BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1355 Hearing Date: April 12, 2016
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|Author: |Glazer |
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|Version: |February 19, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Criminal Law: DNA Evidence
HISTORY
Source: Author
Prior Legislation:AB 390 (Cooper) - Held Senate Public Safety
2015
Proposition 69 November 2, 2004
SB 883 (Margett) not heard Assembly Public Safety
2004
SB 284 (Brulte) - failed Senate Public Safety
2003
SB 1242 (Brulte) - Chapter 632, Stats. 2002
AB 2105 (La Suer) - Chapter 160, Stats. 2002
AB 673 (Migden) - Chapter 906, Stats. 2001
AB 2814 (Machado) - Chapter 823, Stats. 2000
AB 557 (Nakano) - not heard in Senate Public
Safety 1999-2000
SB 654 (Schiff) - Chapter 475,
Stats. 1999
AB 1332 (Murray) - Chapter
696, Stats. 1998
Support: California District Attorneys Association; California
State Sheriffs' Association; Crime Victims United of
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California; Peace Officers Research Association of
California; California Police Chiefs Association;
Crime Victims United of California; San Diego County
District Attorney; Sacramento County District
Attorney's Office
Opposition:California Attorneys for Criminal Justice; American
Civil Liberties Union; Legal Services for Prisoners
with Children
PURPOSE
The purpose of this bill is to require the collection of DNA
from persons convicted of crimes that were made misdemeanors by
Proposition 47.
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
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;
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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)
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).)
Existing law provides any person arrested for or charged with a
felony and any person required to register as a sex offender or
arsonist shall be required to submit buccal swab samples, a full
palm print impression of each hand and any blood specimens or
other biological samples required for submission to the DNA
databank. (Penal Code § 296)
This bill specified misdemeanors to provide buccal swab samples
(DNA), right thumbprints, and a full palm print impression of
each hand, and any blood specimens or other biological samples
required for law misdemeanor offenses, to the list of
individuals required to provide DNA cheek swab samples, right
thumbprints, and a full palm print impression of each hand, and
any blood specimens or other biological samples chapter for law
enforcement identification analysis.
This bill expands these provisions to require persons convicted
of the following misdemeanor offenses to give samples be
included in the DNA Databank :
Shoplifting; forgery where the value for the forged
document does not exceed $950;
Check fraud where the total amount of checks does not
exceed $950;
Grand theft that is punishable as a misdemeanor;
possession of stolen property that is punishable as a
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misdemeanor;
A misdemeanor violation for possession of a list of
specified drugs, including cocaine, methamphetamine,
concentrated cannabis; and
A misdemeanor violation of petty theft with specified
prior theft convictions, and prior convictions for serious
or violent felonies, or required to register as a sex
offender.
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 The Bill
According to the author:
DNA evidence has proven to be a powerful and reliable
form of forensic evidence that can conclusively reveal
guilt or innocence.
In 2014, California voters passed Proposition 47, which
reduced specified non-serious, nonviolent crimes from
felonies to misdemeanors.
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While Prop 47 was successful in refocusing resources on
more serious offenses and maximizing alternatives for
non-serious, nonviolent crime, it also had the
unintended consequence of taking away an effective tool
used by law enforcement to catch serious and violent
offenders, namely DNA collection for those crimes
downgraded from a felony to a misdemeanor.
Data from the Attorney General's office shows that it
is not uncommon for those who commit certain
non-violent crimes to also commit more serious
offenses.
The reforms contained within SB 1355 will keep intact
the intent of Prop 47 while ensuring law enforcement
has the tools necessary to investigate unsolved rapes,
murders, and other serious and violent crimes.
In 2013, 2014, and 2015, 1,396 total crimes were linked
to DNA samples taken from certain non-violent
offenders, according to data from the Attorney
General's office.
Unfortunately, DNA is no longer collected for these
same qualifying arrest offenses. Together, these are
1,396 crimes that could have potentially gone unsolved
without the collection of DNA and subsequent "hit" in
CODIS.
Specifically, these crimes included 54 murders, 4
attempted murders, 196 rapes, 1 assault to commit rape,
and 1 kidnapping with intent to commit rape.
