79–006

106TH CONGRESS REPT. 106–900 " ! HOUSE OF REPRESENTATIVES 2d Session Part 1

DNA ANALYSIS BACKLOG ELIMINATION ACT OF 2000

SEPTEMBER 26, 2000.—Committed to the Committee of the Whole House on the

State of the Union and ordered to be printed

Mr. MCCOLLUM, from the Committee on the Judiciary,

submitted the following

R E P O R T

together with

MINORITY VIEWS

[To accompany H.R. 4640]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill

(H.R. 4640) making grants to States for carrying out DNA analyses

for use in the Combined DNA Index System of the Federal Bureau

of Investigation, to provide for the collection and analysis of DNA

samples from certain violent and sexual offenders for use in such

system, and for other purposes, having considered the same, report

favorably thereon with an amendment and recommend that the bill

as amended do pass.

CONTENTS

Page

The Amendment ......................................................................................... 2

Purpose and Summary .............................................................................. 8

Background and Need for the Legislation ................................................ 8

Hearings ...................................................................................................... 11

Committee Consideration .......................................................................... 12

Vote of the Committee ............................................................................... 12

Committee Oversight Findings ................................................................. 12

Committee on Government Reform Findings .......................................... 12

New Budget Authority and Tax Expenditures ........................................ 12

Congressional Budget Office Cost Estimate ............................................ 12

Constitutional Authority Statement ......................................................... 16

Section-by-Section Analysis and Discussion ............................................ 16

Agency Views .............................................................................................. 23

2

Page

Changes in Existing Law Made by the Bill, as Reported ....................... 44

Minority Views ........................................................................................... 53

The amendment is as follows:

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘DNA Analysis Backlog Elimination Act of 2000’’.

SEC. 2. AUTHORIZATION OF GRANTS.

(a) AUTHORIZATION OF GRANTS.—The Attorney General may make grants to eligible States for use by the State for the following purposes:

(1) To carry out, for inclusion in the Combined DNA Index System of the

Federal Bureau of Investigation, DNA analyses of samples taken from individuals convicted of a qualifying State offense (as determined under subsection

(b)(2)).

(2) To carry out, for inclusion in such Combined DNA Index System, DNA

analyses of samples from crime scenes.

(3) To increase the capacity of laboratories owned by the State or by units

of local government within the State to carry out DNA analyses of samples

specified in paragraph (2).

(b) ELIGIBILITY.—For a State to be eligible to receive a grant under this section,

the chief executive officer of the State shall submit to the Attorney General an application in such form and containing such information as the Attorney General may

require. The application shall—

(1) provide assurances that the State has implemented, or will implement

not later than 120 days after the date of such application, a comprehensive plan

for the expeditious DNA analysis of samples in accordance with this section;

(2) include a certification that each DNA analysis carried out under the

plan shall be maintained pursuant to the privacy requirements described in section 210304(b)(3) of the Violent Crime Control and Law Enforcement Act of

1994 (42 U.S.C. 14132(b)(3));

(3) include a certification that the State has determined, by statute, rule,

or regulation, those offenses under State law that shall be treated for purposes

of this section as qualifying State offenses;

(4) specify the allocation that the State shall make, in using grant amounts

to carry out DNA analyses of samples, as between samples specified in subsection (a)(1) and samples specified in subsection (a)(2); and

(5) specify that portion of grant amounts that the State shall use for the

purpose specified in subsection (a)(3).

(c) CRIMES WITHOUT SUSPECTS.—A State that proposes to allocate grant

amounts under paragraph (4) or (5) of subsection (b) for the purposes specified in

paragraph (2) or (3) of subsection (a) shall use such allocated amounts to conduct

or facilitate DNA analyses of those samples that relate to crimes in connection with

which there are no suspects.

(d) ANALYSIS OF SAMPLES.—

(1) IN GENERAL.—The plan shall require that, except as provided in paragraph (3), each DNA analysis be carried out in a laboratory that satisfies quality assurance standards and is—

(A) operated by the State or a unit of local government within the

State; or

(B) operated by a private entity pursuant to a contract with the State

or a unit of local government within the State.

(2) QUALITY ASSURANCE STANDARDS.—(A) The Director of the Federal Bureau of Investigation shall maintain and make available to States a description

of quality assurance protocols and practices that the Director considers adequate to assure the quality of a forensic laboratory.

(B) For purposes of this section, a laboratory satisfies quality assurance

standards if the laboratory satisfies the quality control requirements described

in paragraphs (1) and (2) of section 210304(b) of the Violent Crime Control and

Law Enforcement Act of 1994 (42 U.S.C. 14132(b)).

(3) USE OF VOUCHERS FOR CERTAIN PURPOSES.—A grant for the purposes

specified in paragraph (1) or (2) of subsection (a) may be made in the form of

a voucher for laboratory services, which may be redeemed at a laboratory operated by a private entity approved by the Attorney General that satisfies quality

assurance standards. The Attorney General may make payment to such a labVerDate 11-MAY-2000 05:21 Sep 27, 2000 Jkt 079006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6621 E:\PICKUP\HR900P1.XXX pfrm08 PsN: HR900P1
3

oratory for the analysis of DNA samples using amounts authorized for those

purposes under subsection (j).

(e) RESTRICTIONS ON USE OF FUNDS.—

(1) NONSUPPLANTING.—Funds made available pursuant to this section shall

not be used to supplant State funds, but shall be used to increase the amount

of funds that would, in the absence of Federal funds, be made available from

State sources for the purposes of this Act.

(2) ADMINISTRATIVE COSTS.—A State may not use more than three percent

of the funds it receives from this section for administrative expenses.

(f) REPORTS TO THE ATTORNEY GENERAL.—Each State which receives a grant

under this section shall submit to the Attorney General, for each year in which

funds from a grant received under this section is expended, a report at such time

and in such manner as the Attorney General may reasonably require, which

contains—

(1) a summary of the activities carried out under the grant and an assessment of whether such activities are meeting the needs identified in the application; and

(2) such other information as the Attorney General may require.

(g) REPORTS TO CONGRESS.—Not later than 90 days after the end of each fiscal

year for which grants are made under this section, the Attorney General shall submit to the Congress a report that includes—

(1) the aggregate amount of grants made under this section to each State

for such fiscal year; and

(2) a summary of the information provided by States receiving grants under

this section.

(h) EXPENDITURE RECORDS.—

(1) IN GENERAL.—Each State which receives a grant under this section shall

keep records as the Attorney General may require to facilitate an effective audit

of the receipt and use of grant funds received under this section.

(2) ACCESS.—Each State which receives a grant under this section shall

make available, for the purpose of audit and examination, such records as are

related to the receipt or use of any such grant.

(i) DEFINITION.—For purposes of this section, the term ‘‘State’’ means a State

of the United States, the District of Columbia, the Commonwealth of Puerto Rico,

the United States Virgin Islands, American Samoa, Guam, and the Northern Mariana Islands.

(j) AUTHORIZATION OF APPROPRIATIONS.—Amounts are authorized to be appropriated to the Attorney General for grants under subsection (a) as follows:

(1) For grants for the purposes specified in paragraph (1) of such

subsection—

(A) $15,000,000 for fiscal year 2001;

(B) $15,000,000 for fiscal year 2002; and

(C) $15,000,000 for fiscal year 2003.

(2) For grants for the purposes specified in paragraphs (2) and (3) of such

subsection—

(A) $25,000,000 for fiscal year 2001;

(B) $50,000,000 for fiscal year 2002;

(C) $25,000,000 for fiscal year 2003; and

(D) $25,000,000 for fiscal year 2004.

SEC. 3. COLLECTION AND USE OF DNA IDENTIFICATION INFORMATION FROM CERTAIN FEDERAL OFFENDERS.

(a) COLLECTION OF DNA SAMPLES.—

(1) FROM INDIVIDUALS IN CUSTODY.—The Director of the Bureau of Prisons

shall collect a DNA sample from each individual in the custody of the Bureau

of Prisons who is, or has been, convicted of a qualifying Federal offense (as determined under subsection (d)) or a qualifying military offense, as determined

under section 1565 of title 10, United States Code.

(2) FROM INDIVIDUALS ON RELEASE, PAROLE, OR PROBATION.—The probation

office responsible for the supervision under Federal law of an individual on probation, parole, or supervised release shall collect a DNA sample from each such

individual who is, or has been, convicted of a qualifying Federal offense (as determined under subsection (d)) or a qualifying military offense, as determined

under section 1565 of title 10, United States Code.

(3) INDIVIDUALS ALREADY IN CODIS.—For each individual described in paragraph (1) or (2), if the Combined DNA Index System (in this section referred

to as ‘‘CODIS’’) of the Federal Bureau of Investigation contains a DNA analysis

with respect to that individual, or if a DNA sample has been collected from that

individual under section 1565 of title 10, United States Code, the Director of

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the Bureau of Prisons or the probation office responsible (as applicable) may

(but need not) collect a DNA sample from that individual.

(4) COLLECTION PROCEDURES.—(A) The Director of the Bureau of Prisons or

the probation office responsible (as applicable) may use or authorize the use of

such means as are reasonably necessary to detain, restrain, and collect a DNA

sample from an individual who refuses to cooperate in the collection of the sample.

(B) The Director of the Bureau of Prisons or the probation office, as appropriate, may enter into agreements with units of State or local government or

with private entities to provide for the collection of the samples described in

paragraph (1) or (2).

(5) CRIMINAL PENALTY.—An individual from whom the collection of a DNA

sample is authorized under this subsection who fails to cooperate in the collection of that sample shall be—

(A) guilty of a class A misdemeanor; and

(B) punished in accordance with title 18, United States Code.

(b) ANALYSIS AND USE OF SAMPLES.—The Director of the Bureau of Prisons or

the probation office responsible (as applicable) shall furnish each DNA sample collected under subsection (a) to the Director of the Federal Bureau of Investigation,

who shall carry out a DNA analysis on each such DNA sample and include the results in CODIS.

(c) DEFINITIONS.—In this section:

(1) The term ‘‘DNA sample’’ means a tissue, fluid, or other bodily sample

of an individual on which a DNA analysis can be carried out.

(2) The term ‘‘DNA analysis’’ means analysis of the deoxyribonucleic acid

(DNA) identification information in a bodily sample.

(d) QUALIFYING FEDERAL OFFENSES.—(1) The offenses that shall be treated for

purposes of this section as qualifying Federal offenses are the following offenses

under title 18, United States Code, as determined by the Attorney General:

(A) Murder (as described in section 1111 of such title), voluntary manslaughter (as described in section 1112 of such title), or other offense relating

to homicide (as described in chapter 51 of such title, sections 1113, 1114, 1116,

1118, 1119, 1120, and 1121).

(B) An offense relating to sexual abuse (as described in chapter 109A of

such title, sections 2241 through 2245), to sexual exploitation or other abuse of

children (as described in chapter 110 of such title, sections 2251 through

2252A), or to transportation for illegal sexual activity (as described in chapter

117 of such title, sections 2421, 2422, 2423, and 2425).

(C) Kidnapping (as defined in section 3559(c)(2)(E) of such title).

(D) Burglary.

(E) Attempt or conspiracy to commit any of the above offenses.

(2) The initial determination of qualifying Federal offenses shall be made not

later than 120 days after the date of the enactment of this Act.

(e) REGULATIONS.—

(1) IN GENERAL.—Except as provided in paragraph (2), this section shall be

carried out under regulations prescribed by the Attorney General.

(2) PROBATION OFFICERS.—The Director of the Administrative Office of the

United States Courts shall make available model procedures for the activities

of probation officers in carrying out this section.

(f) COMMENCEMENT OF COLLECTION.—Collection of DNA samples under subsection (a) shall, subject to the availability of appropriations, commence not later

than the date that is 180 days after the date of the enactment of this Act.

SEC. 4. COLLECTION AND USE OF DNA IDENTIFICATION INFORMATION FROM CERTAIN DISTRICT OF COLUMBIA OFFENDERS.

(a) COLLECTION OF DNA SAMPLES.—

(1) FROM INDIVIDUALS IN CUSTODY.—The Director of the Bureau of Prisons

shall collect a DNA sample from each individual in the custody of the Bureau

of Prisons who is, or has been, convicted of a qualifying District of Columbia

offense (as determined under subsection (d)).

(2) FROM INDIVIDUALS ON RELEASE, PAROLE, OR PROBATION.—The Director

of the Court Services and Offender Supervision Agency for the District of Columbia shall collect a DNA sample from each individual under the supervision

of the Agency who is on supervised release, parole, or probation who is, or has

been, convicted of a qualifying District of Columbia offense (as determined

under subsection (d)).

(3) INDIVIDUALS ALREADY IN CODIS.—For each individual described in paragraph (1) or (2), if the Combined DNA Index System (in this section referred

to as ‘‘CODIS’’) of the Federal Bureau of Investigation contains a DNA analysis

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with respect to that individual, the Director of the Bureau of Prisons or Agency

(as applicable) may (but need not) collect a DNA sample from that individual.

(4) COLLECTION PROCEDURES.—(A) The Director of the Bureau of Prisons or

Agency (as applicable) may use or authorize the use of such means as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample.

(B) The Director of the Bureau of Prisons or Agency, as appropriate, may

enter into agreements with units of State or local government or with private

entities to provide for the collection of the samples described in paragraph (1)

or (2).

(5) CRIMINAL PENALTY.—An individual from whom the collection of a DNA

sample is authorized under this subsection who fails to cooperate in the collection of that sample shall be—

(A) guilty of a class A misdemeanor; and

(B) punished in accordance with title 18, United States Code.

(b) ANALYSIS AND USE OF SAMPLES.—The Director of the Bureau of Prisons or

Agency (as applicable) shall furnish each DNA sample collected under subsection (a)

to the Director of the Federal Bureau of Investigation, who shall carry out a DNA

analysis on each such DNA sample and include the results in CODIS.

(c) DEFINITIONS.—In this section:

(1) The term ‘‘DNA sample’’ means a tissue, fluid, or other bodily sample

of an individual on which a DNA analysis can be carried out.

(2) The term ‘‘DNA analysis’’ means analysis of the deoxyribonucleic acid

(DNA) identification information in a bodily sample.

(d) QUALIFYING DISTRICT OF COLUMBIA OFFENSES.—The Government of the District of Columbia may determine those offenses under the District of Columbia Code

that shall be treated for purposes of this section as qualifying District of Columbia

offenses.

(e) COMMENCEMENT OF COLLECTION.—Collection of DNA samples under subsection (a) shall, subject to the availability of appropriations, commence not later

than the date that is 180 days after the date of the enactment of this Act.

(f) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to the Court Services and Offender Supervision Agency for the District of

Columbia to carry out this section such sums as may be necessary for each of fiscal

years 2001 through 2005.

SEC. 5. COLLECTION AND USE OF DNA IDENTIFICATION INFORMATION FROM CERTAIN OFFENDERS IN THE ARMED FORCES.

(a) IN GENERAL.—(1) Chapter 80 of title 10, United States Code, is amended by

adding at the end the following new section:

‘‘§ 1565. DNA identification information: collection from certain offenders; use

‘‘(a) COLLECTION OF DNA SAMPLES.—(1) The Secretary concerned shall collect

a DNA sample from each member of the armed forces under the Secretary’s jurisdiction who is, or has been, convicted of a qualifying military offense (as determined

under subsection (d)).

‘‘(2) For each member described in paragraph (1), if the Combined DNA Index

System (in this section referred to as ‘CODIS’) of the Federal Bureau of Investigation contains a DNA analysis with respect to that member, or if a DNA sample has

been or is to be collected from that member under section 3(a) of the DNA Analysis

Backlog Elimination Act of 2000, the Secretary concerned may (but need not) collect

a DNA sample from that member.

‘‘(3) The Secretary concerned may enter into agreements with other Federal

agencies, units of State or local government, or private entities to provide for the

collection of samples described in paragraph (1).

‘‘(b) ANALYSIS AND USE OF SAMPLES.—The Secretary concerned shall furnish

each DNA sample collected under subsection (a) to the Secretary of Defense. The

Secretary of Defense shall carry out a DNA analysis on each such DNA sample and

furnish the results of each such analysis to the Director of the Federal Bureau of

Investigation for inclusion in CODIS.

‘‘(c) DEFINITIONS.—In this section:

‘‘(1) The term ‘DNA sample’ means a tissue, fluid, or other bodily sample

of an individual on which a DNA analysis can be carried out.

‘‘(2) The term ‘DNA analysis’ means analysis of the deoxyribonucleic acid

(DNA) identification information in a bodily sample.

‘‘(d) QUALIFYING MILITARY OFFENSES.—(1) Subject to paragraph (2), the Secretary of Defense, in consultation with the Attorney General, shall determine those

felony or sexual offenses under the Uniform Code of Military Justice that shall be

treated for purposes of this section as qualifying military offenses.

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‘‘(2) An offense under the Uniform Code of Military Justice that is comparable

to a qualifying Federal offense (as determined under section 3(d) of the DNA Analysis Backlog Elimination Act of 2000), as determined by the Secretary in consultation with the Attorney General, shall be treated for purposes of this section as a

qualifying military offense.

