II

106TH CONGRESS

2D SESSION S. 2859

To provide assistance to States in reducing the backlog of casework files

awaiting DNA analysis and to make DNA testing available in appropriate

cases to convicted Federal and State offenders.

IN THE SENATE OF THE UNITED STATES

JULY 13, 2000

Mr. SCHUMER introduced the following bill; which was read twice and referred

to the Committee on the Judiciary

A BILL

To provide assistance to States in reducing the backlog of

casework files awaiting DNA analysis and to make DNA

testing available in appropriate cases to convicted Federal and State offenders.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘DNA Testing Avail5 ability Act’’.

6 SEC. 2. AWARDS TO STATES TO REDUCE DNA CASEWORK

7 BACKLOG.

8 (a) DEVELOPMENT OF PLAN.—
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1 (1) IN GENERAL.—Not later than 45 days after

2 the date of enactment of this Act, the Director of

3 the Federal Bureau of Investigation, in coordination

4 with the Assistant Attorney General of the Office of

5 Justice Programs of the Department of Justice, and

6 after consultation with representatives of States and

7 private forensic laboratories, shall develop a plan to

8 grant voluntary awards to States to facilitate DNA

9 analysis of all casework evidence of unsolved crimes.

10 (2) OBJECTIVE.—The objective of the plan de11 veloped under paragraph (1) shall be to expedite the

12 analysis of all casework evidence of unsolved crimes

13 in an efficient and effective manner, and to provide

14 for the entry of DNA profiles into the combined

15 DNA Indexing System (‘‘CODIS’’).

16 (b) AWARD CRITERIA.—The Federal Bureau of In17 vestigation, in coordination with the Assistant Attorney

18 General of the Office of Justice Programs of the Depart19 ment of Justice, shall develop criteria for the granting of

20 awards under this section including—

21 (1) the applying State’s number of unsolved

22 crimes awaiting DNA analysis; and

23 (2) the applying State’s development of a com24 prehensive plan to collect and analyze DNA evi25 dence.
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1 (c) GRANTING OF AWARDS.—The Federal Bureau of

2 Investigation, in coordination with the Assistant Attorney

3 General of the Office of Justice Programs of the Depart4 ment of Justice, shall develop applications for awards to

5 be granted to States under this section, shall consider all

6 applications submitted by States, and shall disburse all

7 awards under this section.

8 (d) AWARD CONDITIONS.—States receiving awards

9 under this section shall—

10 (1) require that each laboratory performing

11 DNA analysis satisfies quality assurance standards

12 and utilizes state-of-the-art DNA testing methods,

13 as set forth by the Federal Bureau of Investigation

14 in coordination with the Assistant Attorney General

15 of the Office of Justice Programs of the Department

16 of Justice;

17 (2) ensure that each DNA sample collected and

18 analyzed be made available only—

19 (A) to criminal justice agencies for law en20 forcement purposes;

21 (B) in judicial proceedings if otherwise ad22 missible;

23 (C) for criminal defense purposes, to a

24 criminal defendant, who shall have access to

25 samples and analyses performed in connection
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1 with any case in which such defendant is

2 charged; or

3 (D) if personally identifiable information is

4 removed, for a population statistics database,

5 for identification research and protocol develop6 ment purposes, or for quality control purposes;

7 and

8 (3) match the award by spending 15 percent of

9 the amount of the award in State funds to facilitate

10 DNA analysis of all casework evidence of unsolved

11 crimes.

12 (e) AUTHORIZATION OF APPROPRIATIONS.—There

13 are authorized to be appropriated to the Department of

14 Justice $25,000,000 for each of fiscal years 2001, 2002,

15 2003, and 2004, for awards to be granted under this sec16 tion.

17 SEC. 3. DNA TESTING IN FEDERAL CRIMINAL JUSTICE SYS18 TEM.

19 (a) IN GENERAL.—Part IV of title 28, United States

20 Code, is amended by inserting after chapter 155 the fol21 lowing:

22 ‘‘CHAPTER 156—DNA TESTING

‘‘Sec.