It is imperative that we do not limit an effective tool
that is already currently in use by law enforcement to
investigate and arrest those who commit rape, murder,
or other serious and violent felonies.
With preliminary FBI data showing California's violent
crime rate rose for the first time in 2015 after years
of decline, it is more important than ever to make sure
we preserve law enforcement's ability to solve serious
and violent crimes.
2. California DNA Database
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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. Proposition 69
Proposition 69 was passed by the voters in 2004. That
proposition expanded the categories of people required to
provide DNA samples for law enforcement identification analysis
to include any adult person arrested or charged with any felony
offense. Proposition 69 provided for an expungement process for
those individuals who were not convicted of a qualifying offense
and had no prior qualifying offense.
4. Proposition 47
Proposition 47 was passed by the voters in 2014. By passing
Proposition 47, the voters determined that certain offense can
only be charged and punished as misdemeanors. The offenses that
were affected by the voters in Prop. 47 were predominantly
"wobblers." A wobbler is an offense which can be charged as a
felony, or a misdemeanor, at the discretion of the district
attorney's office responsible for charging the crime. The only
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offense affected by Proposition 47, that was chargeable
exclusively as a felony, was possession of specified drugs,
primarily cocaine. (Health and Safety Code, § 11350(a).)
5. Expansion of DNA Data Bank to Include Misdemeanors
This bill would expand the collection of DNA to include
misdemeanors that used to be wobblers or felonies
pre-Proposition 47. Currently in California the only
misdemeanors that are included are those for which a person must
register as a sex offender or as an arsonist.
According to the National Conference on State Legislatures,
while 29 states collect DNA from at least some felonies only
eight states collect DNA from specified misdemeanors. Of those
states, Alabama, Arizona, Kansas, Louisiana, Minnesota, North
Carolina, South Carolina and South Dakota, in all but Kansas and
Minnesota the misdemeanors that are collected are misdemeanor
sex offenses. Minnesota does not include all felonies and
includes specific misdemeanors that are either sex offenses or
things like stalking.
(http://www.ncsl.org/Documents/cj/ArresteeDNALaws.pdf)
This legislation requires that DNA samples be taken from
individuals convicted of misdemeanors that were all affected by
Prop. 47. Before Prop 47 these offenses were wobblers (except
possession of cocaine), and thus an individual arrested for one
of these offenses, could have been arrested for a felony or a
misdemeanor, at the discretion of the officer. Similarly, these
offenses could have been charged as either misdemeanors or
felonies at the discretion of the district attorney's offices
responsible for making charging decisions. Thus, many
instances covered by the proposed legislation would not have
triggered DNA collection prior to Proposition 47.
6. Support
The San Diego District Attorney supports this bill stating:
DNA evidence has proven to be a powerful and reliable
form of forensic evidence that can conclusively reveal
guilt or innocence. In 2014, California voters passed
Proposition 47, which reduced specified non-serious,
nonviolent crimes from felonies to misdemeanors. While
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Prop 47 was successful in refocusing resources on more
serious offenses and maximizing alternatives for
non-serious, nonviolent crime, it also had the
unintended consequence of taking away an effective tool
used by law enforcement to catch serious and violent
offenders, namely DNA collection for those crimes
downgraded from a felony to a misdemeanor.
Data from the Attorney General's office shows that it
is not uncommon for those who commit certain
non-violent crimes to also commit more serious
offenses. In 2013, 2014, and 2015, 1,396 total crimes
were linked to DNA samples taken from certain
non-violent offenders. Specifically, these crimes
included 54 murders, 4 attempted murders, 196 rapes, 1
assault to commit rape, and 1 kidnapping with intent to
commit rape. Unfortunately, DNA is no longer collected
for these same qualifying arrest offenses.
It is imperative that we do not limit an effective tool
that is already currently in use by law enforcement to
investigate and arrest those who commit rape, murder,
or other serious and violent felonies. With preliminary
FBI data showing California's violent crime rate rose
for the first time in 2015 after years of decline, it
is more important than ever to make sure we preserve
law enforcement's ability to solve serious and violent
crimes.
