Order Code RL32247
DNA Testing for Law Enforcement:
Legislative Issues for Congress
Updated January 19, 2006
Analyst in Social Policy
Domestic Social Policy Division
DNA Testing for Law Enforcement:
Legislative Issues for Congress
The analysis of deoxyribonucleic acid (DNA) evidence has been an important
tool in law enforcement. DNA analysis has significantly changed the way crime
scenes are investigated and how prosecutions are conducted. The Federal Bureau of
Investigation (FBI) started its DNA database in 1988. Since then, the FBI has led law
enforcement agencies throughout the United States to standardize DNA analyses to
be submitted into the FBI’s Combined DNA Index System (CODIS).
The collection of DNA for use in criminal investigations has grown much faster
than the resources to analyze it. As a result, many publicly funded laboratories across
the country have been experiencing difficulty in meeting the demand and reducing
the backlog of requests. Meanwhile, state and federal statutory regulations have been
enacted to require DNA samples to be taken from those convicted of certain criminal
offenses. During the 1990s and more recently, congressional concern over the need
for federal assistance to crime labs led to the enactment of several measures.
On March 11, 2003, the Bush Administration announced a major DNA
initiative. The Advancing Justice Through DNA Technology Act of 2003 (P.L. 108405) addressed many of the proposals raised in the Administration’s initiative,
including authorizing funding to eliminate state and federal DNA backlogs and
expanding a grant program to state and local governments to perform DNA analysis
of samples collected from convicted individuals and violent crime scenes, among
other things. The act also set forth conditions under which federal prisoners could
obtain post-conviction DNA testing and authorizes funding for representational
support for both the prosecution and defense in capital cases.
The 109th Congress passed the Violence Against Women and Department of
Justice Reauthorization Act of 2005 (P.L. 109-162). Among other provisions, the act
broadens the categories of individuals who are subject to DNA testing to include
those who are arrested and detained under federal jurisdiction. Other legislation has
been introduced but has not seen congressional action. Such legislation would
require the DNA samples of sex offenders to be included in CODIS who are required
to register (S. 1220); permit the Attorney General to make grants to train and employ
additional prosecutors (S. 1727/H.R. 1602); require the Attorney General to establish
and maintain a DNA database for sex offenders (H.R. 244 and H.R. 2423/S. 1086);
authorize appropriations to eliminate the DNA backlog (H.R. 3404); and require
DNA samples from federal inmates who are released on parole (H.R. 3072). This
report will be updated as legislation warrant.
Current Legislative Developments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Current Federal Statutory Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
The DNA Identification Act of 1994 (P.L. 103-322) . . . . . . . . . . . . . . . 3
The Antiterrorism and Effective Death Penalty Act of 1996
(P.L. 104-132) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Crime Identification Technology Act of 1998 (P.L. 105-251) . . . . . . . 4
The DNA Analysis Backlog Elimination Act of 2000
(P.L. 106-546) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Paul Coverdell National Forensic Science Improvement Act
of 2000 (P.L. 106-561) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The USA PATRIOT Act (P.L. 107-56) . . . . . . . . . . . . . . . . . . . . . . . . . 5
Prosecutorial Remedies and Other Tools to End the Exploitation
of Children Today Act of 2003 (P.L. 108-21) . . . . . . . . . . . . . . . . 5
Justice for All Act of 2004 (P.L. 108-405) . . . . . . . . . . . . . . . . . . . . . . 5
Legislation in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Violence Against Women and Department of Justice Reauthorization
Act of 2005 (P.L. 109-162) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Selective Legislative Issues for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Broadening the Database . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Comprehensiveness of the National DNA Index . . . . . . . . . . . . . . . . . . . . . . 9
Post-Conviction DNA Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
DNA Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Other Proposed Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
S. 1220 (Dodd) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
S. 1727 (Vitter)/ H.R. 1602 (Gallegly) . . . . . . . . . . . . . . . . . . . . . . . . 10
H.R. 244 (Jackson-Lee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
H.R. 3404 (Andrews) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
H.R. 2423 (Foley)/ S. 1086 (Hatch) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
H.R. 3072 (Davis) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
DNA Testing for Law Enforcement:
Legislative Issues for Congress
Current Legislative Developments
On January 5, 2006, the Violence Against Women and Department of Justice
Reauthorization Act of 2006 (P.L. 109-162) was enacted. Title X of the act broadens
the federal government’s authority to collect DNA sample from individuals for
inclusion in the FBI’s Combined DNA Indexing System (CODIS).