‘‘(e) EXPUNGEMENT.—(1) The Secretary of Defense shall promptly expunge, from

the index described in subsection (a) of section 210304 of the Violent Crime Control

and Law Enforcement Act of 1994, the DNA analysis of a person included in the

index on the basis of a qualifying military offense if the Secretary receives, for each

conviction of the person of a qualifying offense, a certified copy of a final court order

establishing that such conviction has been overturned.

‘‘(2) For purposes of paragraph (1), the term ‘qualifying offense’ means any of

the following offenses:

‘‘(A) A qualifying Federal offense, as determined under section 3 of the DNA

Analysis Backlog Elimination Act of 2000.

‘‘(B) A qualifying District of Columbia offense, as determined under section

4 of the DNA Analysis Backlog Elimination Act of 2000.

‘‘(C) A qualifying military offense.

‘‘(3) For purposes of paragraph (1), a court order is not ‘final’ if time remains

for an appeal or application for discretionary review with respect to the order.

‘‘(f) REGULATIONS.—This section shall be carried out under regulations prescribed by the Secretary of Defense, in consultation with the Secretary of Transportation and the Attorney General. Those regulations shall apply, to the extent practicable, uniformly throughout the armed forces.’’.

(2) The table of sections at the beginning of such chapter is amended by adding

at the end the following new item:

‘‘1565. DNA identification information: collection from certain offenders; use.’’.

(b) INITIAL DETERMINATION OF QUALIFYING MILITARY OFFENSES.—The initial determination of qualifying military offenses under section 1565(d) of title 10, United

States Code, as added by subsection (a)(1), shall be made not later than 120 days

after the date of the enactment of this Act.

(c) COMMENCEMENT OF COLLECTION.—Collection of DNA samples under section

1565(a) of such title, as added by subsection (a)(1), shall, subject to the availability

of appropriations, commence not later than the date that is 60 days after the date

of the initial determination referred to in subsection (b).

SEC. 6. EXPANSION OF DNA IDENTIFICATION INDEX.

(a) USE OF CERTAIN FUNDS.—Section 811(a)(2) of the Antiterrorism and Effective Death Penalty Act of 1996 (28 U.S.C. 531 note) is amended to read as follows:

‘‘(2) the Director of the Federal Bureau of Investigation shall expand the

combined DNA Identification System (CODIS) to include analyses of DNA samples collected from—

‘‘(A) individuals convicted of a qualifying Federal offense, as determined

under section 3(d) of the DNA Analysis Backlog Elimination Act of 2000;

‘‘(B) individuals convicted of a qualifying District of Columbia offense,

as determined under section 4(d) of the DNA Analysis Backlog Elimination

Act of 2000; and

‘‘(C) members of the Armed Forces convicted of a qualifying military offense, as determined under section 1565(d) of title 10, United States Code.’’.

(b) INDEX TO FACILITATE LAW ENFORCEMENT EXCHANGE OF DNA IDENTIFICATION INFORMATION.—Section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132) is amended—

(1) in subsection (b)(1), by inserting after ‘‘criminal justice agency’’ the following: ‘‘(or the Secretary of Defense in accordance with section 1565 of title 10,

United States Code)’’;

(2) in subsection (b)(2)—

(A) by striking ‘‘, at regular intervals of not to exceed 180 days,’’ and

inserting ‘‘semiannual’’; and

(B) by inserting before the semicolon the following: ‘‘(or prepared by the

Secretary of Defense in accordance with section 1565 of title 10, United

States Code)’’;

(3) in subsection (b)(3), by inserting after ‘‘local criminal justice agencies’’

the following: ‘‘(or the Secretary of Defense in accordance with section 1565 of

title 10, United States Code)’’; and

(4) by adding at the end the following new subsection:

‘‘(d) EXPUNGEMENT OF RECORDS.—(1) The Director of the Federal Bureau of Investigation shall promptly expunge from the index described in subsection (a) the

DNA analysis of a person included in the index on the basis of a qualifying Federal

offense or a qualifying District of Columbia offense (as determined under section 3

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and 4 of the DNA Analysis Backlog Elimination Act of 2000, respectively) if the Director receives, for each conviction of the person of a qualifying offense, a certified

copy of a final court order establishing that such conviction has been overturned.

‘‘(2) For purposes of paragraph (1), the term ‘qualifying offense’ means any of

the following offenses:

‘‘(A) A qualifying Federal offense, as determined under section 3 of the DNA

Analysis Backlog Elimination Act of 2000.

‘‘(B) A qualifying District of Columbia offense, as determined under section

4 of the DNA Analysis Backlog Elimination Act of 2000.

‘‘(C) A qualifying military offense, as determined under section 1565 of title

10, United States Code.

‘‘(3) For purposes of paragraph (1), a court order is not ‘final’ if time remains

for an appeal or application for discretionary review with respect to the order.’’.

SEC. 7. CONDITIONS OF RELEASE.

(a) CONDITIONS OF PROBATION.—Section 3563(a) of title 18, United States Code,

is amended—

(1) in paragraph (7), by striking ‘‘and’’ at the end;

(2) in paragraph (8), by striking the period at the end and inserting ‘‘; and’’;

and

(3) by inserting after paragraph (8) the following:

‘‘(9) that the defendant cooperate in the collection of a DNA sample from

the defendant if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000.’’.

(b) CONDITIONS OF SUPERVISED RELEASE.—Section 3583(d) of title 18, United

States Code, is amended by inserting before ‘‘The court shall also order’’ the following: ‘‘The court shall order, as an explicit condition of supervised release, that

the defendant cooperate in the collection of a DNA sample from the defendant, if

the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000.’’.

(c) CONDITIONS OF PAROLE.—Section 4209 of title 18, United States Code, insofar as such section remains in effect with respect to certain individuals, is amended

by inserting before ‘‘In every case, the Commission shall also impose’’ the following:

‘‘In every case, the Commission shall impose as a condition of parole that the parolee cooperate in the collection of a DNA sample from the parolee, if the collection

of such a sample is authorized pursuant to section 3 or section 4 of the DNA Analysis Backlog Elimination Act of 2000 or section 1565 of title 10.’’.

(d) CONDITIONS OF RELEASE GENERALLY.—If the collection of a DNA sample

from an individual on probation, parole, or supervised release is authorized pursuant to section 3 or 4 of this Act or section 1565 of title 10, United States Code, the

individual shall cooperate in the collection of a DNA sample as a condition of that

probation, parole, or supervised release.

SEC. 8. TECHNICAL AND CONFORMING AMENDMENTS.

(a) DRUG CONTROL AND SYSTEM IMPROVEMENT GRANTS.—Section 503(a)(12)(C)

of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C.

3753(a)(12)(C)) is amended by striking ‘‘, at regular intervals of not to exceed 180

days,’’ and inserting ‘‘semiannual’’.

(b) DNA IDENTIFICATION GRANTS.—Section 2403(3) of title I of the Omnibus

Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796kk–2(3)) is amended by

striking ‘‘, at regular intervals not exceeding 180 days,’’ and inserting ‘‘semiannual’’.

(c) FEDERAL BUREAU OF INVESTIGATION.—Section 210305(a)(1)(A) of the Violent

Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14133(a)(1)(A)) is

amended by striking ‘‘, at regular intervals of not to exceed 180 days,’’ and inserting

‘‘semiannual’’.

SEC. 9. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated to the Attorney General to carry out

this Act (including to reimburse the Federal judiciary for any reasonable costs incurred in implementing such Act, as determined by the Attorney General) such

sums as may be necessary.

SEC. 10. PRIVACY PROTECTION STANDARDS.

(a) IN GENERAL.—Except as provided in subsection (b), any sample collected

under, or any result of any analysis carried out under, section 2, 3, or 4 may be

used only for a purpose specified in such section.

(b) PERMISSIVE USES.—A sample or result described in subsection (a) may be

disclosed under the circumstances under which disclosure of information included

in the Combined DNA Index System is allowed, as specified in subparagraphs (A)

through (D) of section 210304(b)(3) of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132(b)(3)).

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1Public Law No. 103–322.

(c) CRIMINAL PENALTY.—A person who knowingly—

(1) discloses a sample or result described in subsection (a) in any manner

to any person not authorized to receive it; or

(2) obtains, without authorization, a sample or result described in subsection (a),

shall be fined not more than $100,000.

PURPOSE AND SUMMARY

H.R. 4640 would authorize a new program of Federal assistance

to States to enable them to clear their backlogs of DNA samples

which have been collected from convicted offenders or crime scenes

and which the States have been unable to analyze, or to reanalyze

in light of recent developments in DNA identification technology,

because of shortfalls in resources and the failure of available laboratory capacity to keep pace with the growth of the DNA identification system. H.R. 4640 would also fill a gap in the system by

authorizing collection, analysis, and indexing of DNA samples from

persons convicted of Federal crimes, crimes under the laws of the

District of Columbia, or offenses under military law.

BACKGROUND AND NEED FOR THE LEGISLATION

H.R. 4640 addresses two areas of concern: the absence of legal

authority for DNA samples to be collected from persons convicted

of Federal crimes, analyzed, and cataloged into a national database

of convicted offenders; and the increasing backlog of biological samples waiting analysis in the States.

COLLECTION OF DNA SAMPLES FROM CONVICTED OFFENDERS

In the Violent Crime Control and Law Enforcement Act of 1994,1

Congress authorized the FBI to create a national index of DNA

samples taken from convicted offenders, crime scenes and victims

of crime, and unidentified human remains. That portion of the act

also specified the uses to which such samples could be put, and authorized the appropriation of funds to the FBI and to States to assist them in developing DNA testing capabilities.

In response to this authority, the FBI established the Combined

DNA Index System (CODIS), which the FBI had been developing

as a pilot program since the early 1990’s. CODIS allows State and

local forensics laboratories to exchange and compare DNA profiles

electronically in an attempt to link evidence from crime scenes for

which there are no suspects to DNA samples of convicted offenders

on file in the system. Today, CODIS is installed in over 90 laboratories in 41 States and the District of Columbia. There are approximately 445,000 offender samples and 31,000 crime scene samples

classified and stored in CODIS.

All 50 States have enacted statutes requiring convicted offenders

to provide DNA samples for analysis and entry into the CODIS system. The crimes which trigger the requirement to provide a sample

vary from State to State. Samples from Federal offenders are not

included in CODIS (unless they previously committed a State offense for which a sample was taken) because the language of the

1994 act only authorized the creation of the CODIS system, and

not the taking of samples from persons convicted of Federal crimes,

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2Public Law No. 104–132, § 811(a)(2).

3Public Law 105–119, at § 121.

4FBI Laboratory Report to Congress, Implementation Plan for Collection of DNA Samples

from Federal Convicted Offenders Pursuant to P.L. 105–229 (December 1998). Public Law 105–

119, § 121 (the FY 1999 appropriations act for the Justice Department and other agencies) required the Attorney General to submit a report to Congress with an implementation plan for

collecting DNA samples from Federal convicted sex offenders prior to their release. The reference in the title of the report to Public Law 105–229 is in error. 5 Bureau of Justice Statistics, U.S. Department of Justice, Survey of DNA Crime Laboratories,

1998 (February 2000).

crimes under the District of Columbia Code, or offenses under the

Uniform Code of Military Justice (UCMJ). In 1996, Congress

passed the Antiterrorism and Effective Death Penalty Act of 1996

which contained a provision that authorized the Director of the FBI

to ‘‘expand CODIS to include Federal crimes and crimes committed

in the District of Columbia,’’ 2 however, the Department of Justice

later determined that this provision was insufficient to provide it

with the legal authority to collect samples from convicted Federal

offenders. In 1997, Congress passed a bill authorizing appropriations for the Departments of Commerce, State, and Justice, the Judiciary and related agencies and in that bill required the Attorney

General to submit a report to Congress with an implementation

plan for collecting DNA samples from persons convicted of Federal

sexual offenses.3

The FBI submitted this report to Congress in late 1998. In it, the

FBI requested that Congress enact statutory authority to allow the

taking of DNA samples from persons committing Federal crimes of

violence, robbery, and burglary, or similar crimes in the District of

Columbia or while in the military, and authorizing them to be included in CODIS.4

THE BACKLOG OF BIOLOGICAL SAMPLES TO BE ANALYZED IN THE

STATES

The development of DNA identification technology is one of the

most important advances in criminal identification methods in decades. As a direct result of the proven ability of DNA evidence to

solve crime, the 120 public forensic laboratories operating across

country during the 1990’s have been besieged by requests to analyze DNA samples. More than half of them have developed significant testing backlogs that have yet to be cleared. Of the several

hundred thousand DNA samples submitted to these labs during the

past 10 years, the vast majority were taken from convicted felons

pursuant to the State laws that require such samples be taken and

analyzed. But thousands of crimes scene samples also are awaiting

analysis. Even in States where these samples are made a priority,

the lack of existing laboratory capacity to analyze these samples results in a delay in justice being done, both for those accused of the

crime and for the victim of that crime. These backlogs have been

exacerbated in recent years as new developments in DNA analysis

technology has required that many samples, especially those taken

from convicted offenders and cataloged in the CODIS database, be

reanalyzed using new technology.

In a report issued by the Justice Department’s Bureau of Justice

Statistics (BJA),5 as of December 1997, approximately 69% of publicly operated forensic crime labs across the country had at least

6,800 unprocessed DNA cases and an additional 287,000 unprocessed convicted offender DNA samples. The public labs reporting a

10

backlog include the FBI’s crime lab in Washington. In 1997, for example, these labs received about 21,000 cases involving DNA evidence for analysis and processed about 14,000 of those cases. In

that same year, 116,000 convicted offender samples were submitted

for analysis, an increase from 72,000 in 1996. Of these totals, only

45,000 were analyzed in 1997 and 37,000 in 1996.

As a result of these backlogs, killers, rapists, and other dangerous offenders who might be successfully identified through DNA

matching remain at large to engage in further crimes against the

public. Where the limitation period for prosecution expires prior to

such an identification, the delay in utilizing the DNA technology

may permanently bar bringing a criminal to justice. In addition to

these obvious public safety costs, the current inadequacies of the

system also endanger the innocent. Promptly identifying the actual

perpetrator of a crime through DNA matching exonerates any other

persons who might wrongfully be suspected, accused, or convicted

of the crime. Where this cannot be done because of an inability to

analyze and index convicted offender or crime scene samples in a

timely manner, the risks of convicting an innocent person increase.

HOW H.R. 4640 ADDRESSES THESE PROBLEMS

H.R. 4640 will assist States in reducing the backlog of samples

awaiting DNA analysis, by establishing a grant program whereby

the Federal Government would make grants to States to enable

them to conduct DNA analyses of biological samples taken from offenders who are required to provide a sample for DNA analysis and

samples taken from crime scenes and from victims of crime. The

bill authorizes funding for convicted offender sample analysis of

$15 million a year for each of fiscal years 2001 through 2003. This

part of the backlog problem has been partially addressed through

a $15 million appropriation by Congress for fiscal year 2000, which

the National Institute of Justice has administered to assist the

States in reducing their backlogs of convicted offender DNA samples. However, funding at the same level for an additional 3 years

is necessary to complete the elimination of this backlog. It is expected that once the current convicted offender sample backlog is

cleared through the proposed program, State laboratory capacity

will be adequate for the analysis of convicted offender DNA samples that come in thereafter, and further Federal assistance for this

purpose will not be needed.

In addition to extending convicted offender sample backlog assistance for the period needed to complete the elimination of this

backlog, the bill makes an important change in the administration

of the assistance program. Under the fiscal year 2000 program,

only States could be directly provided with backlog reduction funding, though most of the actual analysis of convicted offender DNA

samples is being carried out through outsourcing to private laboratories. The need to deal with the procurement processes of 50 different States has greatly increased the administrative, overhead,

and marketing costs of these private laboratories, resulting in higher charges for sample analysis and considerable inefficiency in the

use of the funds. H.R. 4640 corrects this problem by authorizing

the Department of Justice to issue vouchers to the States, which

will be redeemable at approved private laboratories that will receive direct payment for the sample analysis they carry out for the

11

6 H.R. 2810, the ‘‘Violent Offender DNA Identification Act of 1999’’ introduced by Rep. Kennedy; H.R. 3087, the ‘‘DNA Backlog Elimination Act,’’ introduced by Rep. Weiner; and H.R.

3375, the ‘‘Convicted Offender DNA Index System Support Act,’’ introduced by Rep. Gilman.

States. It is expected that the increased efficiency of this approach

will enable 20 to 30 percent more samples to be analyzed with the

same level of funding.

With respect to crime scene sample backlog reduction, H.R. 4640

authorizes $25 million in fiscal year 2001, $50 million in fiscal year

2002, and $25 million in each of fiscal year 2003 and fiscal year

2004. Addressing the crime scene sample backlog is intrinsically

more expensive because of the high cost of analyzing crime scene

samples. For example, analysis of an individual rape kit typically

costs about $2,000, and analysis of other forensic DNA evidence—

such as DNA analysis of the material found at the scene of a murder—may cost up to several times that amount. The bill provides

a two-pronged response to this backlog problem. Funds authorized

for crime scene sample backlog reduction could be utilized both for

outsourcing to private laboratories, which would receive direct payment for the analysis carried out for the States, and to increase

public laboratory capacity to analyze such samples. The authorization of outsourcing will provide immediate relief for the States in

addressing their crime scene sample backlogs, and will encourage

the commitment of State resources to crime scene sample analysis

by providing concrete illustrations of the utility of DNA matching

in solving murders, sexually violent offenses, and other crimes. The

authorization of assistance for public laboratory capacity expansion

will help the States to develop their own capacity to regularly carry

out DNA analysis and matching in cases which may be solvable by

this means, thereby eliminating the need for Federal assistance in

the long term.

