ACLU Interested Persons Memo Expressing Concerns about H.R. 3214, the "Advancing Justice Through DNA Technology Act of 2003", which Includes the Innocence Protection Act

ACLU Interested Persons Memo Expressing Concerns about H.R. 3214, the "Advancing Justice Through DNA Technology Act of 2003", which Includes the Innocence Protection Act

            This memo outlines concerns with H.R. 3214, the "Advancing Justice Through DNA Technology Act of 2003."  In addition, please reference a detailed analysis of the provision in the bill, which indefinitely tolls the statutes of limitations for crimes which DNA implicates a particular individual. (See Tania Simoncelli's memorandum, H.R. 3214 and the Tolling of the Statutes of Limitations, November 6, 2003).  The ACLU would like to support this important legislation, because it would take the first step to improve the administration of justice through access to post-conviction testing for federal prisoners, increase the amount of compensation for those who are wrongfully convicted and provide $100 million each year for five years to train lawyers to defend and prosecute death penalty cases.  However, in order to pass a meaningful bill that would in fact improve the administration of justice, Congress must address the civil liberties concerns in Title I of the legislation.  

Title I of this bill would significantly expand the federal CODIS DNA database by permitting the inclusion of DNA for any federal felony as well as for state offenses where a person has been indicted or waived indictment.  Inclusion of DNA profiles for persons who have not been convicted of a crime in CODIS undermines the presumption of innocence by allowing for a person's DNA to be included in CODIS, with that of convicted felonies, before ever being tried or convicted of a crime.  In addition, Title I would indefinitely toll the federal statute of limitations in crimes involving DNA. This provision of the bill would jeopardize a person's ability to prepare their defense to a criminal case if they are not charged with a crime in a reasonable amount time after the offense takes place.   

H.R. 3214 passed the House on November 5, 2003 with several substantive changes from S. 1700 its Senate companion bill.  As a result of the substantive amendments to the final version of H.R. 3214, it will likely be the bill that is considered by the Senate rather than S. 1700.   Notably the version of the legislation that passed the House was improved by including language that would not permit the DNA of arrestees who have not been indicted nor waived indictment included in the Combined DNA Index System (CODIS) DNA database.  Unfortunately, the provision in this bill that would toll the statute of limitations for federal criminal offenses involving persons implicated by DNA eliminates the exception for federal sexual abuse crimes (Chapter 109A offenses) in the final House bill, which will jeopardizes even more defendants right to a fair trial.  

Title I: Rape Kits and DNA Evidence Backlog Elimination Act

Title I of this bill would inappropriately expand the federal CODIS DNA database.  Under current law, CODIS includes DNA profiles only of people convicted of serious violent federal crimes, and those convicted of qualifying state offenses[1].  The bill vastly expands the federal crimes for which DNA profiles would be contributed to the CODIS database to include any felony, sexual abuse crimes, crimes of violence, any attempt or conspiracy to commit the above crimes and qualifying military offenses.  

The CODIS-related provisions would significantly expand the scope of the persons whose DNA profiles would be collected by the federal government because, among other things, it would allow each state to determine whose DNA information would be included. This proposal would increase the class of people whose DNA is included in CODIS to persons convicted of any state crime and if state law allows, other individuals' DNA that is included in state databanks.  While the bill prohibits inclusion of DNA from persons who have been arrested but not indicted as well as those who voluntarily submit their DNA to be cleared of a crime, these exceptions do not sufficiently limit the unnecessary expansion of the database. In the future, states could decide that they wanted to submit DNA of any number of people, including those not charged with crimes: day care providers, immigrants, people with driver's licenses or even people with a particular disease.  

Although H.R. 3214 carves out an exception for persons arrested but not indicted, some states also include the DNA of juveniles and persons who commit some misdemeanors in their state DNA databases.  At least 32 states[2] include the DNA of juvenile offenders who commit sexual and serious violent crimes in their state databases.  These state policies undermine the juvenile court's fundamental principle of rehabilitation that has traditionally been promoted in courts and law enforcement by not maintaining permanent juvenile records for young people involved in the juvenile justice system.[3]  The rationale of sealing and expunging juvenile records is to give juveniles who come in contact with the juvenile court system a second chance to rehabilitate themselves by not having their record follow them into adulthood (i.e. employers and college or school officials having access to records). In addition, the most serious young offenders are tried as adults, thus they lose the protections of the juvenile justice system and their DNA would be included in the CODIS database under current law.  Expanding CODIS to permit juveniles' DNA to be included would further erode the rehabilitative and confidential nature of the juvenile justice system. 

While the government amassing a database of DNA profiles has various privacy implications, it is reassuring that this legislation requires that DNA samples that are voluntarily submitted to eliminate a person as a suspect in a crime will not be retained in the federal database. Unfortunately, once the government amasses DNA information, there are no laws that protect the privacy of this information or prevent the information from being used for non-forensic purposes.  The only way to protect the privacy of the DNA information is for Congress to specifically forbid any unit of government from using CODIS data for non-forensic purposes.  Also, biological samples used to create DNA profiles that are included in databases should be destroyed, but not the biological evidence taken from a crime scene. 

We recommend eliminating this provision of H.R. 3214 and maintaining the categories of federal and state offenses that are included in the federal database presently.  