Deoxyribonucleic acid, or DNA, is the fundamental building block for an
individual’s entire genetic makeup. DNA is a powerful tool for law enforcement
investigations because each person’s DNA is different from every other individuals
(except for identical twins). By analyzing selected DNA sequences (called markers),
a forensic laboratory can develop a profile to be used in identifying a person from a
DNA can be extracted from a number of biological tissues, such as hair, bone,
teeth, saliva, and blood. Because the human body contains so many copies of DNA,
even a minuscule amount of body fluid or tissue can yield useful information.
Statutory provisions authorize criminal justice officials to collect DNA samples from
federal offenders,3 District of Columbia offenders,4 and military offenders.5 Federal
law also features a grant program under which DNA-identifying information
collected by state law enforcement officials is fed into CODIS and available to law
enforcement officials online.6 Obtaining a DNA sample from a suspect or convicted
offender does not have to be an invasive procedure; it can be as simple as a swab of
the inside of the mouth with a Q-tip to obtain some saliva, if applicable law permits
this method of collection.
This report was previously written by CRS Analyst Cindy Hill.
See CRS Report RL30717, DNA Identification: Applications and Issues, by Eric A.
42 U.S.C. 14135a.
42 U.S.C. 14135b.
10 U.S.C. 1565.
42 U.S.C. 14131-14135.
Currently, there are backlogs in analyzing collected DNA, both in state and
federal forensic laboratories. As a result, these profiles are not added into DNA
databases in a timely manner. Backlogs include casework samples, which consist of
DNA samples obtained from crime scenes, victims, and suspects in criminal cases;
and backlogs of states’ convicted offender samples, which consist of DNA samples
obtained from convicted offenders who are incarcerated or under court supervision.
Additionally, the FBI’s Federal Convicted Offender Program (FCOP), which is
responsible for processing and analyzing offender or arrestee samples from the
Federal Bureau of Prisons, the Federal probation offices, and the Court Services and
Offender Supervision Agency for the District of Columbia, also faces backlogs of
offender DNA samples.
Although progress has been made, the National Institute of Justice (NIJ)
estimates that up to 90% of the DNA samples in this country identified for testing
had not yet made it to a laboratory, with new samples sitting at police stations
waiting for criminalists to complete other cases.7 NIJ also estimated that there was
a backlog of over half a million total crime samples nationwide that had not been
tested, with over 221,000 of those being homicide and rape cases.8
Some city and state forensic laboratories have been the subject of media
attention due to inefficiencies and test results that have been called into question.
With the backlog in samples around the country and the potential post-conviction
uses of DNA testing (including the possibility of freeing prisoners who were
erroneously convicted), Congress has turned its attention to DNA and its implications
when used during a criminal investigation and prosecution. This report discusses
possible issues that may be of concern to Congress.
Few would argue that DNA has become the most significant weapon in crime
detection since the introduction of fingerprinting in the early 1900s. State and federal
DNA databases have proved instrumental in solving crimes, reducing the risk of
convicting the wrong person, and establishing the innocence of those wrongly
convicted. The FBI has chosen 13 markers to serve as the basis for entry into the
federal database, the National DNA Index System (NDIS), with the intention that all
forensic laboratories would be equipped to handle these 13 markers. Collectively,
the 13 markers provide great discriminatory power. The chance that two unrelated
people would have the same profile is judged to be extremely small — less than one
in hundreds of trillions.9
DNA evidence is used to solve crimes in two ways:
See Attorney General Report to Congress, National Forensic DNA Study Report, Final
Report, Dec. 12, 2003, p. 3, [http://www.ojp.usdoj.gov/nij/pdf/dna_studyreport_final.pdf].
See NIJ, The Future of Forensic DNA Testing: Predictions of the Research and
Development Working Group, NCJ 183697, Nov. 2000.
In cases where a suspect is known, a sample of that person’s DNA
can be compared to biological evidence found at a crime scene. The
results of this comparison may then help establish whether the
suspect was at the crime scene or whether he/she committed the
In cases where a suspect is not known, biological evidence from the
crime scene can be analyzed and compared to offender profiles
contained in existing DNA databases to assist in identifying the
perpetrator. Through the use of DNA databases, biological evidence
found at one crime scene can also be connected to other crime
scenes, linking them to the same perpetrator or perpetrators.