States wishing to receive funding under the program created by

the bill are required to make application to the Attorney General

through the Office of Justice Programs. To qualify for funding, a

State must develop a plan to eliminate its backlog of samples

awaiting DNA analysis.

The bill also authorizes DNA samples to be collected and included into CODIS from offenders convicted of certain Federal offenses, crimes under the District of Columbia Code, and offenses

under the UCMJ. The offenses triggering the sample requirement

are specified in the bill and consist principally of serious violent

crimes and crimes involving sex offenses. The bill also requires that

samples of offenders whose convictions are reversed be removed

from CODIS.

H.R. 4640 is similar to three other bills which have been introduced in the 106th Congress and which were the subject of a hearing in the Subcommittee on Crime on March 23, 2000.6 The sponsors of those bills are original co-sponsors of H.R. 4640.

HEARINGS

The committee’s Subcommittee on Crime held no hearings on

H.R. 4640 but held 1 day of hearings on related bills H.R. 2810,

the ‘‘Violent Offender DNA Identification Act of 1999;’’ H.R. 3087,

the ‘‘DNA Backlog Elimination Act;’’ and H.R. 3375, the ‘‘Convicted

Offender DNA Index System Support Act;’’ on March 23, 2000. TesVerDate 11-MAY-2000 05:21 Sep 27, 2000 Jkt 079006 PO 00000 Frm 00011 Fmt 6659 Sfmt 6601 E:\PICKUP\HR900P1.XXX pfrm08 PsN: HR900P1
12

timony was received from 10 witnesses, representing 6 organizations, with additional material submitted by 1 other individual.

COMMITTEE CONSIDERATION

On June 15, 2000, the Subcommittee on Crime met in open session and ordered favorably reported the bill H.R. 4640, by a voice

vote, a quorum being present. On July 26, 2000, the committee met

in open session and ordered favorably reported the bill H.R. 4640

with an amendment by a by voice vote, a quorum being present.

VOTE OF THE COMMITTEE

No recorded votes were taken on the bill H.R. 4640 during committee consideration.

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of rule XIII of the Rules of the

House of Representatives, the committee reports that the findings

and recommendations of the committee, based on oversight activities under clause 2(b)(1) of rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report.

COMMITTEE ON GOVERNMENT REFORM FINDINGS

No findings or recommendations of the Committee on Government Reform were received as referred to in clause 3(c)(4) of rule

XIII of the Rules of the House of Representatives.

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of House Rule XIII is inapplicable because this legislation does not provide new budgetary authority or increased tax

expenditures.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of rule XIII of the Rules of the

House of Representatives, the committee sets forth, with respect to

the bill, H.R. 4640, the following estimate and comparison prepared

by the Director of the Congressional Budget Office under section

402 of the Congressional Budget Act of 1974:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, September 19, 2000.

Hon. HENRY J. HYDE, Chairman,

Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4640, the DNA Analysis

Backlog Elimination Act of 2000.

If you wish further details on this estimate, we will be pleased

to provide them. The CBO staff contacts are Mark Grabowicz (for

federal costs), who can be reached at 226–2860, Shelley Finlayson

(for the impact on state, local, and tribal governments), who can be

13

reached at 225–3220, and Tim Vandenberg (for the impact on the

private sector), who can be reached at 226–2940.

Sincerely,

DAN L. CRIPPEN, Director.

Enclosure

cc: Honorable John Conyers Jr.

Ranking Democratic Member

H.R. 4640—DNA Analysis Backlog Elimination Act of 2000.

SUMMARY

H.R. 4640 would authorize the appropriation of $170 million over

fiscal years 2001 through 2004 for grants to states to increase their

capability to perform DNA analyses. The bill would direct the Department of Justice, the Judiciary, and the Department of Defense

(DoD) to collect and analyze DNA samples from persons convicted

of certain crimes. H.R. 4640 also would establish new federal

crimes for refusing to provide DNA samples and for the unauthorized use of DNA samples.

Assuming appropriation of the necessary amounts, CBO estimates that implementing H.R. 4640 would cost about $165 million

over the 2001–2005 period. This legislation could affect direct

spending and receipts, so pay-as-you-go procedures would apply;

however, CBO estimates that any such effects would be less than

$500,000 annually.

The bill contains no intergovernmental mandates as defined in

the Unfunded Mandates Reform Act (UMRA) and would benefit

states by enabling them to obtain grant funds. H.R. 4640 would impose a new private-sector mandate, as defined by UMRA, on persons who have been convicted of certain federal offenses. CBO estimates that the cost of the mandate would fall well below the

threshold established by UMRA for private-sector mandates ($109

million in 2000, adjusted annually for inflation).

ESTIMATED COST TO THE FEDERAL GOVERNMENT

The estimated budgetary impact of H.R. 4640 is shown in the following table. The costs of this legislation fall within budget functions 050 (national defense) and 750 (administration of justice).

14

By fiscal year, in millions of dollars

2001 2002 2003 2004 2005

CHANGES IN SPENDING SUBJECT TO APPROPRIATION*

State Grants for DNA Analysis

Authorization Level 40 65 40 25 0

Estimated Outlays 9 30 48 45 27

Costs to the Department of Justice

Estimated Authorization Level 3 1 1 1 1

Estimated Outlays 2 2 1 1 1

Costs to the Judicial Branch and DoD

Estimated Authorization Level 1 **   ** 

Estimated Outlays 1 **   ** 

Total Costs

Estimated Authorization Level 44 66 41 26 1

Estimated Outlays 12 32 49 46 28

*In addition to the discretionary costs, enacting H.R. 4640 could affect direct spending and receipts, but CBO estimates

that any such effects would be less than $500,000 annually **Less than $500,000.

BASIS OF ESTIMATE

For this estimate, CBO assumes that H.R. 4640 will be enacted

near the beginning of fiscal year 2001, and that the necessary

amounts will be appropriated for each year. Outlay estimates are

based on historical information for similar programs.

Spending Subject to Appropriation

State Grants for DNA Analysis. CBO assumes that the bill’s specified authorization levels will be appropriated for each fiscal year

and that spending will follow the historical rates of similar grant

programs.

Costs to the Department of Justice. H.R. 4640 would direct the

Bureau of Prisons (BoP) to collect a DNA sample from each person

in federal custody who has been convicted of certain felonies or sexual offenses. Based on information from the Department of Justice,

CBO estimates that there are roughly 6,000 such persons now and

that there would be another 2,000 persons incarcerated in fiscal

year 2001 and in each year thereafter. The BoP estimates that it

would cost about $50 to collect DNA samples for each of these individuals, so collection costs would total less than $500,000 in each

year.

The bill would direct the Court Services and Offender Supervision Agency for the District of Columbia (CSOSA) to collect a

DNA sample from each person under the supervision of that agency who has been convicted of certain offenses. For this estimate,

CBO assumes that these crimes will include the same felonies and

sexual offenses that apply to BoP. CSOSA estimates that there are

about 5,000 such individuals under its supervision, so collection

costs would total less than $500,000 in fiscal year 2001.

H.R. 4640 would direct the Federal Bureau of Investigation (FBI)

to perform analyses of most of the DNA samples collected under

the bill’s provisions. Based on information from the FBI, CBO estimates that it would cost about $3 million in fiscal year 2001 and

about $500,000 in each year thereafter, subject to the availability

of appropriated funds, for the necessary equipment and personnel

to carry out these analyses.

15

Costs to the Judicial Branch. The bill would direct the Judiciary

to collect a DNA sample from each person under federally supervised release who has been convicted of certain felonies or sexual

offenses. The Administrative Office of the United States Courts estimates that there are about 1,500 such individuals now and that

there would be a few hundred more offenders under federal supervision in fiscal year 2001 and in each year thereafter. CBO estimates that DNA collection costs for these individuals would total

less than $500,000 in each year.

Costs to DoD. The bill would direct DoD to collect a DNA sample

from members of the armed forces who have been convicted of certain felonies or sexual offenses and to perform an analysis of these

samples. Because of the small number of military personnel affected, CBO estimates that this would cost less than $500,000 in

each year, assuming appropriation of the necessary amounts.

Direct Spending and Receipts

Under the provisions of H.R. 4640, specific individuals who

refuse to allow DNA samples to be taken, or misuse information

concerning DNA samples could be subject to criminal fines. The

federal government might collect additional fines if the bill is enacted. Collections of criminal fines are recorded in the budget as

governmental receipts (revenues), which are deposited in the Crime

Victims Fund and spent in subsequent years. CBO expects that

any additional receipts and direct spending would be less than

$500,000 each year.

PAY-AS-YOU-GO CONSIDERATIONS

The Balanced Budget and Emergency Deficit Control Act sets up

pay-as-you-go procedures for legislation affecting direct spending or

receipts. CBO estimates that enacting H.R. 4640 would change direct spending and receipts by less than $500,000 each year.

ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS

H.R. 4640 contains no intergovernmental mandates as defined in

UMRA and would benefit states by enabling them to obtain federal

grants to analyze certain DNA samples for inclusion in the Combined DNA Index System (CODIS). Those funds could also be used

to increase the capacity of laboratories owned by state and local

governments to conduct such analyses. States would have to meet

certain conditions in order to receive grants. The bill also would

benefit state and local law enforcement entities because the expansion of the CODIS database would enhance their ability to use

DNA information for law enforcement purposes.

ESTIMATED IMPACT ON THE PRIVATE SECTOR

H.R. 4640 would impose a new private-sector mandate, as defined by UMRA, on persons who have been convicted of certain federal offenses. The bill would require such persons to submit DNA

samples to federal authorities upon demand. The bill would authorize the Director of the Bureau of Prisons and probation officers responsible under federal law for the supervision of individuals on

probation, parole, or supervised release, to collect DNA samples

from individuals convicted of murder, offenses relating to sexual

16

abuse, kidnaping, burglary, and certain military offenses. Individuals who fail to cooperate with the collection of samples would be

guilty of a misdemeanor and subject to criminal punishment.

The collection of DNA samples would impose negligible monetary

costs on prisoners and individuals on parole, probation, or supervised release. CBO estimates, therefore, that the cost of the mandate would fall well below the threshold established by UMRA for

private-sector mandates ($109 million in 2000, adjusted annually

for inflation).

ESTIMATE PREPARED BY:

Federal Costs: Mark Grabowicz (226–2860)

Impact on State, Local, and Tribal Governments: Shelley Finlayson

(225–3220)

Impact on the Private Sector: Tim VandenBerg (226–2940)

ESTIMATE APPROVED BY:

Peter H. Fontaine

Deputy Assistant Director for Budget Analysis

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of rule XIII of the Rules of the House

of Representatives, the committee finds the authority for this legislation in Article I, sections 8, clause 3, 14, 17, and 18 of the Constitution.

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

Section 1. Short Title

Section 1 of the bill states the short title of the bill as the ‘‘DNA

Analysis Backlog Elimination Act of 2000.’’

Section 2. Authorization of Grants

Section 2 of the bill establishes a $170 million grant program

whereby the Attorney General would make grants to States to assist them in reducing the backlog of samples awaiting DNA analysis. The grant funds may be used to conduct DNA analyses of biological samples or to increase the capacity of laboratories owned by

States or by units of local government within the State to carry out

DNA analysis of such samples. The biological samples to be analyzed using funds granted under H.R. 4640 are samples taken from

offenders convicted of specific offenses, determined by each State,

that require offenders to provide a sample, and samples taken from

crime scenes or from victims of crime. States wishing to receive

funding under the program created by the bill are required to make

application to the Attorney General through the Justice Department’s Office of Justice Programs.

Each grant application must provide assurances that the State

has implemented or will implement a comprehensive plan for the

expeditious DNA analysis of all of the samples described above that

were collected prior to the date of enactment of the bill. This provision is to ensure that the funds made available to States under the

bill are used to reduce the backlog of samples awaiting analysis

and the plan must detail how the State plans to accomplish this.

17

In its application, a State must certify that it has determined (by

statute, rule, or regulation) those offenses that require convicted offenders to provide a sample for DNA analysis. The bill does not

specify what offenses must trigger the requirement to provide a

sample, rather, each State is left to make that determination for

itself. States must also certify that each DNA analysis carried out

under its comprehensive plan (regardless if that analysis is performed using funds granted under H.R. 4640) shall be maintained

pursuant to the privacy requirements of the Violent Crime Control

and Law Enforcement Act of 1994. Finally, a State must also discuss in its application how it proposes to allocate funds received

under the program with respect to DNA analysis of the two categories of biological samples. The bill also authorizes the Attorney

General to require States to include other information in applications for these funds.

The bill requires that States which propose to use funds under

the program to conduct DNA analysis of samples taken from crime

scenes or to build laboratory capacity to conduct DNA samples

must use those funds to conduct analysis of samples, or build the

capacity to conduct samples, from crimes where there are no suspects. Currently, forensic laboratories generally must prioritize for

DNA analysis cases which are scheduled for trial, and other cases

involving known suspects in which DNA analysis must be carried

out for such purposes as making an arrest. Solving cases without

known suspects often stands at the end of the line. As a result of

these competing priorities and limited laboratory capacity, the

unique potential of the DNA identification system to solve no-suspect cases through matching to convicted offender databases and

‘‘crime scene to crime scene’’ matches is largely unutilized. The targeting of the bill’s new program on no-suspect casework, and on expansion of public laboratory capacity for such casework, will correct

this critical shortfall in the existing system. Accordingly, when a

State proposes to use grant funds to conduct samples, this provision should be interpreted to require the State to dedicate a significant portion of the funds to analyzing samples from crimes where

there are no suspects. If the State proposes to use the funds to

build capacity, the State must then use a significant portion of that

additional capacity to analyze samples taken from crimes where

there are no suspects.

States must not use grants funds under this program to supplant

State funding for DNA analysis but must instead use the Federal

funds to increase the amount of funds that would be allocated to

this issue. States must make annual reports to the Attorney General as to the use of funds received under this program and must

keep records, which the Attorney General may review, documenting the use of any funds received under this program. The bill

also requires the Attorney General to make annual reports to Congress concerning the grants made under the bill.

With respect to grants made to conduct DNA analysis of samples,

the bill authorizes the Attorney General to make these grants in

the form of a voucher for laboratory services which could be redeemed at a laboratory operated by a private entity approved by

the Attorney General. The Attorney General would make payment

to the laboratory for the analysis it has conducted in exchange for

the vouchers.

18

7 Approximately 430 persons convicted of offenses under the UCMJ are incarcerated in a BOP

facility rather than a military disciplinary facility pursuant to a memorandum of understanding

between the BOP and the Department of the Army.

The bill authorizes the appropriation of grant funds for two broad purposes. The bill authorizes the appropriation of up to $15

million per year for the next three fiscal years to be used for grants

to reduce the backlog of samples taken from convicted offenders.

Second, the bill authorizes the appropriation of up to $125 million

over the next four fiscal years to be used for grants to reduce the

backlog of crime scene samples waiting analysis and to build the

capacity of States to conduct DNA analysis in the future.

With respect to crime scene samples, the provision is designed to

meet the dual needs of immediate analysis of unknown suspect

casework through outsourcing, and capacity building within the

public laboratories. The committee expects that most of the grants

made by the Attorney General for this purpose in the first year of

the program will be directed toward outsourcing backlogged crime

scene samples to private laboratories for analysis, since States will

need time to develop plans to increase public laboratory capacity,

including planning to hire and train additional staff and procure of

additional space and equipment. The larger authorization in the

second year of the program is designed to enable the Attorney General to fund outsourcing at a level comparable to the first year—

thereby forestalling the development of a new backlog—while also

providing adequate funding for States to begin implementing their

public laboratory capacity expansion programs. It is expected that

in the final 2 years of the program the Attorney General will make

grants directed toward building public laboratory capacity and diminishing reliance on outsourcing. The intended long-term effect of

the program is the inclusion of no-suspect casework as a routine

part of the caseload of public laboratories.

Section 3. Collection and Use of DNA Identification Information

from Certain Federal Offenders.

Section 3 of the bill directs the Director of the Federal Bureau

of Prisons (BOP) to collect a sample from each person in her custody who has been convicted of a ‘‘qualifying Federal offense’’ or a

‘‘qualifying military offense.’’ 7 That section also requires the various Federal probation offices throughout the country to also collect

samples from persons on parole or under supervised release who

have been convicted of a qualifying Federal offense or a qualifying

military offense. The committee understands that in most cases,

probation officers will not actually collect samples from offenders

but rather, will make arrangements with laboratories operated by

the Federal Government, a State or unit of local government, or a

private entity to collect these samples and then require offenders

to report to a particular laboratory to provide a sample.

Biological samples collected under this section of the bill are to

be furnished to the Director of the Federal Bureau of Investigation

who is to perform a DNA analysis of each sample and include the

results in the Combined DNA Index System (CODIS) maintained

by the FBI. In order to prevent duplication of effort, if the DNA

analysis of a sample taken from an offender is on file in CODIS at

the time the offender becomes subject to the custody of the Bureau

of Prisons or a probation office, no new sample is required to be

19

taken from that offender, however, a new sample may be taken if

the Director of the BOP or the probation office determines that it

is appropriate to do so.

