BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2013-2014 Regular Session B
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AB 1697 (Donnelly) 7
As Amended April 10, 2014
Hearing date: June 17, 2014
Penal Code
MK:mc
DNA AND FORENSIC IDENTIFICATION
DATABASE AND DATA BANK
HISTORY
Source: Author
Prior Legislation: None
Support: Taxpayers for Improving Public Safety
Opposition:None known
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUE
SHOULD THE DNA AND FORENSIC DATABASE AND DATA BANK AND THE
DEPARTMENT OF JUSTICE DNA LABORATORY BE PROHIBITED FROM BEING USED
AS A SOURCE OF GENETIC MATERIAL FOR TESTING, RESEARCH EXPERIMENTS OR
BY ANY PERSON, AGENCY OR ENTITY SEEKING TO FIND A CAUSAL LINK
BETWEEN GENETICS AND BEHAVIOR OR HEALTH?
PURPOSE
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The purpose of this bill is to prohibit the DNA and forensic
database and data bank and the Department of Justice (DOJ) DNA
Laboratory from being used as a source of genetic material for
testing, research or experiments by any person, agency or entity
seeking to find a causal link between genetics and behavior or
health.
Existing law provides that 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:
a) Forensic casework and forensic unknowns;
b) Known and evidentiary specimens and samples from crime scenes
or criminal investigations;
c) Missing or unidentified persons;
d) Persons required to provide specimens, samples, and print
impressions;
e) Legally obtained samples; and,
f) Anonymous DNA records used for training, research,
statistical analysis of populations, quality assurance, or
quality control.
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Existing law requires the following persons to provide buccal
swab samples, right thumbprints, and a full palm print
impression of each hand, and any blood specimens or other
biological samples required for law enforcement identification
analysis:
a) Any person, including any juvenile, who is convicted of or
pleads guilty or no contest to any felony offense (or attempt
thereof), or is found not guilty by reason of insanity of any
felony offense (or attempt thereof), or any juvenile who is
adjudicated a ward of the juvenile court, as specified, for
committing any felony offense (or attempt thereof).
b) Any adult person who is arrested for or charged with any
felony offense (or attempt thereof).
c) Any person, including any juvenile, who is required to
register under the sex offender or arson registries because of
the commission of, or the attempt to commit, a felony or
misdemeanor offense, or any person, including any juvenile, who
is housed in a mental health facility or sex offender treatment
program after referral to such facility or program by a court
after being charged with any felony offense (or attempt
thereof). (Penal Code, � 296.)
Existing law states that all DNA and forensic identification
profiles and other identification information retained by DOJ
pursuant to the Act are exempt from any law requiring disclosure
of information to the public and are confidential except as
otherwise provided in the Act.
Existing law provides that, except to the defense counsel, upon
court order, of a defendant whose DNA and other forensic
identification information were developed pursuant to the Act,
DOJ and local public DNA laboratories shall not otherwise be
compelled in a criminal or civil proceeding to provide any DNA
profile or forensic identification database or data bank
information or its computer database program software or
structures to any person or party seeking such records or
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information whether by subpoena, discovery, or other procedural
device or inquiry. (Penal Code, � 299.5 (h).)
Existing law punishes as an alternate misdemeanor/felony any
person who knowingly uses an offender specimen, sample, or DNA
profile collected pursuant to the Act for other than criminal
identification or exclusion purposes, or for other than the
identification of missing persons, or who knowingly discloses
DNA or other forensic identification information developed as
specified to an unauthorized individual or agency, for other
than criminal identification or exclusion purposes, or for the
identification of missing persons, by imprisonment in a county
jail not exceeding one year or by imprisonment in the state
prison for 16 months, or two or three years. (Penal Code, �
299.5(i)(1)(A).)
Existing law specifies that it is not a violation of the above
provision for the DOJ DNA Laboratory, or an organization
retained as a DOJ agent, or a local public laboratory to use
anonymous records or criminal history information obtained
pursuant to the Act for training, research, statistical analysis
of populations, quality assurance, or quality control. (Pen.
Code,
� 299.5, subd. (m).)
Existing law provides that the Act does not prohibit DOJ, in its
sole discretion, from the sharing or disseminating of population
database or data bank information, DNA profile or forensic
identification database or data bank information, analytical
data and results generated for forensic identification database
and data bank purposes, or protocol and forensic DNA analysis
methods and quality assurance or quality control procedures with
any third party that DOJ deems necessary to assist the
department's crime laboratory with statistical analyses of
population databases, or the analyses of forensic protocol,
research methods, or quality control procedures, or to assist in
the recovery or identification of human remains for humanitarian
purposes, including identification of missing persons. (Penal
Code, � 299.6 (a)(5).)