According to the FBI, more than 8,000 DNA samples from the scenes of
unsolved crimes have been matched with samples taken from inmates after their
imprisonment. An additional 3,000 crime-scene samples have been matched to
unidentified suspects who remain at large.10
Current Federal Statutory Law
As early as the 1980s, states began enacting laws that required DNA samples
from those offenders convicted of sexual offenses and other violent crimes. The
samples were then analyzed and their profiles entered into state databases.
Meanwhile, the FBI Laboratory convened a working group of federal, state and local
forensic scientists to establish guidelines for the use of forensic DNA analysis in
laboratories. The group proposed guidelines that are the basis of present national
quality assurance standards, and it urged the creation of a national DNA database.11
The criminal justice community began to utilize DNA analyses more often in
criminal investigations and trials, and Congress enacted legislation to better define
how DNA could be used. During the 1990s and more recently, congressional
concern over the need for federal assistance for crime labs led to the enactment of
several measures. The following section summarizes current federal law as it pertains
to DNA used in a criminal justice capacity.
The DNA Identification Act of 1994 (P.L. 103-322). The DNA
Identification Act of 1994 is a subtitle of the Violent Crime Control and Law
Enforcement Act of 1994. It was enacted to improve the capabilities and capacity of
state and local forensic DNA laboratories to support the investigation and
prosecution of violent crime. The act did the following: (1) provided funding to
John Soloman, “AP: FBI’s DNA Database Gets Heavy Use,” Associated Press Online,
Mar. 9, 2004.
Statement of Dwight E. Adams, Deputy Assistant Director, Laboratory Division, Federal
Bureau of Investigation, in U.S. Congress, House, Government Reform Committee,
Subcommittee on Government Efficiency, Financial Management and Intergovernmental
Relations, How Effective are State and Federal Agencies Working Together to Implement
the Use of New DNA Technologies?, hearing, 107th Cong., 1st sess., Mar. 29, 2004, pp. 53-54,
improve the quality and availability of DNA analyses for law enforcement
identification purposes; (2) required quality assurance and proficiency testing
standards; (3) required an FBI index to facilitate law enforcement exchange of DNA
identification information; and (4) required privacy protections and proficiency
standards for the FBI regarding DNA.
The Antiterrorism and Effective Death Penalty Act of 1996 (P.L. 104132). Section 811(b) of the Antiterrorism and Effective Death Penalty Act of 1996
authorized the Attorney General, in consultation with the Director of the FBI, to
make grants available to eligible states in order to establish, develop, update, or
upgrade the capability to analyze DNA in a forensic laboratory in ways that are
compatible and integrated with the Combined DNA Identification System (CODIS)12
of the FBI, among other things. As a condition, states were required to take DNA
samples from convicted violent sexual offenders.
Crime Identification Technology Act of 1998 (P.L. 105-251). The
Crime Laboratory Improvement Program (CLIP) was established under the Crime
Identification Technology Act (CITA) of 1998. CITA authorized funding for
programs to establish, develop, update, or upgrade “the capabilities of forensic
science programs and medical examiner programs related to the administration of
criminal justice ... including programs ... relating to the identification and analysis of
The DNA Analysis Backlog Elimination Act of 2000 (P.L. 106-546).
The DNA Analysis Backlog Elimination Act of 2000 authorized the Attorney
General to make grants available to states to carry out DNA analyses. As a
requirement to receive grant funding, recipients must enter the DNA samples taken
from individuals convicted of certain crimes and crime scenes into CODIS. Under
the act, the grants could be used to increase the capacity of laboratories to carry out
DNA analyses. It also provided for the collection and use of DNA identification
information from certain federal, District of Columbia, and armed forces offenders
in custody or under federal supervision, and established submission of a DNA sample
as a condition of probation, supervised release, or parole.13
The Paul Coverdell National Forensic Science Improvement Act of
2000 (P.L. 106-561). The Paul Coverdell National Forensic Science Improvement
Act of 2000 authorized funding to improve the quality, timeliness, and credibility of
CODIS contains local, state and national DNA databases that are linked electronically,
allowing the comparison of DNA profiles stored in differing locations and was authorized
in the DNA Identification Act of 1994 (P.L. 103-322). CODIS uses two indices to generate
investigative leads in crimes where there is DNA evidence. The Convicted Offender Index
contains profiles of individuals convicted of violent crimes. The Forensic Index contains
DNA profiles from crime scene evidence, such as semen and blood. To ensure privacy,
CODIS does not include such things as social security numbers, criminal history, or caserelated information. As of Sept. 2004, the NDIS (the national component of CODIS) holds
just over 1.88 million samples, at [http://www.fbi.gov/hq/lab/codis/national.htm].