The term ‘‘qualifying Federal offense’’ is defined in the bill to include murder; voluntary manslaughter; other homicide offenses; offenses relating to sexual abuse, sexual exploitation or other abuse

of children, and transportation for illegal sexual activity; kidnaping; burglary; and any attempt or conspiracy to commit those

crimes. Because some of these terms are not used in the United

States Code to define an offense, the bill requires the Attorney

General to determine which specific Federal offenses fall within the

definition of qualifying Federal offense. The Attorney General is required to make this determination within 120 days after enactment

of the bill. The Attorney General may not include offenses other

than those described in words by general category in the bill and

must include those specific offenses described in the bill by section

number reference to title 18 of the United States Code. Some offenses within this definition are described both by words and by

reference to a section number of title 18 of the United States Code,

and in such case the Attorney General may not add additional offenses to the definition of ‘‘qualifying Federal offense’’ with respect

to those terms.

The bill makes the refusal to give a sample required under the

bill a Federal misdemeanor offense. The bill also authorizes the Director of the Bureau of Prisons and the probation office responsible

for the supervision of offenders of parole or supervised released to

use reasonable means to detain, restrain, and collect samples from

person who refuse to voluntarily give them. Each are also authorized to enter into agreements with units of State or local government or with private entities to provide for the collection of the

samples described in this section of the bill.

With respect to Executive Branch agencies affected by this section, the Attorney General is required to promulgate regulations to

implement the section. The Director of the Administrative Office of

the United States Courts is required to make available model procedures to be used by probation offices in carrying out this section.

Section 4. Collection and Use of DNA Identification Information

from Certain District of Columbia Offenders.

Section 4 of the bill directs the Director of the Federal Bureau

of Prisons to collect a sample from each person in her custody who

has been convicted of a ‘‘qualifying District of Columbia offense.’’

Pursuant to the National Capital Revitalization and Self-Government Improvement Act of 1997, many persons convicted of felony

offenses under the laws of the District of Columbia are currently

incarcerated in BOP facilities. As of 2001, all such felons will be

incarcerated in a facility under the control of the BOP. The bill also

requires the Director of Court Services and Offender Supervision

Agency for the District of Columbia (CSOSA) to collect samples

from persons on supervised release, parole, or probation who have

been convicted of such an offense. Persons convicted of offenses

under the District of Columbia code and who are sentenced to or

granted supervised release, parole, or probation are under the supervision of the Director or CSOSA. Samples collected under this

section are to be furnished to the Director of the Federal Bureau

20

8The Secretary of the Treasury has operational control of the Coast Guard during peacetime.

of Investigation who is to perform a DNA analysis of each sample

and include the results in the CODIS system.

The government of the District of Columbia is given the responsibility to determine which offenses under the District of Columbia

Code are to be ‘‘qualifying District of Columbia offenses.’’ In this regard, the District of Columbia is given the same discretion currently exercised by the 50 States, each of which has made a determination under its State law as to which offenses trigger the requirement to provide a DNA sample that will be included in

CODIS.

This section of the bill makes the refusal to give a sample required under the bill a Federal misdemeanor offense. The bill also

authorizes the Director of the BOP and the Director of CSOSA to

use reasonable means to detain, restrain, and collect samples from

persons who refuse to voluntarily give them. Each are also authorized to enter into agreements with units of State or local government or with private entities to provide for the collection of the

samples described in this section of the bill.

Section 5. Collection and Use of DNA Identification Information

from Certain Offenders in the Armed Forces.

Section 5 of the bill enacts new section 1565 of title 10 of the

United States Code which directs the Secretaries of the Army,

Navy, Air Force, and the Treasury 8 (the ‘‘Service Secretaries’’) to

collect a sample from each member of the Armed Forces under the

respective Service Secretary’s jurisdiction who has been convicted

of a ‘‘qualifying military offense.’’ Samples collected are to be furnished to the Secretary of Defense who is to perform a DNA analysis of each sample and furnish the results of such analysis to the

Director of the Federal Bureau of Investigation. The FBI Director

is to include the results in the CODIS system. The Service Secretaries may, but are not required, to take samples from military

members under his or her jurisdiction for whom a sample is already on file in CODIS at the time they are convicted of a qualifying military offense.

The term ‘‘qualifying military offense’’ is defined in the bill as

any of those offenses under the Uniform Code of Military Justice

(UCMJ) that are equivalent to the offenses defined as a ‘‘qualifying

Federal offense’’ in section 3 of the bill. The Secretary of Defense,

in consultation with the Attorney General, is required to determine

which felony or sexual offenses under the UCMJ fall within this

definition. The committee’s use of the phrase ‘‘felony or sexual offense’’ is intended to allow misdemeanor sexual offense to be included within the definition of qualifying military offense if the

Secretary so determines. Notwithstanding the discretion given the

Secretary in the bill, however, the bill requires that the Secretary

include in his determination of the military offenses that fall within this definition all such offenses that are comparable to the offenses defined as ‘‘qualifying Federal offenses’’ in section 3 of the

bill. This determination is to be made within 120 days of the enactment of the bill. Collection of samples under new section 1565 is

to commence within 60 days after the date of this determination.

21

The bill authorizes the Service Secretaries to enter into agreements with other Federal agencies, units of State or local government, or private entities to provide for the collection of the samples

requires to be collection by the bill.

The bill requires the Secretary of Defense to promptly expunge

from CODIS the DNA analysis of a person included in CODIS on

the basis of a qualifying military offense if the Secretary receives

a certified copy of a final order of a court evidencing that each conviction for which that person is required to provide a sample under

State or Federal law has been reversed. The committee points out

that the bill excuses the Service Secretaries from obtaining a DNA

sample from offenders for whom a DNA analysis already exists in

CODIS, and also excuses other persons or agencies charged with

collecting DNA samples (e.g., the Director of the BOP) from collecting such samples from persons for whom a DNA analysis is contained in CODIS. In order to ensure that DNA analysis for persons

convicted of qualifying offenses are not expunged from CODIS inappropriately, however, the bill requires that before the Secretary

expunges a sample placed into CODIS on the basis of a qualifying

military offense, the Secretary must also determine whether the offender in question has been convicted of any other offense which

would be qualifying offense under H.R. 4640. If so, he may not remove the DNA sample of that offender from CODIS, notwithstanding the fact that the person’s qualifying military offense may

have been overturned, unless the Secretary also is provided with

a certified copy of a final order establishing that all other qualifying convictions also have been overturned.

The Secretary of Defense, in consultation with the Secretary of

the Treasury, is required to promulgate regulations to carry out

this section of the bill within the Armed Forces.

Section 6. Expansion of DNA Identification Index.

This section of the bill amends the Antiterrorism and Effective

Death Penalty Act of 1996, to provide the FBI Director with the authority to include in CODIS all DNA samples taken from Federal

offenders, persons convicted of crimes under the District of Columbia Code, and persons who are convicted of offenses under the Uniform Code of Military Justice. Section 6 also requires the FBI Director to promptly expunge from CODIS the DNA analysis of a

sample taken from a Federal, District of Columbia, or military offender if the Director receives a certified copy of a final order of a

court evidencing that each conviction for which that person is required to provide a sample under State or Federal law has been reversed.

The bill requires the FBI Director to promptly expunge from

CODIS the DNA analysis of a person included in CODIS on the

basis of a qualifying offense if the Director receives a certified copy

of a final order of a court evidencing that each conviction for which

that person is required to provide a sample under State or Federal

law has been reversed. For the purposes of this provision, the term

‘‘qualifying offense’’ refers to a qualifying Federal offense, a qualifying District of Columbia Offense, and a qualifying military ofVerDate 11-MAY-2000 05:21 Sep 27, 2000 Jkt 079006 PO 00000 Frm 00021 Fmt 6659 Sfmt 6601 E:\PICKUP\HR900P1.XXX pfrm08 PsN: HR900P1
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9 In most cases, DNA samples from persons convicted of a qualifying military offense will have

been placed in CODIS by the Secretary of Defense and, when appropriate, would be expunged

by him. In some cases, such as when military offenders are incarcerated in a BOP facility, the

Director of the BOP or a probation office will have taken the DNA sample from the offenders

and the Director of the FBI will have analyzed it and placed it in CODIS. In that circumstance,

the FBI Director will be charged with expunging it when the conditions for expungement described in the bill are satisfied.

fense.9 As discussed above, the bill excuses certain persons charged

with collecting DNA samples from offenders (e.g., the Director of

the BOP, the Director of CSOSA) from obtaining a DNA sample

from an offender for whom a DNA analysis already exists in

CODIS. Therefore, in order to ensure that DNA analysis for persons convicted of qualifying offenses are not expunged from CODIS

inappropriately, the bill requires that before the Director expunges

a sample placed into CODIS on the basis of a qualifying military

offense, he must also determine whether the offender in question

has been convicted of any other offense which would be qualifying

offense under H.R. 4640. If so, he may not remove the DNA sample

of that offender from CODIS, notwithstanding the fact that the

particular qualifying offense for which the DNA sample on file in

CODIS was taken may have been overturned.

While the bill requires the prompt expungement of a DNA sample with the standards for expungement have been met, this provision does not require that any expungement protocol be included

in the operating software of CODIS. The committee understands

and is satisfied that the record of a sample to be expunged from

CODIS will be removed by FBI information systems personnel as

soon as practical after the Director has made the determination required by the bill.

Subsection (b) inserts references to the Secretary of Defense in

provisions of 42 U.S.C. § 14132 relating to participation in the DNA

identification system by ‘‘criminal justice agencies,’’ to avoid any

possible inconsistency with the provisions of section 5 of the bill relating to participation in the system by the Department of Defense.

Subsection (b) also makes a technical correction to 42 U.S.C.

§ 14132(b)(2), so that it requires ‘‘semiannual’’ proficiency testing

for DNA laboratories and analysts, rather than proficiency testing

‘‘at regular intervals of not to exceed 180 days.’’

Section 7. Conditions of Release.

Section 7 of the bill amends section 3563 of title 18 of the United

States Code to require Federal courts to order, as a condition of

any imposed term of probation, that defendants cooperate in the

collection of DNA samples authorized under the bill. It also amends

section 3583 of title 18, United States Code, to require Federal

courts to order, as a condition of any imposed term of supervised

release, that defendants cooperate in the collection of DNA samples

authorized under the bill. Finally, this section of the bill amends

section 4209 of title 18, United States Code, to require the United

States Parole Commission to order, as a condition of any imposed

term of parole, that paroled offenders cooperate in the collection of

DNA samples authorized under the bill.

Section 8. Technical and Conforming Amendments.

Section 8 makes technical and conforming amendments in other

laws that are required due to the changes made by the bill. SpecifiVerDate 11-MAY-2000 05:21 Sep 27, 2000 Jkt 079006 PO 00000 Frm 00022 Fmt 6659 Sfmt 6601 E:\PICKUP\HR900P1.XXX pfrm08 PsN: HR900P1
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cally, this section amends several existing provisions to require

‘‘semiannual’’ proficiency testing of DNA laboratories and analysts,

rather than proficiency testing at regular intervals which do not

exceed 180 days.

Section 9 Authorization of Appropriations.

Section 9 authorizes the appropriation to the Attorney General

of such funds as are necessary to carry out the bill. From these

funds, the Attorney General may reimburse the several Federal

probation offices for their costs in complying with the requirements

imposed on them under the bill.

Section 10. Privacy Protection Standards.

Section 10 prohibits the use of samples taken from Federal offenders, District of Columbia offenders, and persons convicted of offenses under the UCMJ or the results of any analyses on those

samples for any purpose other than those described in the bill (i.e.,

principally for the purpose of including the analyses of those samples in CODIS). This section authorizes the disclosure of those

samples or the results of any analysis carried out on them for any

of the purposes described in the Violent Crime Control and Law

Enforcement Act of 1994 with respect to samples taken from State

offenders which are included in CODIS. Section 10 of the bill provides for the imposition of a criminal penalty on any person who

discloses a sample or the result of any analysis on it to any person

not authorized to receive it or who obtains, without authorization,

a sample or result described in that section.

AGENCY VIEWS

DEPARTMENT OF JUSTICE, Washington, DC, July 21, 2000.

Hon. HENRY J. HYDE, Chairman,

Committee on the Judiciary,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: This letter presents the views of the Department of Justice and the Administration concerning H.R. 4640,

the ‘‘DNA Analysis Backlog Elimination Act of 2000’’. The Department of Justice strongly supports the objectives of this legislation,

but recommends certain modifications as discussed in this letter.

We understand that the bill’s sponsor is preparing a substitute

amendment, which we hope will incorporate our recommendations,

discussed below. In brief, our principal recommendations are as follows:

1. Eliminating the backlog of convicted offender DNA samples. H.R. 4640 addresses a critical impediment to the effective operation

of the DNA identification system—a backlog of hundreds of thousands of DNA samples that states have collected from convicted offenders, but have been unable to analyze because of inadequate

laboratory capacity. The Department of Justice, through the National Institute of Justice, is currently administering a program of

assistance to the states to clear this backlog pursuant to a $15 million FY2000 appropriation. Since this program is already being carried out, relatively simple statutory provisions authorizing the continuation and completion of the program would be adequate. AtVerDate 11-MAY-2000 05:21 Sep 27, 2000 Jkt 079006 PO 00000 Frm 00023 Fmt 6659 Sfmt 6601 E:\PICKUP\HR900P1.XXX pfrm08 PsN: HR900P1
24

tachment A of this letter includes suggested provisions for that

purpose. It is important that the program include adequate funding

to permit the prompt elimination of this backlog, as the Administration has proposed in its budget requests. It is also important

that the statutory provisions for the program permit direct grants

to the private laboratories which analyze DNA samples for the

states, an approach that will permit 20 to 30% more samples to be

analyzed with the same funding.

2. Eliminating the backlog of forensic (‘‘crime scene’’) DNA samples. H.R. 4640 also addresses a second critical backlog problem—

an enormous volume of forensic (‘‘crime scene’’) evidence which has

not been subjected to DNA testing. For example, a recent survey

estimated that there are 180,000 unanalyzed rape kits sitting in

evidence storage lockers across the country. An effective forensic

sample backlog reduction program should incorporate two key elements: (1) immediate assistance to the states for analysis of backlogged forensic samples through outsourcing to private laboratories,

and (2) concurrent assistance to state laboratories to increase their

forensic sample analysis capacity, thereby eliminating the need for

outsourcing and federal assistance in the long term. Suitable provisions for such a program are included in Attachment B to this letter.

3. Federal offender sample collection and systemic amendments. Existing federal law authorizes the inclusion of persons convicted

of federal crimes in the national DNA identification index, with no

restrictions on the categories of offenders who may be so included.

See § 811(a)(2) of the Antiterrorism and Effective Death Penalty

Act of 1996. Provisions in H.R. 4640 seek to implement this reform

by authorizing DNA sample collection and indexing for certain federal offenders. The bill’s provisions, however, would radically restrict the categories of federal offenders who could be included by

generally confining sample collection and indexing to offenders convicted of sex offenses, certain homicides, or kidnapping.

This retreat from the approach of existing federal law would

leave some crimes unsolved and could in some cases endanger the

innocent. The experience of state DNA systems is instructive:

• Virginia collects DNA samples from all convicted felons. Empirical findings indicate that about 40% of the successful

DNA identifications in sex offense cases in Virginia could not

have been made if the state had only collected DNA samples

from persons convicted of violent or sexual offenses.

• Florida has been collecting DNA samples from persons convicted of sex offenses, murder, aggravated battery, home invasion robbery, and carjacking. Florida recently enacted legislation adding burglary as a basis for DNA sample collection, in light of a finding that 52% of offenders linked to

crimes (in most cases sexual assaults or homicides) through

DNA matching had burglary convictions in their criminal

histories.

• In New York, legislation took effect in December, 1999,

which required all convicted violent felons and a number of

nonviolent felons (approximately 65% of all offenders) to submit DNA samples, thus increasing tenfold the number of

DNA samples in the state’s DNA databank. The governor

25

has submitted legislation to the New York legislature which

would further expand the DNA databank to require that all

felony and misdemeanor offenders submit a DNA sample

upon conviction.

In light of the fundamental importance of adequate sample collection and indexing to the efficacy of the DNA identification system,

we strongly recommend against statutory restrictions on the categories of convicted federal offenders from whom DNA samples can

be collected.

In contrast to several earlier legislative proposals, H.R. 4640 also

does not authorize sample collection and indexing for juveniles adjudicated delinquent in federal proceedings, and does not permit

states to include information on adjudicated delinquents in the national DNA identification index. However, about half of the states

collect samples from adjudicated delinquents and include the DNA

profiles in their own databases. There is no reason these states

should be barred from including the same information in the national index.

It should be noted that the existing legal rules for the DNA identification system generally ensure that DNA samples and indexed

information will be used solely for law enforcement identification

purposes. Moreover, the DNA profiles maintained in the index do

no more than provide a means of identifying an offender in much

the same way that fingerprint information identifies a person. They

do not reveal any of the personal traits or characteristics of an offender. Since all information in the DNA identification index—

whether it relates to adult offenders or juveniles—is subject to

strict confidentiality rules and protections, concerns about safeguarding the privacy of criminal offenders and delinquents do not

justify a restrictive approach to DNA sample collection and indexing.

