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  
               -----------------------
          <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  
                                     -----------------------
          <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>  

               -----------------------
          <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  
               -----------------------
               -----------------------
          <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  
               -----------------------
          <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 -
                                          


          























          ---------------------------
          <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.