42 U.S.C. 14135a for federal offenders; 42 U.S.C. 14135b for District of Columbia
offenders; and 10 U.S.C. 1565 for military offenders.
forensic science services for criminal justice purposes through two sources: (1)
Edward Byrne Memorial Formula grants,14 and (2) the Paul Coverdell National
Forensic Sciences Improvement Grants.
The USA PATRIOT Act (P.L. 107-56). Section 503 of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act expanded the list of “qualified offenses” to permit DNA
collection from those convicted of a federal crime of terrorism, a federal crime of
violence, or of attempt or conspiracy to commit such a crime of terrorism or violence.
Prosecutorial Remedies and Other Tools to End the Exploitation of
Children Today Act of 2003 (P.L. 108-21). Among other provisions, the
PROTECT Act authorizes indictments identifying an unknown defendant by a DNA
profile (“John Doe/DNA indictments”) in federal sex crimes. If the John Doe
indictment is issued within five years of the offense, there is no applicable statute of
limitations and the statutory speedy trial requirements do not begin to run until after
the defendant is arrested or served with a summons for the offense.
Justice for All Act of 2004 (P.L. 108-405).15 The Justice for All Act
reauthorized an existing grant program that provides funding to states to assist with
eliminating certain types of DNA backlogs. The act amended current law16 by
providing formula grants to state and local governments to perform DNA analysis of
samples collected from convicted individuals and violent crime scenes, including
sexual assaults. It also amended current law17 by allowing states to include in the
CODIS the DNA profiles of persons whose DNA samples have been collected under
applicable legal authorities, including those authorized by state law as well as all
felons convicted of federal crimes and qualifying military offenses. CODIS
The Consolidated Appropriations Act, FY2005 (P.L. 108-447) consolidated the Edward
Byrne Memorial Formula (Byrne Formula) grant and Local Law Enforcement Block grant
programs into an Edward Byrne Memorial Justice Assistance Grant (JAG) program. Under
the Byrne Formula grant program, funds must be used to improve criminal justice systems
in order to reduce violent crime, the demand for illegal drugs, or the availability of such
drugs. Enhancing state and local forensic laboratories falls under the multi-purpose
objective of eligible activities.
In Mar. 2003, the Bush Administration proposed an initiative that was designed to (1)
eliminate all state and federal DNA backlogs in DNA testing; (2) expand DNA databases;
and (3) upgrade testing equipment. The Administration also supported expanding the
collection of DNA to people who have been arrested but not convicted of a crime and adding
them to CODIS. See the following links: Office of the President, Advancing Justice
Through DNA Technology, Mar. 2003, available at [http://www.usdoj.gov/ag/dnapolicy
book_cov.htm]; and in Department of Justice Oversight: Funding Forensic Sciences —
DNA and Beyond, hearing before the Subcommittee on Administrative Oversight and the
Courts of the Senate Committee on the Judiciary, 108th Cong., 1st sess. (2003), available at
See the DNA Analysis Backlog Elimination Act of 2000 (P.L. 106-546).
See the DNA Identification Act of 1994 (42 U.S.C. 14132).