We have previously transmitted to Congress suggested statutory

language to implement the inclusion of federal, military, and District of Columbia offenders in the DNA identification index, and to

allow information relating to juveniles. Language which fully reflects our recommendations appears in Attachment C to this letter.

The remainder of this letter provides a more detailed explanation

of our recommendations. We first provide general background concerning the DNA identification system and how DNA matching is

used to solve crimes. The letter thereafter addresses the specific

provisions of H.R. 4640 affecting the reduction of the convicted offender sample backlog, the reduction of the forensic (‘‘crime scene’’)

sample backlog, and incorporation of federal offenders and juveniles into the DNA identification system. We have previously addressed these issues in testimony before the Subcommittee on

Crime, which can be consulted for further discussion. See Statement of David Boyd, Deputy Director, Office of Science and Technology, National Institute of Justice before the House Judiciary

Subcommittee on Crime concerning Speeding DNA Evidence Processing (March 23, 2000) (hereafter, ‘‘DOJ–NIJ Testimony’’); Statement of Dr. Dwight E. Adams, Deputy Assistant Director, Forensic

Analysis Branch, Federal Bureau of Investigation before the House

Judiciary Subcommittee on Crime (March 23, 2000) (hereafter,

‘‘DOJ–FBI Testimony’’).

26

1 ‘‘Rape kit’’ refers to a standardized equipment package and protocol for taking physical samples from victims of sexual assaults, in a form suitable for the development of evidence useful

in criminal investigation or prosecution.

I. THE DNA IDENTIFICATION SYSTEM

The emergence of DNA identification technology is one of the

most significant advances in criminal identification methods since

the advent of fingerprinting. Recognizing the promise and importance of this new technology, legislatures and administrators at the

federal, state, and local levels have been developing the DNA identification system since the late 1980’s.

Toward the end of the 1980’s, the Laboratory Division of the FBI

convened a group of federal, state, and local forensic scientists to

establish guidelines for the use of forensic DNA analysis in laboratories. This group developed guidelines which formed the basis for

the existing national quality assurance standards and proposed the

creation of a national DNA database for the storage and exchange

of DNA profiles. This led to the development of the Combined DNA

Index (or Identification) System, commonly referred to as ‘‘CODIS.’’

The CODIS program provides software that enables federal, state,

and local laboratories to store and compare DNA profiles electronically and thereby link serial crimes to each other and identify suspects by matching DNA from crime scenes to convicted offenders.

Congress provided a statutory basis for the DNA identification

system in subtitle C of title XXI of the Violent Crime Control and

Law Enforcement Act of 1994. The federal legislation in this area

has: (1) created a DNA Advisory Board to recommend quality assurance standards to the FBI Director, (2) established a national

DNA identification index, containing DNA profiles from convicted

offenders and from crime scene evidence, subject to quality assurance and privacy requirements, and (3) provided funding for the

CODIS program and for state and local laboratories to enhance or

expand their DNA testing abilities. The legislatively authorized

DNA Advisory Board has been in existence for over five years and

has recommended quality assurance standards both for laboratories

that analyze crime scene DNA evidence and laboratories that analyze DNA samples collected from convicted offenders. The FBI Director has adopted these standards as national standards for

CODIS and participation in the national DNA index. Compliance

with these quality assurance standards is also required for laboratories receiving federal funding for DNA purposes.

The practical operation of CODIS is as follows: Suppose, for example, that a sexual assault is committed, and a rape kit is taken

from the victim.1 A DNA profile of the perpetrator is developed

from the rape kit evidence. If there is no suspect in the case, or

if a known suspect’s DNA profile does not match that of the rape

kit evidence, the laboratory will search the DNA profile against the

index of DNA profiles obtained from convicted offenders. If there is

a match in the convicted offender index, the laboratory will obtain

the identity of the suspected perpetrator. If there is no match in

the convicted offender index, the DNA profile is searched in the

index of DNA profiles derived from forensic (i.e., crime scene) evidence. If there is a match in the forensic index, the laboratory has

linked two or more crimes together and law enforcement agencies

27

involved in the cases are able to pool the information obtained in

each of the cases.

As this example indicates, one of the underlying concepts behind

CODIS is to create a database of convicted offender profiles and

use it to solve crimes for which there are no suspects. Recognizing

this, as early as the late 1980’s, states began to enact laws requiring that offenders convicted of certain offenses provide DNA samples. Currently, all 50 states have such laws. The national DNA

identification index administered by the FBI compiles the DNA

profiles obtained under the state systems and makes them accessible on a nationwide basis for law enforcement identification purposes.

Pursuant to the 1994 legislation, the DNA identification system

incorporates strict privacy protections. The statutory rules for the

system provide that stored DNA samples and DNA analyses may

be used for law enforcement identification purposes and virtually

nothing else. See 42 U.S.C. 14132(b)(3). This ensures that if the

DNA profile of a convicted offender is included in the index, the information will not be disclosed, and he will suffer no adverse consequences later in life—unless DNA matching shows him to be the

source of DNA found at the scene of another crime or crimes.

Moreover, the genetic markers used for forensic DNA testing

were purposely selected because they are not associated with any

known physical or medical characteristics, providing further assurance against the use of convicted offender DNA profiles for purposes other than law enforcement identification. In common parlance, they show only the configuration of DNA at selected ‘‘junk

sites’’ which do not control or influence the expression of any trait.

DNA records in the national database contain the following information only: an agency identifier for the agencies submitting the

DNA profile; the specimen identification number; the DNA profile;

and the name of the DNA personnel associated with the DNA analysis. As noted, DNA profiles generated in conformity with the national standards do not reveal information relating to any medical

condition or other trait. By design, the effect of the system is to

provide a kind of genetic fingerprint, which uniquely identifies an

individual, but does not provide a basis for determining or inferring

anything else about the person.

II. CONVICTED OFFENDER SAMPLE BACKLOG REDUCTION

Following the initial passage of state legislation creating DNA

databases, laboratory capacity for the analysis of convicted offender

DNA samples did not keep pace with the collection of the samples.

This has resulted in a backlog of hundreds of thousands of DNA

samples taken from convicted offenders. Samples often remain in

storage for years, even after a convicted offender is released from

prison. If the released offender commits new crimes, the database

is of no value in identifying him so long as the sample taken from

him has not been analyzed and profiled in the database.

Pursuant to a $15 million FY2000 appropriation, the National

Institute of Justice is administering an assistance program to help

the states clear this backlog of unanalyzed samples. The scope of

the backlog problem, and the operation of the existing assistance

program, are described in greater detail in our Subcommittee testimony. See DOJ–NIJ Testimony, supra, at 1–2, 5–7, 7–8, 10–11.

28

H.R. 4640, in § 2, recognizes the need to carry forward and complete this backlog elimination program. However, certain features

of the bill would have the unintended effect of impeding the efficient and prompt completion of the program. These problems could

be resolved by using instead the language appearing in Attachment

A to this letter. In relation to the current language of the bill, our

specific comments are as follows:

1. Funding levels. The current backlog reduction program for convicted offender samples has an appropriation of $15 million for

FY2000. We project that continued funding at this level—$15 million annually—for two additional years will suffice to eliminate the

existing backlog of state convicted offender samples. Thereafter,

the states should be able to keep abreast of their convicted offender

samples without further federal funding. The Administration’s

budget request for FY 2001 includes funding at the $15 million

level. However, H.R. 4640 only authorizes $10 million annually,

and requires that the funding be split between convicted offender

sample backlog reduction and forensic (‘‘crime scene’’) sample backlog reduction. This would predictably delay for several years completion of the convicted offender backlog elimination program. We

recommend adequate funding of the convicted offender sample

backlog reduction program at the level requested by the Administration.

2. Identity of grantees. In one important respect, we believe that

the formulation of the existing backlog reduction program should

be changed. The current statutory provisions for the program require that funding go directly to the states. As a result, state procurement processes must be followed by the grantees in dealing

with laboratories that analyze their samples. Substantial economies of scale are lost because these laboratories have to increase

their price per sample to include marketing and administration

costs to all 50 states, and valuable time is lost in procurement processes that should be spent actually analyzing the convicted offender samples.

The process would be streamlined and simplified if allocated

funds were not distributed directly to the states, but rather if the

states were given vouchers which they could redeem at approved

laboratories that would be the direct grantees of the funding. We

expect that the efficiency of such a voucher system would increase

by 20–30% the number of samples that can be analyzed with the

same amount of funding. See DOJ–NIJ testimony, supra, at 11.

The current language in § 2(a) of H.R. 4640 limits eligible grantees to ‘‘States.’’ This would preclude the more efficient approach of

direct payment to the laboratories that carry out the sample analysis. As indicated in Attachment A to this letter, adequate language could simply authorize the Attorney General to make grants

to assist States in eliminating their backlogs, and specify that such

grants may be made to public or private entities to carry out DNA

analysis for states as provided by the Attorney General.

3. Analysis by private laboratories. Under the existing backlog reduction program, the vast majority of sample analysis is being carried out for the states by private laboratories. These are the laboratories which presently have the capacity to do this backlog reduction work. Precluding or stringently restricting outsourcing to priVerDate 11-MAY-2000 05:21 Sep 27, 2000 Jkt 079006 PO 00000 Frm 00028 Fmt 6659 Sfmt 6601 E:\PICKUP\HR900P1.XXX pfrm08 PsN: HR900P1
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2 Utilization of private laboratories for DNA analysis does not compromise privacy interests.

Any public or private entity which prepares DNA analyses for inclusion in the national DNA

identification index must comply with the standards of subsection (b) of 42 U.S.C. 14132, including the privacy rules set forth in paragraph (3) of that subsection. Those rules generally provide

that DNA samples and analyses may be utilized solely for law enforcement identification purposes. Noncompliance with these standards would result in ineligibility for participation in DNA

grant programs, debarment from access to the national index, and potentially other penalties.

See 42 U.S.C. 14132(c), 14133(c). Additional protections are inherent in the design of the DNA

identification system and grant programs administered as part of the system. As discussed

above, the indexed information does not reveal a person’s traits or characteristics.

vate laboratories would effectively halt the backlog reduction program, and delay its completion for many years.

H.R. 4640 § 2(e)(1) limits DNA sample analysis under the backlog

program to laboratories ‘‘operated by the State’’ or ‘‘operated by a

private entity pursuant to a contract with the State.’’ On a restrictive reading, this could be understood to limit DNA sample analysis to public laboratories, and to quasi-public laboratories operated

for states by private entities pursuant to contract, thereby precluding sample analysis by ordinary private laboratories. This language should be clarified or eliminated to ensure that sample analysis by private laboratories will not be limited.2

4. Assistance for analysis of all backlogged samples. Section

2(a)(1), (b)(2) in the bill contains language which would apparently

limit backlog reduction assistance to analysis of samples taken

from persons convicted of ‘‘violent or sexual offenses.’’ There is no

such restriction under the existing program. Imposing this restriction would disrupt the program by requiring states to segregate

samples taken from violent or sexual offenders and those taken

from other offenders, and to limit use of the assistance funding to

the violent/sexual offender samples.

This limitation would reduce the value of the backlog reduction

program and impair the operation of the DNA identification system. Many states collect DNA samples from some types of nonviolent (and nonsexual) offenders—e.g., burglars, or all felons. As

discussed below, experience indicates that samples collected on the

basis of convictions for nonviolent offenses are actually among the

most useful in solving crimes, including violent crimes. The DNA

identification system would be undermined by denying states assistance in clearing their backlogs of such samples.

5. Matching funds. Section 2(f)(1) of the bill would impose a 25%

matching funds requirement on states, though there is no such requirement under the existing program. Matching funds requirements are generally imposed to encourage state responsibility and

continuation of a program beyond the termination of federal funding. However, a new requirement of this type would not be helpful

in the context of the backlog reduction program. The states have

their own incentives to keep abreast of their convicted offender

samples, but have been unable to do so because of a backlog of convicted offender samples generated by the start-up of the DNA database systems. See DOJ–NIJ Testimony, supra, at 5–8. Once the existing convicted offender sample backlog is cleared—which should

be possible in another two years with adequate funding—state laboratory capacity is likely to be adequate to analyze in a timely

manner the new samples that come in. Imposing a matching funds

requirement during the limited period of federal funding is not necessary to promote this result. Rather, it would more likely be counVerDate 11-MAY-2000 05:21 Sep 27, 2000 Jkt 079006 PO 00000 Frm 00029 Fmt 6659 Sfmt 6601 E:\PICKUP\HR900P1.XXX pfrm08 PsN: HR900P1
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terproductive, potentially delaying the elimination of the backlog in

some states.

6. Other matters. Section 2 of H.R. 4640 contains fairly elaborate

provisions relating to administrative matters, such as state plans

required for funding eligibility, quality assurance, nonsupplanting

and administrative cost requirements, reports, and fiscal controls.

However, such matters can be and are addressed through existing

statutory requirements and administrative rules under the current

program. See, e.g., 42 U.S.C. 14131, 14132(b)(1)–(2) (relating to

quality assurance and proficiency testing standards applicable to

all laboratories analyzing samples for inclusion in the DNA identification index). Extensive new statutory provisions would tend to

complicate the administration of the program, but would not serve

any positive purpose. Rather, simple statutory provisions like those

set out in Attachment A to this letter would be adequate.

II. FORENSIC (‘‘CRIME SCENE’’) SAMPLE BACKLOG REDUCTION

The other critical backlog problem is unanalyzed forensic (‘‘crime

scene’’) samples. For example, a recent survey performed by the Police Executive Research Forum estimated that over 180,000 rape

kits currently sit in evidence storage lockers throughout the country unanalyzed for DNA evidence. Every day, many of these cases

become unprosecutable because they are barred by statutes of limitations. Every day, killers, rapists, and other dangerous criminals

remain at large who could be identified and apprehended through

the effective utilization of the existing DNA technology.

As with the backlog of convicted offender samples, the backlog of

crime scene samples results primarily from limited laboratory capacity. Currently, forensic laboratories must prioritize their DNA

cases by first analyzing DNA samples in cases which are scheduled

for trial. Next in line are cases in which known suspects exist, but

in which the DNA must be analyzed to make an arrest, or in some

in cases to release an innocent suspect from custody. Not until

those cases are analyzed are laboratories able to address the solution of cases without known suspects. In conjunction with limited

laboratory capacity, the low prioritization of these cases tends to

thwart a central objective of the DNA identification system, which

is specifically intended and designed to permit the solution of nosuspect cases through matching to DNA profiles in the convicted offender database, and through the establishment of ‘‘crime scene to

crime scene’’ linkages. In many instances, police do not even submit rape kits to crime labs when they have no suspect because they

believe the samples will never get analyzed. See DOJ–NIJ Testimony, supra, at 2, 8–10.

Our Subcommittee testimony endorsed the establishment of an

assistance program to address this critical problem. See DOJ–NIJ

Testimony, supra, at 2, 11–12. We believe that an effective program addressing the forensic backlog must reflect the following

points: (1) outsourcing to private laboratories is generally the most

expeditious way to reduce the backlog of untested no-suspect cases

because the capacity of most public laboratories is over-extended,

and (2) public laboratories, however, must also be stimulated to increase capacity to handle the ongoing submission of unknown suspect cases in a timely fashion.

31

3See Prepared Statement of David Coffman, Crime Laboratory Analyst Supervisor, Florida

Department of Law Enforcement before the House Judiciary Subcommittee on Crime, at 7

(March 23, 2000) (long-term solution to forensic sample backlog problem requires appropriate

staff and facilities for public laboratories).

1. Outsourcing. Outsourcing some portion of the current backlog

of unknown suspect casework to private laboratories will allow immediate successes in solving crimes through matches with DNA

profiles in the convicted offender database. Beyond its direct value

in solving rapes and other serious crimes, the solution of no-suspect

cases through DNA matching is likely to spur support at the state

level and encourage public laboratories to build stronger infrastructure for the analysis of crime scene DNA evidence in such cases.

This should enable the public laboratories in the long term to incorporate what has traditionally been considered lower priority case

work into their daily routines. As with the convicted offender backlog reduction program, the statutory provisions for the forensic

backlog reduction program should be drafted to allow the efficient

approach of direct grants to private laboratories, where such laboratories analyze backlogged forensic samples for the states.

The draft provisions in Attachment B to this letter accordingly

authorize outsourcing to provide a degree of immediate relief for

the forensic sample backlog—as well as grants to increase public

laboratory capacity—and are worded to allow private laboratories

as direct grantees. The corresponding provisions in § 2 of H.R. 4640

are less satisfactory as currently formulated. They only allow states

as direct grantees, which would reproduce in the forensic sample

program the inefficiencies that have been seen to arise from this

limitation in the current convicted offender sample program. The

provisions of the bill also do not clearly recognize the dual need for

immediate relief through outsourcing to private laboratories and

expansion of public laboratory capacity to carry out forensic sample

analysis for the long term.

2. Expansion of public laboratory capacity. The other key objective of the forensic backlog reduction program should be building

the infrastructure of public crime laboratories. By supplying laboratories with funding specifically to increase their capacity for unknown suspect casework, future backlog issues will be eliminated.

Eventually, public laboratories will be able to replace the temporary outsourcing solution.3 The suggested statutory provisions in

Attachment B explicitly recognize this objective and authorize

grants for this purpose.