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This bill provides that the DNA and forensic identification
database and data bank and the DOJ DNA Laboratory shall not be
used as a source of genetic material for testing, research, or
experiments, by any person, agency or entity seeking to find a
causal link between genetics and behavior or health.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
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federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
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.
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If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated May 15, 2014, the state
reported that as of May 14, 2014, 116,428 inmates were housed in
the State's 34 adult institutions, which amounts to 140.8% of
design bed capacity, and 8,650 inmates were housed in
out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
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The California Department of Justice (DOJ) maintains
indefinite access to more than 1.8 million DNA samples
and counting. Two recent court rulings have determined
that it is constitutional for law enforcement to
maintain DNA samples indefinitely, even if you were
never convicted of a crime. (Maryland v. King (2013)
133 S.Ct. 1958, 1989 & U.S. v. Kriesel (9th Cir. 2013)
720 F.3d 1137, 1160.). These aforementioned samples
contain an individual's entire genome, and could be
tested to reveal traits related to ethnicity, health,
and behavior. While the DOJ may only perform DNA
analysis "for identification purposes," this term is
not defined, and could include research into the link
between genes and criminal behavior. Existing law
authorizes the DOJ to use its samples for research
purposes, and its vast collection of DNA samples
provides the means to study how genetic profiles could
help preemptively identify individuals predisposed to
criminal behavior. This emerging field is known as
"behavioral genomics."
Recent research indicates that more than one-half of
the variance in antisocial behavior can be attributed
to genetic factors (C.J. Ferguson, Genetic
Contributions to Antisocial Personality and Behavior: a
Meta-analytic Review from an Evolutionary Prospective,
Journal of Social Psychology (March-April 2010, Volume
150, Issue 2, pp. 160-180)). For example, researchers
have demonstrated that individuals possessing one
particular gene variant are statistically more likely
to join a gang, and also more likely to use a weapon in
a fight (Kevin M. Beaver, et al., Monoamine Oxidase A
Genotype Is Associated with Gang Membership and Weapon
Use, Comprehensive Psychiatry (March 2010, Volume 51,
Issue 2, pp. 130-134)). The ability of this research
to identify likely criminals and potential criminals
will increase dramatically as researchers gain the
means to track the interaction of thousands of gene
variants across millions of samples, and correlate
these results with known criminal behaviors. The
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Department of Justice DNA repository offers that
capability.
The ability to perform this analysis is increasingly
within reach. According to the National Human Genome
Research Institute, the cost of whole-genome sequencing
has decreased more than 9,000 fold over the past 10
years.
2. DNA Database
In 1998, the Legislature enacted the DNA and Forensic
Identification Database and Data Bank Act of 1998, which
enhanced statewide biological identifying data collection by
establishing a database within DOJ to house DNA and forensic
identifying material 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." (Pen.
Code, � 295, subd. (c).) Among other things, the Act expanded
the list of crimes, upon the conviction of which, required an
individual to provide blood specimens and a saliva sample for
DNA and genetic analysis. The samples, collected by the
California Department of Corrections and Rehabilitation, the
Department of Youth Authority, and local jails, were submitted
to DOJ for analysis and storage in the statewide DNA data bank
and compared to DNA evidence collected from crime scenes for
possible matches. The DNA profiles also are submitted to the
Combined DNA Index System (CODIS) maintained by the FBI. (Pen.
Code, � 295, subd. (g).) CODIS connects DNA laboratories at the
local, state, and national levels and standardizes the points of
comparison used in DNA analysis. (Ibid.)
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In 2004, voters amended the Act with the passage of Proposition
69, the "DNA Fingerprint, Unsolved Crime and Innocence
Protection Act." Proposition 69, upon enactment of the measure,
required that DNA collection be expanded to include adults and
juveniles convicted of any felony offense; adults and juveniles
convicted of any sex offense; adults arrested for or charged
with felony sex offenses, murder, voluntary manslaughter, or the
attempt of these crimes. (Pen. Code, � 296, subd. (a).)
Starting in 2009, Proposition 69 required the DNA collection of
all adults arrested for or charged with (as opposed to only
those convicted of) any felony offense. (Ibid.) Moreover, in
addition to the biological samples already required to be
provided under then-existing law, Proposition 69 mandated that
those individuals specified above also provide buccal swab
samples, right thumbprints, and a full palm print impression of
each hand. (Ibid.)
3. Prohibits Use as a Source of Genetic Material
This bill prohibits the DNA and forensic identification database
and data bank and the Department of Justice DNA Laboratory from
being used as a source of genetic material for testing,
research, or experiments, by any person, agency or entity
seeking to find a causal link between genetics or health.
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