‘‘2291. DNA testing.

‘‘2292. Preservation of biological material.
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1 ‘‘§ 2291. DNA testing

2 ‘‘(a) PETITION FOR TESTING.—Notwithstanding any

3 other provision of law, a person convicted of a crime by

4 any Federal court may, at any time, petition the court

5 that entered the judgment of conviction for forensic DNA

6 testing of biological material in the possession or control

7 of the Government or the court that relates to the prosecu8 tion that resulted in conviction.

9 ‘‘(b) OPPORTUNITY FOR GOVERNMENT TO RE10 SPOND.—The court shall notify the Government of any pe11 tition filed under subsection (a) and shall afford the Gov12 ernment an opportunity to respond.

13 ‘‘(c) MANDATORY TESTING.—After considering the

14 petition and any response, the court shall order testing

15 if it finds that—

16 ‘‘(1) a reasonable probability exists that the pe17 titioner would not have been prosecuted or convicted

18 if exculpatory results had been obtained through

19 DNA testing;

20 ‘‘(2) the evidence petitioner seeks to have tested

21 is still in existence and in such a condition that

22 DNA testing may be conducted;

23 ‘‘(3) the evidence was never previously sub24 jected to DNA testing or was not subjected to the

25 testing now requested, which can resolve an issue

26 not resolved by previous testing; and
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1 ‘‘(4) the petition has been filed for the purpose

2 of demonstrating innocence, and not merely to delay

3 the execution of sentence or the administration of

4 justice.

5 ‘‘(d) DISCRETIONARY TESTING.—After consideration

6 of the petition and any response, the court may order test7 ing if it finds that—

8 ‘‘(1) a reasonable probability exists that DNA

9 testing of the evidence would have rendered the out10 come of the petitioner’s prosecution or sentencing

11 more favorable had the results been available;

12 ‘‘(2) the evidence petitioner seeks to have tested

13 is still in existence and in such a condition that

14 DNA testing may be conducted;

15 ‘‘(3) the evidence was never previously sub16 jected to DNA testing or was not subjected to the

17 testing now requested, which can resolve an issue

18 not resolved by previous testing; and

19 ‘‘(4) the petition has been filed for the purpose

20 of demonstrating innocence, and not merely to delay

21 the execution of sentence or administration of jus22 tice.

23 ‘‘(e) TESTING PROCEDURES.—

24 ‘‘(1) PAYMENT BY PETITIONER.—In the case of

25 an order under subsection (a), the court shall, if
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1 necessary, order the test without payment by the pe2 titioner. In the case of an order under subsection

3 (b), the court may require the petitioner to pay for

4 the testing.

5 ‘‘(2) COUNSEL.—The court may appoint coun6 sel for an indigent petitioner at any time during pro7 ceedings instituted under this section.

8 ‘‘(3) DISCOVERY.—The petitioner and the Gov9 ernment shall disclose to all parties and the court

10 the existence of any previous DNA or other biologi11 cal evidence testing relating to the prosecution giv12 ing rise to the petition. If any evidence in the peti13 tioner’s case has previously been subjected to DNA

14 testing, the court may order production of laboratory

15 reports, underlying data and laboratory notes to all

16 parties and the court. If the court grants a petition

17 filed under this section, the court shall order the

18 production of any laboratory reports prepared in

19 connection with the DNA testing and may, in its

20 discretion, order production of the underlying data

21 and laboratory notes.

22 ‘‘(4) PRESERVATION ORDER.—Unless the peti23 tion is summarily dismissed, the court shall order

24 that all evidence in the possession or control of the

25 Government or the court that could be subjected to
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1 DNA testing be preserved during the pendency of

2 the proceeding.

3 ‘‘(5) CHOICE OF LABORATORY.—If the court or4 ders testing, it shall select a laboratory that meets

5 the standards adopted pursuant to the DNA Identi6 fication Act of 1994.

7 ‘‘(6) ADDITIONAL ORDERS.—The court may, in

8 its discretion, issue such other orders as may be ap9 propriate.