The draft provisions in Attachment B would permit the implementation of an effective program to eliminate the forensic sample

backlog. As discussed above, however, the provisions currently appearing in § 2 of H.R. 4640 are not consistent in some respects with

the effective design of such a program. Also, as with the convicted

offender backlog program, the degree of administrative detail in the

bill’s current provisions—concerning such matters as eligibility

plans, quality assurance, matching funds, non-supplanting and administrative cost requirements, reports, and fiscal controls—is not

needed and would tend to introduce unnecessary complications into

the forensic backlog elimination program. The simpler provisions

set forth in Attachment B would be adequate.

32

III. INCLUDING FEDERAL OFFENDERS IN THE DNA IDENTIFICATION

SYSTEM

In 1996, Congress acted to fill a gap in the DNA identification

system by authorizing the expansion of the national DNA identification index to include information on federal and D.C. offenders.

See § 811(a)(2) of the Antiterrorism and Effective Death Penalty

Act of 1996. However, it has not been possible to implement this

decision, in the absence of statutory authority and funding to collect and analyze DNA samples from these offenders. The Department of Justice accordingly proposed additional legislation to provide the necessary authority in a report submitted by the FBI to

Congress. See FBI Laboratory Report to Congress: Implementation

Plan for Collection of DNA Samples from Federal Convicted Offenders Pursuant to P.L. 105–229, Appendix A (Dec. 1998). Several

proposals which ultimately derive from the Department’s original

proposal have been introduced in the current Congress, including

H.R. 3375 § 6, H.R. 2810 § 3, and § 1503 of S. 254 as passed by the

Senate. The proposal for federal offender sample collection and indexing in § 3 of H.R. 4640 is the most recent.

Following the approach of existing federal law, our proposal

would not restrict by statute the categories of federal offenders who

can be included in the DNA identification system. See DOJ–NIJ

Testimony, supra, at 2–3, 13–17. H.R. 4640, however, would limit

offense coverage for purposes of DNA sample collection and indexing to: (1) certain homicidal offenses under chapter 51 of title 18,

(2) sex offenses, (3) kidnapping, and (4) attempts or conspiracies to

commit these crimes. This is radically more restrictive than any

earlier enactment, bill, or proposal. It would generally preclude

DNA sample collection from (among others) persons convicted of

terrorist crimes, civil rights offenses, aggravated assault, robbery,

burglary, arson, violent crimes associated with drug trafficking, extortion, or organized crime offenses. For example:

• A sample could not be collected from a terrorist convicted

under 18 U.S.C. 32 for planting a bomb on an airplane, or

even for actually blowing up an airplane.

• A sample could not be collected from a person convicted

under 18 U.S.C. 2332 for engaging in terrorist violence

against U.S. nationals, or under 18 U.S.C. 2332a for using

a weapon of mass destruction in a terrorist attack.

• A sample could not be collected from a person convicted

under 18 U.S.C. 351 for assaulting, attempting to kill, or actually killing a member of Congress.

• A sample could not be collected from a gangster convicted

under RICO or other racketeering laws (18 U.S.C. 1951–52,

1958–59, 1961ff.) for such crimes as murder, arson, robbery,

or extortion.

• A sample could not be collected from a person convicted

under 18 U.S.C. 245 or 247 for a hate crime involving torture or murder of the victim.

We are advised that the restrictive approach of H.R. 4640 reflects

the view of some that the DNA identification system was conceived

and designed to contain DNA profiles from convicted sex offenders,

and that any significant extension beyond that limited scope would

33

4 Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Georgia,

Hawaii, Idaho, Illinois, Indiana, Kansas, Louisiana, Maine, Massachusetts, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. 5 Alabama, Alaska, Arkansas, California, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana,

Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nevada, New Mexico, New

York, North Carolina, Oklahoma, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. 6 Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Maine, Maryland, Massachusetts, Minnesota, Montana, New Mexico, New York, North Carolina, Tennessee, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. 7 Alabama, Arizona, Florida, Georgia, Indiana, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Mexico, New York, Oregon, Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming. 8 Alabama, Georgia, New Mexico, Tennessee, Virginia, Wisconsin, and Wyoming.

require a controversial change in the character of the system. This

assumption, however, is mistaken. From its inception, the national

DNA identification system has permitted the inclusion of DNA profiles from persons convicted of crimes, with no restrictions on offense category coverage. See 42 U.S.C. 14132(a) (‘‘[t]he Director of

the Federal Bureau of Investigation may establish an index of . . .

DNA identification records of persons convicted of crimes . . . [and]

. . . analyses of DNA samples recovered from crime scenes’’). Likewise, when Congress acted in 1996 to authorize expansion of the

system to include DNA profiles from convicted federal and D.C. offenders, it included no restrictions on allowed offense categories.

See § 811(a)(2) of the Antiterrorism and Effective Death Penalty

Act of 1996 (‘‘the Director of the Federal Bureau of Investigation

may expand the combined DNA Identification System (CODIS) to

include Federal crimes and crimes committed in the District of Columbia’’).

At the state level, the trend has been towards broader offense

coverage for purposes of DNA sample collection and indexing. A recent review of state systems found, for example, that all states covered sex offenses, 40 states covered offenses against children,4 29

states covered assault/battery offenses,5 22 states covered robberies,6 20 states covered burglaries,7 and seven states covered all

felonies.8 Proposals for further extensions of offense coverage are

pending in many states. See, e.g., Letter of Governor George E.

Pataki to Honorable Bill McCollum, Chairman, House Judiciary

Subcommittee on Crime (March 20, 2000) (governor has submitted

proposal to the New York legislature that will ‘‘further expand the

DNA databank to require that all felony and misdemeanor offenders submit a DNA sample upon conviction’’); Testimony of Michael

G. Sheppo, Bureau Chief, Illinois State Police, before the House Judiciary Subcommittee on Crime, at 1 (March 23, 2000) (noting

pending Illinois legislation to include persons convicted of ‘‘crimes

such as homicide, attempted homicide, kidnapping, aggravated kidnapping, burglary, and other serious crimes,’’ which will ‘‘substantially increase the power of the DNA database to solve crimes’’).

In assessing this issue, it is important to understand that the

perpetrators of sexual crimes and other violent crimes frequently

have varied criminal histories, including both violent and nonviolent offenses. In many cases, the DNA sample which (for example) enables law enforcement to identify the perpetrator of a rape

has not been collected in connection with an earlier rape conviction,

but as a result of the perpetrator’s prior conviction for some other

type of crime—perhaps a lesser violent offense, or an offense that

34

9See Prepared Statement of David Coffman, Crime Laboratory Analyst Supervisor, Florida

Department of Law Enforcement before the House Judiciary Subcommittee on Crime, at 5

(March 23, 2000) (‘‘Florida has documented that over 52% of the offenders matched to sexual

assaults and homicides using the state’s DNA database had a prior burglary conviction in their

criminal history. . . . [The] legislative expansion [to include burglaries] will increase the size

of Florida’s DNA database from 65,000 offenders to over 110,000 in the first year of implementation.’’).

was not violent. Hence, even if the identification of sexual offenders

(or other serious violent offenders) is seen as the principal focus of

the DNA identification system, achieving this objective effectively

requires casting a broader net.

The experience in a number of state systems provides strong confirmation for this point. For example, Virginia collects DNA samples from all convicted felons. A review of cases in Virginia in

which offenders were linked to sex crimes through DNA matching

found that 40% of the offenders had no prior convictions for sexual

or violent offenses. The findings imply that no match might have

been obtained in 40% of the Virginia sex offense cases in which

DNA identifications were made if the state database had been confined to violent or sex offenders.

Likewise, Florida has been collecting DNA samples from a broader range of offenders than the narrow categories proposed in H.R.

4640, including persons convicted of such offenses as aggravated

battery and some types of robbery. Empirical study in Florida

showed that 52% of the offenders in Florida who were linked to a

crime through DNA matching—in most cases a sexual assault or

homicide—had burglary convictions in their criminal histories. In

light of this finding, Florida recently enacted legislation adding

burglary as a basis for DNA sample collection.9

These findings highlight the enormous human costs of the restrictive approach proposed in H.R. 4640. Persons committing the

most heinous crimes will escape apprehension—and will remain at

large to engage in further predation against innocent members of

the public—because samples will not be taken from them on the

basis of their conviction for crimes that fall outside of the bill’s narrow categories. The following cases illustrate what is lost under

such a restrictive approach:

• Timothy Spencer, referred to as the ‘‘Southside Strangler,’’ is

a serial killer who was convicted of the sexual assault and

murder of four women in Richmond, Virginia in the mid1980s. Spencer’s case served as the seminal case for the use

of DNA evidence and was instrumental in the creation of a

convicted offender DNA database in Virginia. Spencer’s

criminal record included convictions for burglary and trespassing, but lacked any violent or sex offenses. The restrictive approach of H.R. 4640 would exclude from the DNA

identification system the DNA profile of a federal offender

with a criminal record like Spencer’s, and could thereby prevent the solution of murders and rapes committed by such

an offender.

• In New York, legislation took effect in December, 1999,

which required all convicted violent felons and a number of

nonviolent felons (approximately 65% of all offenders) to submit DNA samples, thus increasing tenfold the number of

DNA samples in the state’s DNA databank. This immeVerDate 11-MAY-2000 05:21 Sep 27, 2000 Jkt 079006 PO 00000 Frm 00034 Fmt 6659 Sfmt 6601 E:\PICKUP\HR900P1.XXX pfrm08 PsN: HR900P1
35

10See Letter of Gov. George E. Pataki to Honorable Bill McCollum, Chairman, House Judiciary Subcommittee on Crime (March 20, 2000); DOJ–FBI Statement, supra, at 2; Testimony of

Rep. Anthony D. Weiner before the House Judiciary Subcommittee on Crime (March 23, 2000). 11 In a number of pending prosecutions for violent or sexual offenses in Virginia, matches were

obtained on the basis of DNA samples taken for earlier convictions for nonviolent offenses. For

example: (1) A defendant is currently facing prosecution for homicide because of a DNA match

from an earlier marijuana conviction. (2) A defendant whose DNA sample was taken after a conviction for receiving stolen property is currently being charged with homicide. (3) A defendant

is being charged in a rape on the basis of the DNA sample that was taken when the suspect

was originally convicted of cocaine possession. (4) A defendant whose DNA sample was taken

after a forgery conviction is currently being prosecuted for the rape of a 10-year-old girl. (5) A

defendant is being prosecuted for the rape of an elderly woman based on DNA evidence taken

from an earlier burglary conviction. (6) A defendant is being charged in a homicide on the basis

of the DNA sample that was taken when the suspect was originally convicted of breaking and

entering.

diately led to the identification of a suspect in the unsolved

brutal killing of Diane Gregory in 1979. DNA analysis of a

bloodied sheet provided a match to the DNA profile of Walter

Gill, a convicted robber, whose DNA sample was taken and

entered into the databank shortly after the new law took effect.10 In contrast, the standards of H.R. 4640 would not

allow sample collection based on convictions for robbery, or

for the vast majority of other violent offenses, or for any nonviolent and nonsexual offense.

• Mark Daigle is a serial rapist who brutally attacked victims

in Sarasota, Florida in 1997. He was convicted and is currently serving six life terms. Daigle was identified only after

Florida officials sent a DNA sample to Virginia for examination against Virginia’s DNA database. Because Virginia’s

DNA database includes all convicted felons, Virginia officials

were able to find a match for Daigle, who had been convicted

years before in Virginia on charges of grand theft, burglary,

larceny, escape, and failure to pay child support.

• In Virginia, Jerry Wyche was convicted for the rape of a 25-

year-old woman and for the aggravated sexual battery of a

10-year-old girl. These convictions were obtained because

crime scene DNA samples matched Wyche’s DNA sample

taken in 1994 as a result of a conviction for attempted auto

theft. In another Virginia rape case, S. Hudnall pleaded

guilty after the DNA sample from the rape matched a DNA

sample taken from him after a conviction for burglary.11

The restrictive approach of H.R. 4640 will also endanger the innocent by preventing their exoneration through DNA testing. Both

in the investigative stage of criminal cases, and in the post-conviction setting, DNA testing may clear an individual who is mistakenly suspected or convicted of committing a crime by identifying

the actual perpetrator. This cannot occur, however, unless the actual perpetrator’s DNA profile is in the convicted offender database. Since there would be relatively few federal offenders in the

database under the restrictive approach of H.R. 4640, the possibility of exonerating innocent persons through the identification of

the actual perpetrators would be reduced accordingly.

Hence, the restrictive approach of H.R. 4640 could be justified

only if it served some purpose even more important than convicting

the guilty and protecting the innocent. We see no such overriding

purpose. Considerations of privacy or confidentiality do not justify

these restrictions. If an offender’s records are included in the DNA

identification index, he is protected by the strict confidentiality

36

12 Alaska, Arizona, Arkansas, California, Colorado, Florida, Idaho, Illinois, Kansas, Louisiana,

Maine, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and Washington.

rules in the DNA statutes (42 U.S.C. 14132(b)(3), 14133(b)–(c)). As

noted above, these rules allow samples collected from offenders and

information in the index to be used for law enforcement identification purposes and virtually nothing else. Moreover, the genetic

markers used for forensic DNA testing were purposely selected because they are not associated with any known physical or medical

characteristics, providing further assurance against the use of convicted offender DNA profiles for purposes other than identification.

An offender suffers no adverse effects later in life from the inclusion of information on him in the index—unless DNA matching

shows him to be the source of DNA found at the scene of another

crime or crimes.

We accordingly recommend that the legislation be formulated in

a manner consistent with existing federal law, see § 811(a)(2) of the

Antiterrorism and Effective Death Penalty Act of 1996, by not restricting the categories of federal, military, and D.C. offenders who

can be included in the DNA identification system. We have a number of further recommendations concerning particular issues in the

formulation of the proposal:

1. Coverage of adjudicated delinquents. We disagree with H.R.

4640’s failure to include adjudicated juvenile delinquents among

the categories of persons from whom samples can be collected, and

for whom information can be included in the DNA identification

index. See DOJ–NIJ Testimony, supra, at 15–16. This omission

would bar the collection of samples from juveniles who are adjudicated delinquent in federal proceedings, regardless of the seriousness of their conduct. Moreover, about half of the states currently

do collect samples from adjudicated delinquents.12 There is no reason why these states should be barred from entering the resulting

DNA analyses and records in the national index.

As a matter of policy, a 17-year-old who is adjudicated delinquent

for (e.g.) molesting a child or committing a rape presents potentially the same future danger to public safety as an older person

who commits such a crime. If he commits additional offenses later

in life, the public interest in being able to solve these crimes and

apprehend the perpetrator is the same, regardless of the age at

which he commenced his course of criminal conduct. Of course justice systems often incorporate stronger protections of confidentiality and privacy for juveniles than for adult offenders—but all

information in the DNA identification index is subject to strict confidentiality rules which ensure that no one will know about it, and

the individual will suffer no adverse effects later in life, unless his

DNA profile in the index matches that of DNA found in crime

scene evidence. In light of these protections, we see no basis for excluding or restricting sample collection and indexing of information

for juveniles.

2. Military offenders. There are some problems in the formulation

of the bill’s provisions relating to DNA sample collection and indexing for military offenders. Section 5 of the bill provides that the

secretaries of the military departments are to collect DNA samples

from convicted military offenders. However, some military offenders are housed in regular federal prisons under the jurisdiction of

37

the Bureau of Prisons (rather than military prisons), and military

offenders who are paroled from Bureau of Prisons facilities are supervised by federal probation offices (rather than the military parole supervision systems). In many of these cases, it will make

more sense for the Bureau of Prisons or the probation offices to collect the samples from the military offenders in their custody or supervision, rather than requiring the Department of Defense to do

it directly. The bill should be modified to authorize this arrangement.

The provision in section 5 of the bill requiring that the FBI analyze DNA samples collected from military offenders is also problematic. It is inconsistent with earlier legislative proposals, and with

the plans developed by the Justice Department and the Department of Defense, under which the Department of Defense will be

responsible for the analysis of the military offender samples it collects. See DOJ–NIJ Testimony, supra, at 21.

3. District of Columbia offenders. The bill, in § 4(d), has provisions relating to DNA sample collection from District of Columbia

offenders which are unnecessarily complicated and in some respects unclear. Affirmative action would be required by the District

of Columbia government to identify covered D.C. offenses, which

would have to be ‘‘violent or sexual offenses.’’ However, a fallback

provision would give the Attorney General the authority to identify

covered D.C. offenses, if the District of Columbia government failed

to act within 120 days. Whether the District of Columbia government or the Attorney General made this determination, the covered

D.C. offenses would have to include those ‘‘equivalent to’’ covered

federal offenses. It is unclear whether only ‘‘equivalent’’ D.C. offenses could be covered, or whether this provision just sets a floor

and other ‘‘violent or sexual offenses’’ could be covered, even if not

‘‘equivalent’’ to covered federal offenses. The relevant notion of

‘‘equivalence’’ is unclear. The definitions of particular offenses almost invariably are not exactly the same in different jurisdictions,

and this is true of the federal jurisdiction and the District of Columbia as well as others.

The problems under this provision would be mooted by accepting

our recommendation that the categories of covered federal, military, and D.C. offenses should not be restricted by statute. As suggested in earlier legislative proposals, covered D.C. offenses, as well

as covered federal offenses, could properly be specified by regulation.