Specifically, SB 1355 will allow for the collection of
a DNA sample upon the conviction for any of the
following, newly reclassified crimes:
Shoplifting
Forgery
Insufficient funds for a check
Grand theft
Receiving stolen property
Petty theft with a prior conviction
Possession of a controlled substance (cocaine,
heroin, methamphetamines, etc.)
Possession of concentrated cannabis
The reforms contained within SB 1355 will keep intact
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the intent of Prop 47 while ensuring law enforcement
has the tools necessary to investigate unsolved rapes,
murders, and other serious and violent crimes.
7. Opposition
The ACLU opposes this bill stating:
Historically, increasing the number of people from whom
DNA is collected in California has not increased the
overall rate at which law enforcement have been able to
identify perpetrators of violent crimes. In fact, just
the opposite is true. According to the California
Department of Justice (DOJ), the clearance rate<1> for
unsolved violent crimes in California was higher in
2004 - the year voters passed Prop 69, expanding the
database - than it was nearly 10 years later, in
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<1> While the DOJ reports overall violent crime clearance rates
for the state, there is no standard definition of a "clearance,"
as different law enforcement agencies label their cases
differently. (Ryan Gabrielson, Homicide 'clearance rate' offers
more questions than answers, California Watch: Founded by the
Center for Investigative Reporting (March 7, 2011), available at
http://californiawatch.org/dailyreport/homicide-clearance-rate-of
fers-more-questions-answers-9037.) For example, while in one
county a cleared homicide may mean a solved crime, in another it
may mean that a crime simply results in an arrest, with no
reference at all as to whether the case actually resulted in a
valid conviction. (Id.) Even greater divergences appear with
regard to forcible rape, robbery, and aggravated assault cases.
Law enforcement agencies can clear these types of cases either
by making an arrest or by labeling them: 1) "Inactive," when
officers have exhausted all investigative leads without securing
enough evidence to make an arrest; 2) "Unfounded," when an
investigation reveals that no crime was committed; 3) "By
exception," when officers have enough evidence to make an
arrest, but are unable to proceed because the suspect cannot be
detained, and generally limited to instances when police cannot
extradite a suspect, or when the suspect is dead. (Id.)
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2013.<2> This means that while more people have been
added to the DNA database, and additional taxpayer
dollars have gone towards greater collection efforts,
the rate at which law enforcement officers have been
able to solve violent crimes has not increased.
The use of DNA in solving crimes is limited by the
ability to detect and collect DNA at crime scenes, not
by the number of profiles in the DNA database.<3>
Needless expansion of the database could further
overwhelm already backlogged crime labs, delaying
investigations and forcing victims of crimes to wait
even longer for evidence from their crime to be
processed. Just this year, there are three separate
bills identifying deficiencies in the current testing
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<2> In 2004, 47.2% of the unsolved violent crimes were cleared;
whereas in 2013, the violent crime clearance rate was only
45.6%. (State of California Department of Justice, Office of
the Attorney General Criminal Justice Statistics Center
Statistics: Crimes and Clearances, available at
http://oag.ca.gov/crime/cjsc/stats/crimes-clearances.)
<3> Interview with Sheldon Krimsky and Tania Simcelli, coauthors
of Genetic Justice: DNA Data Banks, Criminal Investigations, and
Civil Liberties, Columbia University Press blog (March 28,
2011), http://www.cupblog.org/?p=3314.
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and tracking of rape kits.<4>
Law enforcement and governmental agencies often point
towards higher "hit" rates as evidence of successful
DNA database expansion. However, hit rates are
misleading. Hits only indicate that a match was made -
not whether the hit resulted in a person being
apprehended and prosecuted, or, more importantly,
whether the right person was apprehended and
prosecuted. In addition, hit rates are not an accurate
measure of cases solved by DNA evidence because such
figures include cases in which individuals were charged
and convicted without the use of DNA - for example, if
the hit occurs subsequent to the conviction.<5>
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<4> See AB 1848 (Chiu); AB 1744 (Cooper); AB 2499 (Maienschein).
