurred, enter into the CHOP  
          database the data specified by the department.

          This bill provides that on a schedule set forth by the  
          department, and pursuant to instructions published by the  
          department, each law enforcement agency within California  
          responsible for the investigation or prosecution of a case  
          involving a DNA database match to a California offender shall  
          report to the DOJ, through the CHOP database, the status or  
          outcome of that investigative lead.

          This bill provides that a city, county and city and county shall  
          be reimbursed for the cost of submitting the required  
          information to the CHOP database.

          This bill states that the CHOP database shall contain records of  
          indexed information related to DNA hits and case-to-case  
          matches, including but not limited to the identity of the  
          submitting crime laboratory, the investigating law enforcement  
          agency, a district attorney contact, and offender information,  
          including criminal charges and conviction information.

          This bills states that the CHOP database shall not contain DNA  
          profiles.

          This bill provides that information collected by the DOJ for the  
          CHOP database is investigatory in nature and shall be deemed  
          official information and subject to the disclosure protections  
          of Sections 1040 and 1041 of the Evidence Code.

          This bill provides that nothing in this section shall require  
          DOJ or a local law enforcement agency to disclose any  
          information protected under Sections 1040 and 1041 of the  
          Evidence Code or Section 6245 of the Government Code.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION








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          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.   
          (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,  








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          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:

               Several large counties regularly entered their data  
               into CHOP. However, local participation in CHOP is  
               currently optional. Only a fraction of CODIS hits have  
               been complete follow-up information, such as whether a  
               suspect identified by a DNA profile search has been  
               located; if the required reference sample has been  
               taken and sent to the laboratory; and further status on  
               pending investigations, filed charges, or ultimate  
               convictions.  The absence of full participation makes  
               the information in CHOP incomplete and unreliable.

               A lack of universal CHOP use makes it very difficult  
               for local agencies and DOJ to ensure that CODIS hit  
               information is being used to its full potential for  
               case investigation and prosecution.









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          2.  California DNA Database
          
          The profile derived from a DNA sample is uploaded into the  
          state's DNA databank, which is part of the national Combined DNA  
          Index System (CODIS), and can be accessed by local, state and  
          federal law enforcement agencies and officials. When a DNA  
          profile is uploaded, it is compared to profiles contained in the  
          Convicted Offender and Arrestee Indices; if there is a "hit,"  
          the laboratory conducts procedures to confirm the match and, if  
          confirmed, obtains the identity of the suspect. The uploaded  
          profile is also compared to crime scene profiles contained in  
          the Forensic Index; again, if there is a hit, the match is  
          confirmed by the laboratory.  CODIS also performs weekly  
          searches of the entire system.  In CODIS, the profile does not  
          include the name of the person from whom the DNA was collected  
          or any case-related information, but only a specimen  
          identification number, an identifier for the agency that  
          provided the sample, and the name of the personnel associated  
          with the analysis.  CODIS is also the name of the related  
          computer software program.  CODIS's national component is the  
          National DNA Index System (NDIS), the receptacle for all DNA  
          profiles submitted by federal, state, and local forensic  
          laboratories.  DNA profiles typically originate at the Local DNA  
          Index System (LDIS), then migrate to the State DNA Index System  
          (SDIS), containing forensic profiles analyzed by local and state  
          laboratories, and then to NDIS. 

          3.  CHOP Database
          
          This bill creates the CHOP database in the DOJ.  City, county  
          and state laboratories participating in CODIS will be required  
          to enter specified data into the CHOP database after they are  
          notified that a hit in the CODIS database has occurred.  The  
          database shall contain information related to DNA hits and  
          case-to-case matches, including, but not limited to, the  
          identity of the submitting crime laboratory, the investigating  
          law enforcement agency, a district attorney contact, offender  
          information, investigative status and resulting criminal charges  
          and conviction information.













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          4.  Investigatory in Nature
          
          This bill provides that the information collected in the CHOP  
          data base to be investigatory in nature and official information  
          and therefore its disclosure will be limited under Evidence Code  
          Section 1040 and 1041 and Government Code Section 6254.

          It is unclear why this data that is collected should be  
          considered investigatory.   The CHOP database does not contain  
          any actual DNA information.  The data could even be collected in  
          a manner that provides for no personal identifying information  
          of the person whose DNA resulted in a CODIS hit.  Evidence Code  
          Sections 1040 and 1041 would give the DOJ the privilege to  
          disclose the information but contrary to the point of these  
          sections which is to keep information confidential when it is in  
          the public interest, the data in CHOP is information that is  
          clearly in the public interest to be disclosed.  The public,  
          through the Legislature, press, defense bar, academic  
          institutions etcetera, has an interest in the effectiveness of  
          the DNA databank.  It is in the public interest to know whether  
          taking DNA from a great number of people is valuable, whether  
          investment in state and local data banks is valuable and this  
          information should be able to be evaluated by people outside the  
          law enforcement community.


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