H.R. 4640 also departs from earlier proposals in requiring that

the District of Columbia government collect DNA samples from offenders in its custody. A requirement of this type is unnecessary,

and the District of Columbia government has in the past objected

on home rule grounds to federal mandates that its agencies collect

DNA samples. Under the reforms of the National Capital Revitalization and Self-Government Improvement Act of 1997, the entire

population of incarcerated D.C. felons is being transferred to the

federal Bureau of Prisons (BOP), and virtually all adult D.C. offenders will be under probation supervision or post-imprisonment

supervision by the federal Court Services and Offender Supervision

Agency for the District of Columbia (CSOSA). Given this wholesale

transfer of the D.C. offender population to the jurisdiction of federal agencies, provisions directing that BOP and CSOSA collect

38

13The draft in Attachment C to this letter contains language for this purpose in proposed 42

U.S.C. 14132(d)(5)(E), (e)(2)(F).

samples from D.C. offenders in their custody or supervision are

adequate, and a mandate that the D.C. government also collect

samples is unnecessary.

4. Funding. It will not be possible to carry out the proposed expansion of the DNA identification system to include federal, military, and D.C. offenders without the funding needed for that purpose. This includes approximately $5.3 million for the FBI in firstyear costs, which has been included in the Administration’s budget

requests. See DOJ–NIJ Testimony, supra, at 3–4, 19–21 (discussing

budgetary requirements for FBI and other agencies).

5. Arrangements for sample collection. The federal agencies responsible for DNA sample collection may have their own personnel

carry out this function in some cases, but may in other cases find

it useful or necessary to have sample collection carried out by other

entities through contracting or other arrangements. For example,

contract facility personnel should be able to carry out DNA sample

collection from the many inmates in the custody of the Bureau of

Prisons who are housed in contract facilities. To foreclose litigative

challenges by offenders, it would be advisable to include explicit

language in the legislation which confirms the authority to have

sample collection carried out through such arrangements.13

6. Other systemic amendments. Section 6 of the bill includes some

amendments to the general provisions governing the DNA identification index. One of these amendments would modify 42 U.S.C.

14132(a)(2) to authorize including in the DNA identification index

analyses of DNA samples recovered from ‘‘victims of crime.’’ The

provision currently authorizes inclusion of analyses of DNA samples recovered from ‘‘crime scenes.’’ The purpose of the amendment

is unclear. DNA samples taken from victims—such as rape kits or

samples taken from the bodies of murder victims—are understood

to be encompassed in the current language covering ‘‘crime scene’’

samples.

Section 6 of the bill also includes provisions requiring the

expungement of information from the DNA identification index

where a federal, D.C., or military conviction has been overturned.

We recommend against the enactment of a statutory expungement

requirement. Cf. Ill. Comp. Stat. Ann., ch. 730, § 5/5–4–3(f) (notwithstanding any other statutory provision, information in state

DNA database ‘‘may not be subject to expungement’’). By way of

comparison, other records which may be useful for law enforcement

identification purposes, such as fingerprint records, are normally

not disposed of in case of reversal of a conviction. In light of the

strict confidentiality rules that govern the DNA identification

index, the fact that a person’s DNA profile is included in the index

is not disclosed, and retention of the information has no effect on

him later in life, unless DNA matching shows him to be the source

of DNA found at the scene of another crime or crimes. See DOJ–

NIJ Testimony, supra, at 17–18.

If, against our recommendation, statutory expungement requirements are included in the bill, we recommend that they go no further than deemed necessary. By way of comparison, the corresponding provisions passed by the Senate, in S. 254 § 1503, proVerDate 11-MAY-2000 05:21 Sep 27, 2000 Jkt 079006 PO 00000 Frm 00038 Fmt 6659 Sfmt 6601 E:\PICKUP\HR900P1.XXX pfrm08 PsN: HR900P1
39

vide for expungement only of DNA profiles from juveniles adjudicated delinquent (not for those from adult offenders), and only in

cases in which the underlying delinquency adjudication has been

expunged.

Modification of the expungement procedure for military offenders

would be advisable, if the expungement provision for such offenders

remains in the bill. The states vary in whether they provide for

expungement under their DNA provisions in case of reversal of a

conviction. In states which do provide for expungement, persons

whose convictions have been reversed do not directly approach the

FBI with evidence of reversal of the conviction. Rather, they contact the appropriate state authorities, who then notify the FBI to

expunge the records from the national index. In cases in which the

Defense Department has forwarded to the FBI the DNA profile of

a military offender for inclusion in the DNA identification index, it

is in essentially the same position as a state which has submitted

a DNA profile for a state offender. If expungement is to be required

where a person’s court martial conviction is reversed, the appropriate procedure would be for the person to deal with the Department of Defense, and for that Department to notify the FBI to expunge the record from the index.

Section 8(d) of H.R. 4640 contains an amendment to 42 U.S.C.

14132(b), a statute defining requirements for data maintained in

the DNA identification index. The amendment would change the

quality assurance requirements for laboratories that prepare DNA

analyses for inclusion in the index. The amendment is drafted as

a substitute for current 42 U.S.C. 14132(b)(2), which is not concerned with general quality assurance standards, but with periodic

external proficiency testing. This would eliminate the specific requirement for external proficiency testing in current 42 U.S.C.

14132(b)(2), and substitute new quality assurance standards which

would coexist with conflicting quality assurance requirements in 42

U.S.C. 14132(b)(1). Perhaps the new language in the amendment

is actually intended as a substitute for current 42 U.S.C.

14132(b)(1), which does address quality assurance.

Whatever the intent may be on this drafting point, the change

in quality assurance requirements proposed in section 8(d) should

not be made. In part, the new language in the amendment provides

that laboratories may satisfy quality assurance standards adopted

by the Director of the FBI. However, it refers to quality assurance

standards maintained by the FBI Director under section 2 of the

bill, rather than the statute (42 U.S.C. 14131) under which the FBI

Director has issued the existing national quality assurance standards. Moreover, the amendment provides in the alternative that

laboratories may prepare DNA analyses for inclusion in the national DNA identification index—even if they do not satisfy the

quality assurance standards adopted by the Director of the FBI—

if they are accredited by nonprofit professional associations that

satisfy certain criteria. There are very few organizations that currently offer accreditation programs that would satisfy the elements

of this provision, and they are not required to adopt the FBI Director’s national quality assurance standards.

To ensure the integrity of data included in the national DNA

index, the law now requires that laboratories preparing analyses

for inclusion in the index meet the quality assurance standards

40

issued by the FBI Director. See 42 U.S.C. 14131, 14132(b)(1). The

amendment proposed in section 8(d), however, would potentially

destroy the important uniformity of minimum quality assurance

standards required under existing law. We accordingly recommend

that the change proposed in section 8(d) not be made.

Attachment C to this letter contains suggested provisions for incorporating federal, military, and D.C. offenders into the DNA

identification system, and for necessary ‘‘systemic’’ amendments,

which conform fully to the recommendations set forth above.

In sum, the Department of Justice strongly supports the objectives of this legislation. However, modifications in the bill are needed to realize these objectives effectively. The backlog reduction assistance program for convicted offender samples should be designed

and adequately funded so as to permit the continuation and prompt

completion of the existing program. The new program for forensic

sample backlog reduction should provide immediate relief through

outsourcing to private laboratories, and should promote a permanent solution to the forensic sample backlog problem through support for increased public laboratory capacity. The provisions for including federal, military, and D.C. offenders in the DNA identification system should not restrict the offense categories for which

samples can be collected.

Thank you for your attention to this matter. We have appreciated the opportunity to work with the staffs of the Chairman and

Ranking Minority Member of the Subcommittee on Crime in connection with this issue. If we may be of additional assistance, we

trust that you will not hesitate to call upon us. The Office of Management and Budget advises that there is no objection to the submission of this report from the standpoint of the Administration’s

program.

Sincerely,

ROBERT RABEN, Assistant Attorney General.

cc: Honorable John Conyers Jr.

Ranking Democratic Member

Attachments

ATTACHMENT A—PROVISIONS RELATING TO CONVICTED OFFENDER

DNA SAMPLE BACKLOG REDUCTION:

Sec. ll. Elimination of Convicted Offender DNA Sample Backlog.

(a) GRANTS.—The Attorney General may make grants to assist

States in eliminating their backlogs of unanalyzed DNA samples

collected from convicted offenders. Grants awarded under this section may be made to public or private entities to carry out DNA

analysis for States as provided by the Attorney General.

(b) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to carry out this section $15,000,000 in

fiscal year 2001 and $15,000,000 in fiscal year 2002.

(c) DEFINITION.—As used in this section, ‘‘State’’ means a State

of the United States, the District of Columbia, or a commonwealth,

territory, or possession of the United States.

41

ATTACHMENT B—PROVISIONS RELATING TO FORENSIC (‘‘CRIME SCENE’’)

DNA SAMPLE BACKLOG REDUCTION:

Sec. ll. Elimination of Forensic DNA Sample Backlog.

(a) GRANTS.—The Attorney General may make grants to assist

States in eliminating, and preventing the future development of,

backlogs of cases without known suspects in which the perpetrator

may be identifiable through DNA analysis. The program carried

out under this section shall include both grants to public or private

entities for the DNA analysis of evidence in no-suspect cases

through outsourcing, and grants to increase the capacity of public

laboratories to carry out such analysis.

(b) GRANT ELIGIBILITY CONDITION.—To be eligible to receive a grant under this section, or to submit material for analysis

through outsourcing supported by a grant under this section, a

State must submit to the Attorney General an assessment of the

volume and nature of unanalyzed evidence in the State to which

this section may apply, and a plan to utilize any funding or resources made available to carry out the purposes of this section.

(c) DEFINITION.—As used in this section, ‘‘State’’ means a State

of the United States, the District of Columbia, or a commonwealth,

territory, or possession of the United States.

ATTACHMENT C—PROVISIONS FOR INCLUDING FEDERAL, MILITARY,

AND D.C. OFFENDERS IN THE DNA IDENTIFICATION SYSTEM:

Sec. ll. Inclusion of Federal Offenders in the DNA Identification

System.

(a) EXPANSION OF DNA IDENTIFICATION INDEX.—Section

811(a)(2) of the Antiterrorism and Effective Death Penalty Act of

1996 is amended to read as follows:

‘‘(2) the Director of the Federal Bureau of Investigation may expand the Combined DNA Identification System (CODIS) to include

information on DNA identification records and analyses related to

Federal crimes, crimes under the Uniform Code of Military Justice,

and crimes under the District of Columbia Code, in accordance

with section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132).’’.

(b) AMENDMENTS TO DNA IDENTIFICATION STATUTE.—

Section 210304 of the Violent Crime Control and Law Enforcement

Act of 1994 (42 U.S.C. 14132) is amended—

(1) in subsection (a), by amending paragraph (1) to read as follows:

‘‘(1) DNA identification records of persons convicted of or adjudicated delinquent for crimes;’’;

(2) in subsection (b)(2), by striking ‘‘, at regular intervals of not

to exceed 180 days,’’ and inserting ‘‘semiannual’’; and

(3) by adding at the end the following:

‘‘(d) FEDERAL AND DISTRICT OF COLUMBIA CRIMES.—(1)

The Director of the Federal Bureau of Investigation shall include

in the index established by this section DNA identification records

from persons convicted of or adjudicated delinquent for qualifying

Federal crimes or qualifying crimes under the District of Columbia

Code, as defined in regulations promulgated by the Director (hereafter, ‘qualifying crimes’). The Director of the Federal Bureau of InVerDate 11-MAY-2000 05:21 Sep 27, 2000 Jkt 079006 PO 00000 Frm 00041 Fmt 6659 Sfmt 6601 E:\PICKUP\HR900P1.XXX pfrm08 PsN: HR900P1
42

vestigation shall promulgate regulations establishing standards

and procedures for the analysis of the DNA samples collected from

such persons, and for the inclusion of the analyses and DNA identification records relating to those samples in the index. In promulgating regulations under this paragraph, the Director of the Federal Bureau of Investigation shall consult with the Director of the

Bureau of Prisons, the Director of the Court Services and Offender

Supervision Agency for the District of Columbia, and the Chief of

Police of the Metropolitan Police Department of the District of Columbia.

‘‘(2) The Bureau of Prisons shall collect a DNA sample from each

person in its custody who has been convicted of or adjudicated delinquent for a qualifying crime. The Director of the Bureau of Prisons shall specify the time and manner of collection of DNA samples

from such persons.

‘‘(3) The probation office responsible for a person’s supervision

shall collect a DNA sample from each person who is on supervised

release, parole, or probation and who has been convicted of or adjudicated delinquent for a qualifying crime. The Director of the Administrative Office of the United States Courts shall specify the

time and manner of collection of DNA samples from such persons.

‘‘(4) (A) The Court Services and Offender Supervision Agency for

the District of Columbia shall collect a DNA sample from each person under the supervision of the Agency who is on supervised release, parole, or probation and who has been convicted of a qualifying crime. The Director of the Agency shall specify the time and

manner of collection of DNA samples from such persons.

‘‘(B) The Government of the District of Columbia shall have the

authority to collect DNA samples from persons who are in the custody of or under supervision by the District of Columbia, including

the authority to determine the categories of such persons from

whom DNA samples will be collected.

‘‘(5) The agency responsible for collecting DNA samples under

paragraph (2), (3), or (4)(A)—

‘‘(A) shall collect DNA samples from persons convicted of or adjudicated delinquent for qualifying offenses before or after the enactment of this subsection;

‘‘(B) shall, subject to the availability of appropriations, commence

the collection of DNA samples no later than 180 days after the enactment of this subsection;

‘‘(C) may waive the collection of a DNA sample from a person if

another agency has collected such a sample from the person;

‘‘(D) may use or authorize the use of such means as are necessary to restrain, and collect a DNA sample from, a person who

refuses to cooperate in the collection of a sample; and

‘‘(E) may have its own personnel carry out DNA sample collection, or have other persons or entities carry out DNA sample collection through contracting or other arrangements.

‘‘(e) MILITARY OFFENDERS.—(1) The Secretary of Defense

shall specify categories of conduct punishable under the Uniform

Code of Military Justice (hereafter, ‘qualifying military crimes’)

which are comparable to the crimes specified by the Director of the

Federal Bureau of Investigation under subsection (d) (1). The Secretary shall promulgate regulations establishing standards and

procedures for—

43

‘‘(A) the collection of DNA samples from persons convicted of

qualifying military crimes;

‘‘(B) the analysis of DNA samples collected from such persons;

and

‘‘(C) the inclusion of the analyses of such DNA samples and DNA

identification records relating to those samples in the index established by this section.

‘‘(2) The Secretary—

‘‘(A) shall collect DNA samples from persons convicted of qualifying military crimes before or after the enactment of this subsection who are in custody or under supervision;

‘‘(B) shall, subject to the availability of appropriations, commence

the collection of DNA samples no later than 180 days after the enactment of this subsection;

‘‘(C) may waive the collection of a DNA sample from a person if

another agency has collected such a sample from the person;

‘‘(D) may delegate the authority to collect a DNA sample from a

person to the Bureau of Prisons or another agency responsible for

the collection of samples under subsection (d), if the person is or

will be in the custody of or under supervision by the Bureau of

Prisons or such other agency;

‘‘(E) may use or authorize the use of such means as are necessary

to restrain, and collect a DNA sample from, a person who refuses

to cooperate in the collection of the sample; and

‘‘(F) may have Department of Defense personnel carry out DNA

sample collection, or have other persons or entities carry out DNA

sample collection through contracting or other arrangements.

‘‘(f) CRIMINAL PENALTIES.—If the collection of a DNA sample

from a person is required pursuant to subsection (d), the refusal of

the person to cooperate in the collection of such a sample is a Class

A misdemeanor. If the collection of a DNA sample from a person

is required pursuant to subsection (e), the refusal of the person to

cooperate in the collection of such a sample may be punished as a

court martial may direct as a violation of the Uniform Code of Military Justice.

‘‘(g) AUTHORIZATION OF APPROPRIATIONS.—There are authorized to be appropriated to carry out subsections (d) and (e)—

‘‘(1) to the Department of Justice—

‘‘(A) $5,300,000 for fiscal year 2001; and

‘‘(B) such sums as may be necessary for each of fiscal years 2002

through 2005;

‘‘(2) to the Court Services and Offender Supervision Agency for

the District of Columbia, such sums as may be necessary for each

of fiscal years 2001 through 2005; and

‘‘(3) to the Department of Defense, such sums as may be necessary for each of fiscal years 2001 through 2005.’’.

(c) CONDITIONS OF RELEASE.—(1) Section 3563(a) of title 18,

United States Code, is amended—

(A) in paragraph (7), by striking ‘‘and’’ at the end;

(B) in paragraph (8), by striking the period at the end and inserting ‘‘; and’’; and

(C) by inserting after paragraph (8) the following:

‘‘(9) that the defendant cooperate in the collection of a DNA sample from the defendant if the collection of such a sample is required

44

pursuant to section 210304 of the Violent Crime Control and Law

Enforcement Act of 1994 (42 U.S.C. 14132).’’.