<5> As Bruce Budowle, one of the original architects of the
Combined DNA Index System (CODIS) (the national DNA database
system accessed by local, state, and federal law enforcement
agencies and officials across the country) stated:
?As long as there are a lot of profiles in the database and
the search engines are used, there will always be a large
number of transactions. But there is no indication if the
tax payer has gotten his/her money's worth regarding
solving crime or whether a victim's case will be resolved
because sufficient resources and processes are not in place
to assess the overall performance of CODIS. Simply put,
the actual numbers of success are not known. Therefore, we
are left only with balancing decisions of expansion and
privacy on the value of individual victims, the number of
hits, and the assumption that most hits translate into
successful investigative leads.
(Declaration of Bruce Budowle in Support of Motion for
Preliminary Injunction, Haskell v. Brown, No. 09-4779 (N.D. Cal.
Oct. 30, 2009), ECF No. 17.)
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***
Like any procedure that relies on human precision, DNA
testing is susceptible to human error. There are
already innumerable opportunities for error in the DNA
sampling process, and putting more people into the DNA
database could create backlogs and undermine quality
control at crime laboratories. Even without the
thousands of new samples that would require testing
under SB 1355, a number of cases have already come to
light in which people have been wrongly convicted
because of mishandled DNA evidence or mistakes made in
DNA testing. Most notably, in Santa Clara County in
2013, Lukis Anderson - a 26-year-old man of color -
spent six months in jail for a murder he could not
possibly have committed, after paramedics accidentally
transferred his DNA to the body of the crime victim.<6>
At the time the mistake was discovered, Mr. Lukis was
facing life in prison and possibly the death penalty
for the crime.<7>
***
DNA collection has very serious privacy implications.
Unlike fingerprints - which are merely two dimensional
representations of the surface of a person's finger and
reveal nothing other than a person's identity - DNA
contains our genetic codes, which reveal the most
intimate, private information, not only about the
person whose DNA is collected but for everyone else in
that person's extended family. A single breach of
security could divulge sensitive information that a
person might not even know about him or herself to
employers, insurance companies, and identity thieves.
For this reason, most state legislatures and the United
States Supreme Court have taken great care to limit
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<6> Henry K. Lee, How innocent man's DNA was found at killing
scene, SFGate, June 26, 2013, available at
http://www.sfgate.com/crime/article/How-innocent-man-s-DNA-was-fo
und-at-killing-scene-4624971.php.
<7> Id.
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collection of DNA to more serious crimes.<8>
SB 1355 - which seeks to add minor misdemeanor
offenses, such as simple drug possession and
shoplifting, to the list of crimes that trigger DNA
collection - goes far beyond the scope of what most of
the country has determined is necessary or reasonable.
While most states, like California, require DNA
collection from people convicted of misdemeanor sex
offenses, less than half require DNA samples from
people convicted of misdemeanors other than sex
offenses.<9> Of those, most states limit collection to
individuals convicted of serious misdemeanors.<10>
Alabama, for example, collects misdemeanor DNA samples
only from people convicted of offenses involving danger
to the person.<11> North Carolina limits its
misdemeanor collection to people convicted of certain
sex offenses, certain arson-related offenses, assaults
on handicapped persons, and stalking.<12>
***
People of color - who are stopped, searched, and
arrested at much higher rates than white people - are
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<8> See Maryland v. King (U.S. 2013) 133 S. Ct. 1958.
<9> See e.g. Convicted Offenders Required to Submit DNA Samples:
National Conference of State Legislatures, available at
http://www.ncsl.org/Documents/cj/ConvictedOffendersDNALaws.pdf
(data based on 2013 numbers).
<10> Id.
<11> Ala. Code §§ 36-18-25; 36-18-24; 13a, et seq. .
<12> N.C. Gen. Stat. Ann. §15A-266.4.
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disproportionately represented in DNA databases.<13>
This racial disparity means that communities of color
will be exposed to the negative effects of crime lab
error and intrusive police investigations far more
often than white people. Expanding the DNA database as
SB 1355 proposes to include low level, nonviolent
misdemeanors could result in additional people of color
being falsely accused and convicted of crimes they did
not commit. This will only add to the existing racial
inequalities in our criminal justice system.
-- END -
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<13> Michael Risher, Racial Disparities in Databanking of DNA
Profiles, ACLU of Northern California, available at
https://www.aclunc.org/sites/default/files/racial_disparities_in_
databanking_dna_profiles.pdf.