“keyboard searches” are also permitted by authorized state or federal users.18 The act
authorized $151 million in appropriations for the grant program for each year,
The act amended current law by delaying or suspending any otherwise
applicable federal statute of limitations until after the completion of a DNA test
which implicates an actual individual.19 It also increased the penalties for misuse of
DNA analysis;20 and allowed grants to take the form of contracts as well as vouchers
to private laboratories in order to eliminate the backlog of DNA samples awaiting
testing and analysis.21
Title III of the act authorized appropriations of $15 million for each year,
FY2005-FY2009, for DNA research and development purposes. Title III also
established the National Forensic Science Commission (Commission). The
Commission was tasked with developing recommendations for maximizing the use
of current forensic technologies in solving crimes and protecting the public, and in
identifying potential scientific advancements that may be used to further assist law
enforcement personnel, among other things. It authorized $500,000 in appropriations
for each year, FY2005-FY2009, to fund the Commission. Title III also authorized
funding of $12.5 million each year, FY2005-FY2009, for training in the collection,
handling, and use of DNA evidence, including training and education for police law
enforcement, correctional personnel, and court officers; and $30 million a year
(FY2005- FY2009) for a grant program to provide forensic exams in sexual assault
Among other provisions, Title III of the act required professional accreditation
of DNA processing laboratories within two years of passage of the act. It authorized
appropriations of $42.1 million each year, FY2005-FY2009, for FBI DNA programs
and activities. It also authorized $2 million each year, FY2005-FY2009, for grants
that promote the use of forensic DNA technology to identify missing persons and
unidentified human remains. Additionally, the act made it a criminal penalty to
disclose a DNA sample or its results to a person who is not authorized to receive it
or for someone to obtain or use a DNA sample or result without such authority. The
act also made Paul Coverdell Forensic Science Improvement grants (Coverdell
grants)22 available for the elimination of backlogs relating to the forensic analysis of
evidence including that involving firearms, latent prints, toxicology, controlled
substances, pathology, documents and traces. It authorized appropriations of $20
A keyboard search is an online effort to match a DNA sample that can be collected under
state law but not added to CODIS (e.g., an arrest sample) with a DNA sample in CODIS
(e.g., samples collected from convicted offenders or at a crime scene).
Amends Chapter 213 of Title 18 of the U.S.C.
Amends 42 U.S.C. 14133(c)(2).
Amends §2(d)(3) of the DNA Analysis Backlog Elimination Act of 2000 (42 U.S.C.
42 U.S. C. 3797m.
million for each year, FY2007-FY2009, for the grants.23 With respect to the
Coverdell grants, the act required potential grant recipients to certify that they have
developed a plan to conduct independent external investigations into allegations that
may arise pertaining to employee misconduct or negligence. It also required grant
recipients to undergo external audits proving their compliance with the standards set
forth by the Director of the FBI. The act also required the Attorney General to report
to Congress on the implementation of the title within two years.
Title IV of the Justice for All Act, the Innocence Protection Act, amended
current law by requiring the Attorney General to provide DNA testing of material
evidence for federal prisoners who assert their innocence. Among other provisions,
the act set forth conditions under which federal prisoners could obtain postconviction DNA testing and a requirement that the government preserve such
biological evidence, unless otherwise specified under the act. In addition to federal
post-conviction DNA testing, the act required the Attorney General to establish a
grant program for states to “... to help defray the costs of post-conviction DNA
testing.”24 The act also established incentive grants to states to encourage DNA
testing of offenders sentenced to death by an accredited laboratory. As a condition
for receiving the grant, states must develop plans to ensure that there is prompt DNA
testing of people who may have been wrongly convicted, while at the same time
ensuring that procedures are in place to discourage frivolous testing. In addition to
the grant program, the act established post-conviction DNA testing standards and
procedures for federal offenders who could not have obtained such forensic testing
at the time of their trials.
The act required the Attorney General to submit DNA test results to the National
DNA Index System under the following circumstances:
if the current test results are inconclusive;
if the results show that the offender was the source of the DNA
if the results show that the offender’s DNA matches the DNA
collected from another offense.
The act required that if the results from the DNA sample of the offender do not match
the DNA evidence sample or that of another offense, the DNA sample of the offender
must be destroyed. The act also specified who should incur the cost of the testing
under which circumstances and established a threshold for granting a motion for a
The Innocence Protection Act also authorized grants to states for the following:
(1) to improve the representation of indigent defendants by defense attorneys in
capital cases; and (2) to improve the ability of prosecutors to represent the public in
42 U.S.C. 3793(a)(24).
P.L. 108-405, §412.
Legislation in the 109th Congress
Several pieces of legislation have been introduced in the 109th Congress,
however, only two bills have receive congressional action, as discussed below. Other
pieces of legislation that have been introduced in the current Congress are discussed
later in the report.
