DNA Evidence: Preliminary Observations on DOJ's DNA Capacity Enhancement and Backlog Reduction Grant Program
Released: 2018-07-18T00:00:00

Letter

Background

DNA Analysis of Crime Scene Evidence

Analysis of DNA evidence from crime scenes can help law enforcement link offenders or victims to crime scenes. After crimes occur, law enforcement submits physical evidence from crime scenes, victims, and suspects (hereafter referred to as “crime scene evidence”) to labs for analysis. Labs then perform “DNA analysis,” which, as used in this statement, refers to (1) biology screening (locating, screening, identifying, and characterizing blood and other biological stains and substances); and/or (2) DNA testing (identifying and comparing DNA profiles in biological samples). In order to compare the victim’s or offender’s DNA profile to the recovered crime scene DNA, the lab will need to have known biological samples available. Thus, samples are generally collected from victims and may also be collected from others—such as suspects, crime scene personnel, first responders, and consensual sexual partners (in cases of sexual assault).

Matching DNA Profiles in the FBI’s Combined DNA Index System

Matching DNA profiles from unknown potential offenders to existing DNA profiles can help law enforcement develop investigative leads. If a case has no suspects to compare the DNA evidence to, the DNA profile of the unknown potential offender can be entered in the Federal Bureau of Investigation’s (FBI) Combined DNA Index System (CODIS), where it can be compared to existing DNA profiles at the local, state, or national level. Labs can then compare unknown potential offender profiles to other profiles already in CODIS, including: 1. Profiles generated from evidence taken from other crime scenes and connected to other unknown potential offenders. 2. Profiles generated from samples taken from known convicted offenders, arrestees, and others as required by law (hereafter “offender samples”). According to DOJ, the federal government, all 50 states, the District of Columbia, and Puerto Rico have laws requiring the collection of DNA samples from individuals convicted of certain crimes; in addition, the federal government, over half of the states, and the District of Columbia have laws authorizing the collection of DNA from individuals arrested for certain crimes.

When an unknown potential offender’s profile matches another profile within CODIS, a “hit” or investigative lead may be developed and shared with law enforcement, as shown in figure 1 below.

Only federal, state, or local government labs that meet the FBI’s Quality Assurance Standards can participate in CODIS. As of January 1, 2018 there were 201 labs that participated in CODIS in the U.S. Of these, 143 performed just forensic casework DNA analysis, 4 performed just offender sample DNA analysis, and 54 performed both. According to the FBI, as of May 2018, the national level of CODIS contained over 16 million profiles generated from offender samples and over 850,000 profiles generated from crime scene evidence. Also, the FBI reported that as of May 2018, CODIS had produced over 422,000 hits that aided more than 406,000 investigations.

DOJ’s Capacity Enhancement and Backlog Reduction Grant Program

The CEBR grant program is administered by the National Institute of Justice (NIJ), a component within OJP. NIJ, the research arm of DOJ, is responsible for evaluating programs and policies that respond to crime, and providing and administering awards for DNA analysis and forensic activities, among other criminal justice activities. The CEBR grant program is funded by an appropriation “for a DNA analysis and capacity enhancement program and for other local, State, and Federal forensic activities.” The broad appropriations language enables NIJ to allocate funding for a variety of forensic programs at funding levels established by the agency; however, congressional reports accompanying the appropriation have directed that OJP make funding for DNA analysis and capacity enhancement a priority. CEBR awards can be used to enhance capacity and reduce backlogs at government labs that analyze crime scene DNA evidence and/or process offender DNA samples. NIJ defines a “backlogged” request for analysis of crime scene evidence as a request that has not been completed within 30 days of receipt in the laboratory.

CEBR is a formula grant program that dates back to 2004. Grant awards are made non-competitively to states and units of local government based on a formula set by DOJ that allocates certain amounts to each state. This formula takes into account each state’s population and associated crime, and guarantees a minimum amount for eligible applicants from each state. CEBR has broad participation from states and local jurisdictions. For instance, in 2017 OJP awarded $61 million in CEBR grants to 131 grantees in 49 states, the District of Columbia, and Puerto Rico.

Preliminary Analysis of CEBR Data Show that the Backlog of Requests for Crime Scene DNA Analysis Is Increasing and Stakeholders Attribute This to Various Factors

Our preliminary analysis of CEBR grant program data show that the backlog of requests for crime scene DNA analysis has increased by 77 percent from 2011 through 2016, and that demand for such DNA analysis has outpaced laboratory capacity. In our review, we identified numerous factors that have contributed to an increased demand for DNA analysis beyond laboratories’ capacities, including scientific advancements in DNA analysis technology and state laws requiring testing of certain DNA evidence.