10 ‘‘(f) PROCEDURE AFTER TEST RESULTS ARE OB11 TAINED.—

12 ‘‘(1) UNFAVORABLE.—If the results of DNA

13 testing ordered under subsection (a) or (b) are unfa14 vorable to the petitioner, the court shall dismiss the

15 petition and issue such further orders as shall be ap16 propriate.

17 ‘‘(2) FAVORABLE.—If the results of DNA test18 ing ordered under subsection (a) or (b) are favorable

19 to the petitioner, the court shall—

20 ‘‘(A) order a hearing, notwithstanding any

21 provision of law that would bar such a hearing

22 as untimely; and

23 ‘‘(B) enter any order that serves the inter24 ests of justice, including an order—
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1 ‘‘(i) vacating and setting aside the

2 judgment of conviction;

3 ‘‘(ii) discharging the petitioner if the

4 petitioner is in custody;

5 ‘‘(iii) resentencing the petitioner; or

6 ‘‘(iv) granting a new trial.

7 ‘‘(g) RULE OF CONSTRUCTION.—Nothing in this sec8 tion shall be construed to limit the circumstances under

9 which a person may obtain DNA testing or other post10 conviction relief under any other provision of law.

11 ‘‘§ 2292. Preservation of biological material

12 ‘‘(a) IN GENERAL.—Notwithstanding any other pro13 vision of law and subject to subsection (b), the Govern14 ment shall preserve any biological material secured in con15 nection with a criminal case for such period of time as

16 any person remains incarcerated in connection with that

17 case.

18 ‘‘(b) EXCEPTION.—The Government may destroy bio19 logical material before the expiration of the period of time

20 described in subsection (a) if—

21 ‘‘(1) the Government notifies any person who

22 remains in custody in connection with the case, and

23 any counsel of record, of the intention of the Gov24 ernment to destroy the material, and of the provi25 sions of this chapter;
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1 ‘‘(2) no person files a petition, or files a notice

2 of intention to file a petition as soon as is prac3 ticable, within 90 days of receiving notice under

4 paragraph (1); and

5 ‘‘(3) no other provision of law requires that

6 such biological material be preserved.’’.

7 (c) TECHNICAL AND CONFORMING AMENDMENT.—

8 The analysis for part VI of title 28, United States Code,

9 is amended by inserting after the item relating to chapter

10 155 the following:

‘‘156. DNA Testing .............................................................................. 2291’’.

11 SEC. 4. DNA TESTING IN STATE CRIMINAL JUSTICE SYS12 TEMS.

13 (a) DNA IDENTIFICATION GRANT PROGRAM.—Sec14 tion 2403 of title I of the Omnibus Crime Control and

15 Safe Streets Act of 1968 (42 U.S.C. 3796kk–2) is

16 amended—

17 (1) in paragraph (2)—

18 (A) in the matter preceding subparagraph

19 (A), by striking ‘‘shall’’ and inserting ‘‘will’’;

20 (B) in subparagraph (C), by striking ‘‘is

21 charged’’ and inserting ‘‘was charged or con22 victed’’; and

23 (C) in subparagraph (D), by striking

24 ‘‘and’’ at the end;

25 (2) in paragraph (3)—
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1 (A) by striking ‘‘shall’’ and inserting

2 ‘‘will’’; and

3 (B) by striking the period at the end and

4 inserting ‘‘; and’’; and

5 (3) by adding at the end the following:

6 ‘‘(4) the State will—

7 ‘‘(A) preserve all biological material se8 cured in connection with a State criminal case

9 for not less than the period of time that biologi10 cal material is required to be preserved under

11 section 2292 of title 28, United States Code, in

12 the case of a person incarcerated in connection

13 with a Federal criminal case; and

14 ‘‘(B) make DNA testing available to any

15 person convicted in State court to the same ex16 tent, and under the same conditions, that DNA

17 testing is available under section 2291 of title

18 28, United States Code, to any person convicted

19 in a court established by an Act of Congress.’’.