(2) Section 3583(d) of title 18, United States Code, is amended

by inserting before ‘‘The court shall also order’’ the following: ‘‘The

court shall order as an explicit condition of supervised release that

the defendant cooperate in the collection of a DNA sample from the

defendant if the collection of such a sample is required pursuant

to section 210304 of the Violent Crime Control and Law Enforcement Act of 1994 (42 U.S.C. 14132).’’.

(3) Section 4209(a) of title 18, United States Code, is amended

by inserting before ‘‘In every case, the Commission shall also impose’’ the following: ‘‘In every case, the Commission shall impose as

a condition of parole that the parolee cooperate in the collection of

a DNA sample from the parolee if the collection of such a sample

is required pursuant to section 210304 of the Violent Crime Control

and Law Enforcement Act of 1994 (42 U.S.C. 14132).’’.

(4) If the collection of a DNA sample from a person on probation,

parole, or supervised release pursuant to a conviction or adjudication of delinquency under the law of any jurisdiction is required

pursuant to section 210304 of the Violent Crime Control and Law

Enforcement Act of 1994 (42 U.S.C. 14132), it is a condition of the

person’s probation, parole, or supervised release that the person cooperate in the collection of a DNA sample from the person.

(d) CONFORMING AMENDMENTS.—(1) Section 503(a)(12)(C)

of title I of the Omnibus Crime Control and Safe Streets Act of

1968 (42 U.S.C. 3753(a)(12)(C)) is amended by striking ‘‘, at regular

intervals of not to exceed 180 days,’’ and inserting ‘‘semiannual’’.

(2) Section 2403(3) of title I of the Omnibus Crime Control and

Safe Streets Act of 1968 (42 U.S.C. 3796kk–2(3)) is amended by

striking ‘‘, at regular intervals not exceeding 180 days,’’ and inserting ‘‘semiannual’’.

(3) Section 210305(a)(1)(A) of the Violent Crime Control and Law

Enforcement Act of 1994 (42 U.S.C. 14133(a)(1)(A)) is amended by

striking ‘‘, at regular intervals of not to exceed 180 days,’’ and inserting ‘‘semiannual’’.

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italics,

existing law in which no change is proposed is shown in roman):

CHAPTER 80 OF TITLE 10, UNITED STATES CODE

CHAPTER 80—MISCELLANEOUS INVESTIGATION

REQUIREMENTS AND OTHER DUTIES

Sec.

1561. Complaints of sexual harassment: investigation by commanding officers.

* * * * * * *

1565. DNA identification information: collection from certain offenders; use.

* * * * * * *

45

§ 1565. DNA identification information: collection from certain offenders; use

(a) COLLECTION OF DNA SAMPLES.—(1) The Secretary concerned shall collect a DNA sample from each member of the armed

forces under the Secretary’s jurisdiction who is, or has been, convicted of a qualifying military offense (as determined under subsection (d)).

(2) For each member described in paragraph (1), if the Combined DNA Index System (in this section referred to as ‘‘CODIS’’) of

the Federal Bureau of Investigation contains a DNA analysis with

respect to that member, or if a DNA sample has been or is to be collected from that member under section 3(a) of the DNA Analysis

Backlog Elimination Act of 2000, the Secretary concerned may (but

need not) collect a DNA sample from that member.

(3) The Secretary concerned may enter into agreements with

other Federal agencies, units of State or local government, or private

entities to provide for the collection of samples described in paragraph (1).

(b) ANALYSIS AND USE OF SAMPLES.—The Secretary concerned

shall furnish each DNA sample collected under subsection (a) to the

Secretary of Defense. The Secretary of Defense shall carry out a

DNA analysis on each such DNA sample and furnish the results of

each such analysis to the Director of the Federal Bureau of Investigation for inclusion in CODIS.

(c) DEFINITIONS.—In this section:

(1) The term ‘‘DNA sample’’ means a tissue, fluid, or other

bodily sample of an individual on which a DNA analysis can

be carried out.

(2) The term ‘‘DNA analysis’’ means analysis of the

deoxyribonucleic acid (DNA) identification information in a

bodily sample.

(d) QUALIFYING MILITARY OFFENSES.—(1) Subject to paragraph

(2), the Secretary of Defense, in consultation with the Attorney General, shall determine those felony or sexual offenses under the Uniform Code of Military Justice that shall be treated for purposes of

this section as qualifying military offenses.

(2) An offense under the Uniform Code of Military Justice that

is comparable to a qualifying Federal offense (as determined under

section 3(d) of the DNA Analysis Backlog Elimination Act of 2000),

as determined by the Secretary in consultation with the Attorney

General, shall be treated for purposes of this section as a qualifying

military offense.

(e) EXPUNGEMENT.—(1) The Secretary of Defense shall promptly

expunge, from the index described in subsection (a) of section

210304 of the Violent Crime Control and Law Enforcement Act of

1994, the DNA analysis of a person included in the index on the

basis of a qualifying military offense if the Secretary receives, for

each conviction of the person of a qualifying offense, a certified copy

of a final court order establishing that such conviction has been

overturned.

(2) For purposes of paragraph (1), the term ‘‘qualifying offense’’

means any of the following offenses:

(A) A qualifying Federal offense, as determined under section 3 of the DNA Analysis Backlog Elimination Act of 2000.

46

(B) A qualifying District of Columbia offense, as determined under section 4 of the DNA Analysis Backlog Elimination Act of 2000.

(C) A qualifying military offense.

(3) For purposes of paragraph (1), a court order is not ‘‘final’’

if time remains for an appeal or application for discretionary review

with respect to the order.

(f) REGULATIONS.—This section shall be carried out under regulations prescribed by the Secretary of Defense, in consultation with

the Secretary of Transportation and the Attorney General. Those

regulations shall apply, to the extent practicable, uniformly

throughout the armed forces.

SECTION 811 OF THE ANTITERRORISM AND EFFECTIVE

DEATH PENALTY ACT OF 1996

SEC. 811. FEDERAL BUREAU OF INVESTIGATION.

(a) IN GENERAL.—With funds made available pursuant to subsection (c)—

(1) * * *

ø(2) the Director of the Federal Bureau of Investigation

may expand the combined DNA Identification System (CODIS)

to include Federal crimes and crimes committed in the District

of Columbia.¿

(2) the Director of the Federal Bureau of Investigation shall

expand the combined DNA Identification System (CODIS) to include analyses of DNA samples collected from—

(A) individuals convicted of a qualifying Federal offense, as determined under section 3(d) of the DNA Analysis Backlog Elimination Act of 2000;

(B) individuals convicted of a qualifying District of Columbia offense, as determined under section 4(d) of the

DNA Analysis Backlog Elimination Act of 2000; and

(C) members of the Armed Forces convicted of a qualifying military offense, as determined under section 1565(d)

of title 10, United States Code.

* * * * * * *

VIOLENT CRIME CONTROL AND LAW ENFORCEMENT

ACT OF 1994

TITLE XXI—STATE AND LOCAL LAW

ENFORCEMENT

* * * * * * *

Subtitle C—DNA Identification

* * * * * * *

47

SEC. 210304. INDEX TO FACILITATE LAW ENFORCEMENT EXCHANGE

OF DNA IDENTIFICATION INFORMATION.

(a) * * *

(b) INFORMATION.—The index described in subsection (a) shall

include only information on DNA identification records and DNA

analyses that are—

(1) based on analyses performed by or on behalf of a criminal justice agency (or the Secretary of Defense in accordance

with section 1565 of title 10, United States Code) in accordance

with publicly available standards that satisfy or exceed the

guidelines for a quality assurance program for DNA analysis,

issued by the Director of the Federal Bureau of Investigation

under section 210303;

(2) prepared by laboratories, and DNA analysts, that

undergoø, at regular intervals of not to exceed 180 days,¿ semiannual external proficiency testing by a DNA proficiency testing program meeting the standards issued under section

210303 (or prepared by the Secretary of Defense in accordance

with section 1565 of title 10, United States Code); and

(3) maintained by Federal, State, and local criminal justice

agencies (or the Secretary of Defense in accordance with section

1565 of title 10, United States Code) pursuant to rules that

allow disclosure of stored DNA samples and DNA analyses

only—

(A) to criminal justice agencies for law enforcement

identification purposes;

(B) in judicial proceedings, if otherwise admissible

pursuant to applicable statutes or rules;

(C) for criminal defense purposes, to a defendant, who

shall have access to samples and analyses performed in

connection with the case in which such defendant is

charged; or

(D) if personally identifiable information is removed,

for a population statistics database, for identification research and protocol development purposes, or for quality

control purposes.

* * * * * * *

(d) EXPUNGEMENT OF RECORDS.—(1) The Director of the Federal Bureau of Investigation shall promptly expunge from the index

described in subsection (a) the DNA analysis of a person included

in the index on the basis of a qualifying Federal offense or a qualifying District of Columbia offense (as determined under section 3

and 4 of the DNA Analysis Backlog Elimination Act of 2000, respectively) if the Director receives, for each conviction of the person of

a qualifying offense, a certified copy of a final court order establishing that such conviction has been overturned.

(2) For purposes of paragraph (1), the term ‘‘qualifying offense’’

means any of the following offenses:

(A) A qualifying Federal offense, as determined under section 3 of the DNA Analysis Backlog Elimination Act of 2000.

(B) A qualifying District of Columbia offense, as determined under section 4 of the DNA Analysis Backlog Elimination Act of 2000.

(C) A qualifying military offense, as determined under section 1565 of title 10, United States Code.

48

(3) For purposes of paragraph (1), a court order is not ‘‘final’’

if time remains for an appeal or application for discretionary review

with respect to the order.

SEC. 210305. FEDERAL BUREAU OF INVESTIGATION.

(a) PROFICIENCY TESTING REQUIREMENTS.—

(1) GENERALLY.—(A) Personnel at the Federal Bureau of

Investigation who perform DNA analyses shall undergoø, at

regular intervals of not to exceed 180 days,¿ semiannual external proficiency testing by a DNA proficiency testing program

meeting the standards issued under section 210303.

* * * * * * *

TITLE 18, UNITED STATES CODE

PART II—CRIMINAL PROCEDURE

* * * * * * *

CHAPTER 227—SENTENCES

* * * * * * *

SUBCHAPTER B—PROBATION

§ 3563. Conditions of probation

(a) MANDATORY CONDITIONS.—The court shall provide, as an

explicit condition of a sentence of probation—

(1) * * *

* * * * * * *

(7) that the defendant will notify the court of any material

change in the defendant’s economic circumstances that might

affect the defendant’s ability to pay restitution, fines, or special

assessments; øand¿

(8) for a person described in section 4042(c)(4), that the

person report the address where the person will reside and any

subsequent change of residence to the probation officer responsible for supervision, and that the person register in any State

where the person resides, is employed, carries on a vocation,

or is a student (as such terms are defined under section

170101(a)(3) of the Violent Crime Control and Law Enforcement Act of 1994)ø.¿; and

(9) that the defendant cooperate in the collection of a DNA

sample from the defendant if the collection of such a sample is

authorized pursuant to section 3 of the DNA Analysis Backlog

Elimination Act of 2000.

If the court has imposed and ordered execution of a fine and placed

the defendant on probation, payment of the fine or adherence to

the court-established installment schedule shall be a condition of

the probation.

* * * * * * *

49

SUBCHAPTER D—IMPRISONMENT

* * * * * * *

§ 3583. Inclusion of a term of supervised release after imprisonment

(a) * * *

* * * * * * *

(d) CONDITIONS OF SUPERVISED RELEASE.—The court shall

order, as an explicit condition of supervised release, that the defendant not commit another Federal, State, or local crime during

the term of supervision and that the defendant not unlawfully possess a controlled substance. The court shall order, as an explicit

condition of supervised release, that the defendant cooperate in the

collection of a DNA sample from the defendant, if the collection of

such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000. The court shall order as an

explicit condition of supervised release for a defendant convicted for

the first time of a domestic violence crime as defined in section

3561(b) that the defendant attend a public, private, or private nonprofit offender rehabilitation program that has been approved by

the court, in consultation with a State Coalition Against Domestic

Violence or other appropriate experts, if an approved program is

readily available within a 50-mile radius of the legal residence of

the defendant. The court shall order, as an explicit condition of supervised release for a person described in section 4042(c)(4), that

the person report the address where the person will reside and any

subsequent change of residence to the probation officer responsible

for supervision, and that the person register in any State where

the person resides, is employed, carries on a vocation, or is a student (as such terms are defined under section 170101(a)(3) of the

Violent Crime Control and Law Enforcement Act of 1994). The

court shall also order, as an explicit condition of supervised release,

that the defendant refrain from any unlawful use of a controlled

substance and submit to a drug test within 15 days of release on

supervised release and at least 2 periodic drug tests thereafter (as

determined by the court) for use of a controlled substance. The condition stated in the preceding sentence may be ameliorated or suspended by the court as provided in section 3563(a)(4). The results

of a drug test administered in accordance with the preceding subsection shall be subject to confirmation only if the results are positive, the defendant is subject to possible imprisonment for such

failure, and either the defendant denies the accuracy of such test

or there is some other reason to question the results of the test.

A drug test confirmation shall be a urine drug test confirmed using

gas chromatography/mass spectrometry techniques or such test as

the Director of the Administrative Office of the United States

Courts after consultation with the Secretary of Health and Human

Services may determine to be of equivalent accuracy. The court

shall consider whether the availability of appropriate substance

abuse treatment programs, or an individual’s current or past participation in such programs, warrants an exception in accordance

with United States Sentencing Commission guidelines from the

rule of section 3583(g) when considering any action against a deVerDate 11-MAY-2000 05:21 Sep 27, 2000 Jkt 079006 PO 00000 Frm 00049 Fmt 6659 Sfmt 6601 E:\PICKUP\HR900P1.XXX pfrm08 PsN: HR900P1
50

fendant who fails a drug test. The court may order, as a further

condition of supervised release, to the extent that such condition—

* * * * * * *

OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF

1968

* * * * * * *

TITLE I—JUSTICE SYSTEM IMPROVEMENT

* * * * * * *

PART E—BUREAU OF JUSTICE ASSISTANCE GRANT PROGRAMS

* * * * * * *

Subpart 1—Drug Control and System

Improvement Grant Program

* * * * * * *

STATE APPLICATIONS

SEC. 503. (a) To request a grant under this subpart, the chief

executive officer of a State shall submit an application within 60

days after the Bureau has promulgated regulations under this section, and for each subsequent year, within 60 days after the date

that appropriations for this part are enacted, in such form as the

Director may require. Such application shall include the following:

(1) * * *

* * * * * * *

(12) If any part of funds received from a grant made under

this part is to be used to develop or improve a DNA analysis

capability in a forensic laboratory, a certification that—

(A) * * *

* * * * * * *

(C) such laboratory, and each analyst performing DNA

analyses at such laboratory, will undergoø, at regular intervals of not to exceed 180 days,¿ semiannual external

proficiency testing by a DNA proficiency testing program

meeting the standards issued under section 210303 of the

DNA Identification Act of 1994.

* * * * * * *

PART X—DNA IDENTIFICATION GRANTS

* * * * * * *

SEC. 2403. APPLICATION REQUIREMENTS.

No grant may be made under this part unless an application

has been submitted to the Attorney General in which the applicant

certifies that—

51

(1) * * *

* * * * * * *

(3) the laboratory and each analyst performing DNA analyses at the laboratory shall undergoø, at regular intervals not

exceeding 180 days,¿ semiannual external proficiency testing

by a DNA proficiency testing program that meets the standards issued under section 210303 of the DNA Identification Act

of 1994.

* * * * * * *

(53)

MINORITY VIEWS

We concur with the Majority Views as to the importance of providing additional funds to States and localities to address their

DNA backlogs. However, by providing these resources to the

States, the amount of data entered into the Combine DNA Index

System (CODIS) will dramatically expand. With this expansion

comes the increased likelihood that the DNA samples and analyses

could be misused. We must be ever mindful of our responsibility to

protect the privacy of this DNA information, ensuring that it be

used only for law enforcement identification purposes.

We are pleased that the Judiciary Committee agreed to an

amendment that would impose criminal penalties for anyone who

uses DNA samples or analyses for purposes not designated by

CODIS. We are also grateful to the Majority for its willingness to

provide for the expungement from CODIS of DNA information on

individuals whose convictions have been overturned on appeal. The

information obtainable from DNA testing surpasses any previous

types of testing available. The amount of personal and private data

contained in a DNA specimen provides insights into the most personal family relationships and the most intimate workings of the

human body, including the likelihood of the occurrence of over

4,000 types of genetic conditions and diseases. Genetic information

pertains not only to the individual whose DNA is sampled, but also

to anyone who shares that bloodline. Thus, in addition to criminal

penalties for misuse of DNA, we believe a specific security protocol

should be developed to prevent misuse of such samples. This approach is the only way to ensure that the DNA analysis will not

be used for unlawful purposes.

However, we are disappointed that H.R. 4640 does not include

any requirements on States to provide access to DNA testing to

convicted persons who did not have access to such testing at the

time of their trial. While we certainly support H.R. 4640, we believe that Congress should also ensure some of the funds be made

available to persons seeking to prove they were wrongfully convicted.

JOHN CONYERS, JR.

JERROLD NADLER.

ROBERT C. SCOTT.

MAXINE WATERS.

WILLIAM D. DELAHUNT.

STEVEN R. ROTHMAN.

Æ