Preliminary Analysis of CEBR Data Show an Increasing Backlog for Crime Scene DNA Analysis at Laboratories among CEBR Grantees, though Backlogs Vary Among Individual Labs

We found that, among CEBR grantees, the reported aggregated backlog of requests for crime scene DNA analysis has increased by 77 percent from 2011 through 2016. As part of the grant application process, NIJ requires applicants for CEBR grants to provide data from all labs in their jurisdiction, even if certain labs will not be using CEBR funds. NIJ does this to assist in understanding nationwide trends in DNA analysis backlogs. The reported growth in the aggregate backlog among CEBR grantees is the result of labs receiving more requests than they were able to complete over time, as shown in the figure below.

Although reported aggregate trends show an increase in the backlog among CEBR grantees, the data also reveal that this increase is not uniform across all labs. For example, among the 118 grantees for which we had data from 2011 through 2016, 30 grantees (25 percent) reported an overall decrease in the backlog. In addition, data from CEBR grantees show differences in the average time it takes to process requests (turnaround time) among grantees. Stakeholders also stated, and NIJ has reported, that labs generally have shorter average turnaround times for requests associated with violent crimes than for requests associated with non-violent crimes—because labs generally prioritize requests associated with violent crimes. For our ongoing review, we continue to analyze CEBR data and data from other sources pertaining to this issue.

Various Factors, Such as Scientific Advancements, Have Increased Demand for DNA Analysis Beyond Laboratories’ Capacities

Based on a review of a selection of studies and discussions with DNA evidence stakeholders, we identified the following factors that are reported to have contributed to an increased demand for crime scene DNA analysis beyond laboratories’ capacities. As a result, these factors are believed to have helped contribute to increased backlogs: Recent scientific advancements have increased the quality of DNA analysis by allowing lab analysts to obtain DNA profiles from smaller amounts of biological evidence. This has increased the amount of evidence that is eligible to be analyzed and, as a result, has increased the demand for DNA testing.

One DNA evidence stakeholder was able to produce preliminary data demonstrating that, as a general trend, labs that decreased their turnaround time saw corresponding increases in requests from law enforcement. Other DNA stakeholders, including NIJ, made similar observations.

Increased awareness among law enforcement and the public Increased awareness among law enforcement officers of the value of DNA analysis in solving current and older cases has led to law enforcement agencies submitting more DNA evidence to labs for analysis. Further, NIJ and other stakeholder officials we interviewed stated that the volume of DNA profiles in CODIS has increased significantly over recent years. This, in turn, increased the usefulness of DNA evidence in testing suspect DNA profiles against a well-populated database of existing offenders. This usefulness has increased awareness among law enforcement personnel of CODIS, which contributes to increased demand for DNA analysis, thereby contributing to the backlog. Additionally, when deciding whether to submit DNA evidence for analysis, law enforcement and prosecutors may consider jurors’ expectations that DNA analysis is presented.

Recent legislation requiring Sexual Assault Kit (SAK) analysis State legislation requiring SAK analysis has caused an increase in demand for DNA analysis. As of July 2018, we identified at least 25 states that have enacted laws requiring law enforcement to submit for testing SAKs that come into law enforcement possession. Eleven of these states also required the submission for testing of previously untested SAKs. Twenty-one of these laws were passed in 2014 or later.

In addition to the factors that have contributed to increased demand, resource challenges and constraints on lab capacity are reported to have helped contribute to crime scene evidence backlogs. State and local labs generally receive appropriations from state or local governments and are subject to local funding priorities. Federal grants can help, but even combined federal and jurisdictional funding may not increase lab capacity enough to keep up with increases in demand. Additionally, these labs report facing lengthy hiring and training processes for forensic analysts, and often lose staff to private or federal labs which may offer higher pay, further limiting lab capacity for completing analysis.

Preliminary Results Show that DOJ Has Not Clearly Defined and Documented CEBR Grant Program Goals

DOJ’s NIJ has not defined CEBR program-wide goals in clear, specific, and measurable terms. We identified statements in NIJ and CEBR program documentation that communicated program-wide goals, but the documentation did not consistently identify the same goals or cite the same number of goals. For example, a stated goal of improving the quality of DNA testing was included in only 2 of 4 NIJ documents we reviewed. In addition, NIJ officials verbally clarified that the CEBR program has two goals, (1) to increase laboratory capacity for DNA analysis, and (2) to reduce backlogs of DNA evidence awaiting analysis. These differences can be seen across goal statements outlined in various NIJ sources as shown in table 1 below.

NIJ officials acknowledged that they do not have documentation that further defines the goals of the program in clear, specific, and measurable terms. These goals are specified as increasing laboratory capacity for DNA analysis and reducing backlogs of DNA evidence awaiting analysis. Officials provided an explanation as to what the goals mean. Specifically, officials stated that: Increasing lab capacity refers to increasing samples analyzed, reducing processing times, and increasing the number of DNA profiles uploaded into CODIS—all while either maintaining or increasing the quality of DNA analysis at labs.

Reducing backlogs refers to reducing the number of backlogged requests awaiting analysis by more than the number of requests that become backlogged during the same timeframe. Officials stated that although they believe the goal of reducing the crime scene evidence backlog is unachievable in the foreseeable future, they have kept it as a program goal because each year it is included in the appropriation language that supports the program.