20 (b) DRUG CONTROL AND SYSTEM IMPROVEMENT

21 GRANT PROGRAM.—Section 503(a)(12) of title I of the

22 Omnibus Crime Control and Safe Streets Act of 1968 (42

23 U.S.C. 3753(a)(12)) is amended—

24 (1) in subparagraph (B)—
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1 (A) in clause (iii), by striking ‘‘is charged’’

2 and inserting ‘‘was charged or convicted’’; and

3 (B) in clause (iv), by striking ‘‘and’’ at the

4 end;

5 (2) in subparagraph (C), by striking the period

6 at the end and inserting ‘‘; and’’; and

7 (3) by adding at the end the following:

8 ‘‘(D) the State will—

9 ‘‘(i) preserve all biological material se10 cured in connection with a State criminal

11 case for not less than the period of time

12 that biological material is required to be

13 preserved under section 2292 of title 28,

14 United States Code, in the case of a per15 son incarcerated in connection with a Fed16 eral criminal case; and

17 ‘‘(ii) make DNA testing available to a

18 person convicted in State court to the

19 same extent, and under the same condi20 tions, that DNA testing is available under

21 section 2291 of title 28, United States

22 Code, to a person convicted in a court es23 tablished by an Act of Congress.’’.

24 (c) PUBLIC SAFETY AND COMMUNITY POLICING

25 GRANT PROGRAM.—Section 1702(c) of title I of the Om-
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1 nibus Crime Control and Safe Streets Act of 1968 (42

2 U.S.C. 3796dd–1(c)) is amended—

3 (1) in paragraph (10), by striking ‘‘and’’ at the

4 end;

5 (2) in paragraph (11), by striking the period at

6 the end and inserting ‘‘; and’’; and

7 (3) by adding at the end the following:

8 ‘‘(12) if any part of funds received from a grant

9 made under this subchapter is to be used to develop

10 or improve a DNA analysis capability in a forensic

11 laboratory, or to obtain or analyze DNA samples for

12 inclusion in the Combined DNA Index System

13 (CODIS), certify that—

14 ‘‘(A) DNA analyses performed at such lab15 oratory will satisfy or exceed the current stand16 ards for a quality assurance program for DNA

17 analysis, issued by the Director of the Federal

18 Bureau of Investigation under section 210303

19 of the DNA Identification Act of 1994 (42

20 U.S.C. 14131);

21 ‘‘(B) DNA samples and analyses obtained

22 and performed by such laboratory will be acces23 sible only—

24 ‘‘(i) to criminal justice agencies for

25 law enforcement purposes;
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1 ‘‘(ii) in judicial proceedings, if other2 wise admissible under applicable statutes

3 and rules;

4 ‘‘(iii) for criminal defense purposes, to

5 a defendant, who shall have access to sam6 ples and analyses performed in connection

7 with the case in which the defendant was

8 charged or convicted; or

9 ‘‘(iv) if personally identifiable infor10 mation is removed, for a population statis11 tics database, for identification research

12 and protocol development purposes, or for

13 quality control purposes;

14 ‘‘(C) the laboratory and each analyst per15 forming DNA analyses at the laboratory will

16 undergo, at regular intervals not exceeding 180

17 days, external proficiency testing by a DNA

18 proficiency testing program that meets the

19 standards issued under section 210303 of the

20 DNA Identification Act of 1994 (42 U.S.C.

21 14131); and

22 ‘‘(D) the State will—

23 ‘‘(i) preserve all biological material se24 cured in connection with a State criminal

25 case for not less than the period of time
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1 that biological material is required to be

2 preserved under section 2292 of title 28,

3 United States Code, in the case of a per4 son incarcerated in connection with a Fed5 eral criminal case; and

6 ‘‘(ii) make DNA testing available to

7 any person convicted in State court to the

8 same extent, and under the same condi9 tions, that DNA testing is available under

10 section 2291 of title 28, United States

11 Code, to a person convicted in a court es12 tablished by an Act of Congress.’’.

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