Title I: Tolling of the Federal Statute of Limitations

Section 104 of the bill would amend Chapter 213 of Title 18 in the U.S. Code, which addresses statutes of limitations for various federal crimes, by indefinitely tolling the statute of limitations in crimes involving DNA. This section of the measure only amends the statute of limitations for federal crimes.  Under the bill, the statute of limitations would not begin to run until a person is implicated by DNA testing.  For example, if biological material was found at a crime scene in 2005, it might be tested and a DNA profile submitted to the CODIS DNA database in 2006.  But, the DNA might not be tied to a particular person until that person is tested and identified much later, say in 2035 -- for something completely unrelated.  Under the bill, in a non-capital case, that person could be tried for this crime as late as 2040 - 35 years after the offense was committed.  

In the above hypothetical, memories would have faded and alibi witnesses could have disappeared or passed away. Any errors that might have occurred by way of mishandling of the crime scene evidence or misinterpretation of DNA test results would be difficult if not impossible to uncover or resolve.  Biological evidence, if preserved, would have partially or completely degraded, rendering it unsuitable for retesting, and lab technicians and law enforcement officers involved in the initial collection and analysis of the evidence would no longer be available (See Tania Simoncelli's memorandum, H.R. 3214 and the Tolling of the Statutes of Limitations, November 6, 2003, attached).  The best way to remedy this civil liberties problem is to eliminate Section 104 from H.R. 3214. 

S. 1828 Advancing Justice Through DNA Technology includes modified version of Titles I and II of H.R. 3214

While there have been some improvements in the provision of H.R. 3214 that would expand CODIS in the version passed by the House, legislation that was recently introduce by Senator Jon Kyl S. 1828, would not only allow for state arrestees to be included in the federal database, but would also require federal arrestees to be incorporated in the database.  S. 1828 includes modified versions of Titles I and II of H.R. 3214, but does not include the most important part of the legislation Title III the Innocence Protection Act (IPA).  This bill ensures that a federal DNA database of people who are not convicted of crimes would be created. Also, this proposal would bar a person from having their DNA profile taken out of the database after a conviction was overturned or in the case of a person indicted of a crime, if the charges are dismissed or the person is acquitted.  This proposal is a step backwards in the effort to protect persons who have not been convicted of a crime from the stigma of having their DNA included in a database of convicted felons.

Title III: Innocence Protection Act 

Title III of H.R. 3214 would establish a procedure in federal court for federal prisoners to access DNA testing under certain circumstances and encourage states to provide such a process as well.  As of July 2003, thirty states had laws providing some access to DNA testing for convicted persons to support their claims of innocence. According to Peter Neufeld, Co-Director of the Innocence Project:

"These testing laws, however, vary widely in scope [and] substance. Some are comprehensive, state-funded testing programs open to all convicted persons with reasonable claims of innocence. Yet in others, the right to DNA testing is sharply limited by, for example, leaving decisions about testing to the sole discretion of prosecutors, or allowing testing only in a limited class of cases or under strict time limits. The states with sunset provisions provide such a narrow window of time in which to prepare and file DNA testing petitions that few convicted persons will be able to take advantage of them. Indeed, five of the post-conviction DNA access laws have already expired, within a year or two after their enactment, with no more than a handful of petitions filed in each state."[4]

The IPA would create a process by which post-conviction DNA testing would be available to people in prison for federal offenses who:

• swear under penalty of perjury that they are actually innocent of the Federal offense they are serving a sentence for or another Federal or state offense that would qualify them as a career offender.    
• establish that the specific DNA evidence was secured in relation to the investigation of the above Federal or State offense;  
• demonstrate that the DNA evidence has not previously been compared to the DNA of the  prisoner and that the prisoner did not waive his right to request DNA testing[5]or that previously tested DNA will be analyzed using a new method;  
• verify that the evidence is in the possession of the Government, that the chain of custody has been maintained and that the evidence has been retained in a manner that will allow testing;  
• establish that the DNA testing is reasonable, using sound methods;  
• show that the defense theory is consistent with an affirmative defense presented at trial and would establish actual innocence;  
• were convicted following a trial at which the identity of the perpetrator was at issue; (i.e. defendants who plead guilty are not eligible for post-conviction DNA testing);  
• through post-conviction DNA testing would produce new material evidence to support their defense and raise reasonable probability that the prisoner did not commit the crime; and   
• provide a DNA sample and show that the purpose of the request for DNA testing is to establish actual innocence and not delay the administration of justice.

Indigent prisoners may be appointed counsel to represent them through this post-conviction process.  Title III also states that it does not provide a basis for relief in any Federal habeas corpus proceeding. Thus, this legislation does not create an independent right to access federal court through the Federal habeas corpus process.  Nevertheless, the IPA does allow prisoners to file motions for a new trial or resentencing,[6] if DNA test results exclude the prisoner as the perpetrator of the crime.   Also, this section clarifies that the IPA does not affect a person's ability to seek DNA testing or post-conviction relief under any other law.  

In addition, the IPA authorizes $25 million over five years to states to help defray the cost of post-conviction DNA testing and $100 million each year over the same time period to train lawyers to defend and prosecute death penalty cases. The bill also specifies that states must equally allocate funding for training of prosecutors and defense lawyers.

Conclusion

The ACLU applauds the progress that is made by Title III of H.R. 3214, the IPA, to address the inadequacies in the capital punishment system in this country. Title III of this legislation is critical in light of the clear flaws in our nation's capital punishment system: 112 innocent people on death row have been exonerated in the past 30 years.   We plan to work with Congress to address our concerns about provisions in Title I of the legislation in an effort to support this important bill.

Attachment:  Tania Simoncelli, ACLU Science Fellow memorandum, H.R. 3214 and the Tolling of the Statutes of Limitations, (November 6, 2003)