However, these clarifications and definitions are not available in CEBR documentation, which is an indication that NIJ may not be using clear, specific, and measurable goals to guide program development or assess progress.

We continue to evaluate CEBR program goals and we are in the process of evaluating related CEBR performance measures as part of our ongoing work.

Preliminary Analysis Shows that OJP Has Established Controls for Conflicts of Interest Related to CEBR Grants, but Has Not Fully Established Controls Related to Lobbying

Our preliminary results show that OJP has controls to implement federal requirements associated with conflicts of interest and some controls related to lobbying that apply to both OJP CEBR grant administrators as well as recipients of grant funding; however, OJP has not fully established all appropriate controls related to lobbying.

OJP Has Established Controls for Conflicts of Interest Related to CEBR Grants

We found that OJP has established controls to implement federal conflicts of interest requirements that apply to OJP employees administering CEBR grants and CEBR grantees. For example, federal law prohibits government employees from participating personally and substantially in particular government matters, such as the administration of federal grants, which could affect their financial interests. We found that OJP has established an agency-wide ethics program and uses tools such as the DOJ Ethics Handbook and annual financial disclosure reports, among others, to help employees and their supervisors to determine whether they have potential conflicts of interest. See table 2 below for a list of the federal conflicts of interest requirements we identified, as well as our preliminary assessment of related OJP controls to ensure that the requirements are met.

OJP Has Some Controls for Lobbying as They Apply to Recipients of CEBR Grant Funds, but Has Not Fully Established All Appropriate Controls

We found that OJP has established some controls related to lobbying but has not fully established controls needed to meet applicable requirements. Specifically, federal law sets forth several requirements related to lobbying “certification” and “disclosure.” Lobbying certification refers to agreeing not to use appropriated funds to lobby, and lobbying disclosure refers to disclosing lobbying activities with respect to the covered federal action paid for with nonappropriated funds. Federal regulation requires recipients of all federal awards over $100,000 to file certification documents and disclosure forms (if applicable) with the next tier above, and to forward those same forms from the tier below if they issue subawards for $100,000 or more. In the case of CEBR grants, tiers include OJP, grantees, subgrantees, contractors under grantees and subgrantees, and subcontractors. Subawards include subgrants, contracts under grants or subgrants, and subcontracts.

We found that OJP had established controls to obtain lobbying certification documents and disclosure forms from grantees, but had not fully established controls to ensure grantees obtain these documents from tiers below them, see table 3 below.

OJP has established mechanisms to ensure it obtains lobbying certification documents and disclosure forms from grantees. Specifically, according to OJP, it requires that grant applicants electronically agree to the certification document during the application process; if applicants do not agree to it, they cannot move on in the process. OJP also requires that applicants submit the lobbying disclosure form as part of the grant application process. Upon submission, a grant manager reviews the form for completeness and content and checks a box in an application review checklist.

However, OJP has only partially established a mechanism to ensure that, for subawards over $100,000 (1) CEBR grantees obtain certification documents and disclosure forms, as applicable, from tiers below them, and (2) disclosure forms are forwarded from tier to tier until received by OJP. Specifically, OJP requires grant applicants to agree to the certification document set forth in regulation. This certification document, in turn, lists certification and disclosure requirements, and states that, “The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subgrants, contracts under grants and cooperative agreements, and subcontracts) and that all subrecipients shall certify and disclose accordingly.” However, the certification document does not state in clear terms what the specific requirements of the regulation are or how they are to be carried out.

OJP attorneys responsible for overseeing their implementation were not aware of specific requirements in the regulation. For example, they were not aware that disclosure forms were required to be forwarded from tier to tier until received by OJP. Additionally, 3 of 4 CEBR grantees we spoke with were not aware of one or more of these requirements.

Lastly, we found that OJP does not provide guidance to grantees to ensure they understand the requirements nor does OJP follow-up with grantees to ensure they are implementing them. The statute requires that federal agencies “take such actions as are necessary to ensure that the are vigorously implemented and enforced in agency.” As part of our ongoing work, we will continue to monitor and assess OJP’s compliance with statute and regulations related to grantee, subgrantee, and contractor lobbying disclosure requirements and make recommendations, as appropriate.

Chairman Grassley, Ranking Member Feinstein, and Members of the Committee, this concludes my prepared statement. I would be pleased to respond to any questions that you may have at this time.

GAO Contacts and Staff Acknowledgements

If you or your staff members have any questions about this testimony, please contact Gretta L. Goodwin, Director, Homeland Security and Justice at (202) 512-8777 or GoodwinG@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Key contributors to this testimony included Dawn Locke (Assistant Director), Adrian Pavia (Analyst-in-Charge), Stephanie Heiken, Jeff Jensen, Chuck Bausell, Daniel Bibeault, Pamela Davidson, Eric Hauswirth, Benjamin Licht, Samuel Portnow, Christine San, Rebecca Shea, Janet Temko-Blinder, and Khristi Wilkins.

This is a work of the U.S. government and is not subject to copyright protection in the United States. The published product may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.