Violence Against Women and Department of Justice
Reauthorization Act of 2005 (P.L. 109-162)
Title X of P.L. 109-162, the DNA Fingerprinting Act of 2005, made several
changes to current law. Among other provisions, the act authorizes federal
authorities to take DNA samples from larger categories of individuals, including
those who are arrested and detained, and include the DNA analysis in the Federal
Bureau of Investigation’s FBI’s Combined DNA Index System (CODIS). The act,
however, requires the Director of the FBI to expunge the DNA analysis from CODIS
of arrestees for whom the Attorney General receives a certified copy of a final court
order that establishes the charge has been dismissed, resulted in an acquittal, or that
no charge was filed within the applicable time period. The act also requires the
Director of the Federal Bureau of Investigation to expunge the DNA analysis from
CODIS of individuals whose convictions have been overturned. A similar measure
was previously passed in the House on September 14, 2005 (see Title II of the
Children’s Safety Act of 2005, H.R. 3132).
Selective Legislative Issues for Congress
While there is opposition from some civil libertarians on the broad use of DNA
by law enforcement, proponents contend that by having a national DNA database or
a system that coordinates multiple databases such as CODIS may, in some cases,
actually protect those wrongfully accused or even convicted. Nonetheless, there are
a number of issues that arise when discussing broadening the DNA database. In
addition to DNA database-related issues, other issues concerning the use of DNA for
law enforcement purposes are also present, as discussed below.
Broadening the Database
While all states collect samples from some categories of convicted offenders,
they vary in the types of crimes for which they collect DNA samples — with the
trend toward broader sample collection. A number of states collect samples from
juveniles adjudicated delinquent on the basis of various crimes. A few collect
samples from anyone arrested (not just convicted offenders). A substantial number
of states have enacted legislation authorizing the collection of DNA samples from all
offenders convicted of a felony. P.L. 108-405 expands the categories of convicted
federal offenders from whom the collection of DNA samples is authorized and P.L.
109-169 further expands the categories of individuals who are eligible to have their
DNA collected to include arrestees, see discussion above.
Expanding the national database to include persons convicted of lesser crimes
or even arrestees could potentially increase the number of crimes solved through its
use. However, the increased use and inclusiveness of DNA databases across the
country raises several concerns. While other crimes may be solved by expanding the
categories of offenders included in DNA databases, at what point does the cost
associated with the additional DNA samples to be analyzed outweigh the benefit?
Moreover, expanding the number of samples that need to be processed could add to
the already taxed forensic science budgets of many states.
Comprehensiveness of the National DNA Index
Should all DNA profiles collected by states be added into the national database?
The statute governing the national DNA index allows the inclusion of DNA profiles
of “persons convicted of crimes;”25 however it does not permit the inclusion of all
DNA profiles from samples collected under applicable state authorities, such as those
from adjudicated juveniles or individuals arrested but not convicted of crimes.
Because what can be included in the national DNA database is narrower than the
scope of DNA sample collection under some state statutes, it has been argued that the
effectiveness of the national DNA index is hindered.
For example, most states collect DNA samples from some categories of
adjudicated juvenile delinquents. Some states have authorized DNA sample
collection from certain arrestees on a categorical basis. These states can collect DNA
samples and include the resulting DNA profiles in their own databases; however,
they cannot submit this information to be entered into the national DNA index. P.L.
108-405 allows for the submitting jurisdictions to include any DNA profile from
persons from whom they lawfully collected samples. Critics, however, have voiced
strong concerns that such testing would violate constitutional rights to privacy and
protections against illegal searches and seizures.
Post-Conviction DNA Testing
Most states have made provisions for post-conviction DNA testing. In 2003,
the Administration proposed to establish post-conviction DNA testing standards and
procedures for federal prisoners who could not have obtained such forensic testing
at the time of their trials. Under the proposal, procedures would be implemented in
order to ensure that the use of DNA evidence could demonstrate innocence of the
crime for which the person was convicted because he or she was mistakenly
identified. P.L. 108-405 created the Kirk Bloodsworth Post-conviction DNA Testing
Grant Program, which awards grants to states to help defray the cost of postconviction DNA testing. Participation in the program, however, is voluntary.
Despite several cases where laboratories mishandled DNA evidence, few states
require accreditation to specified standards. In its report, Census of Publicly Funded
42 U.S.C. 14132(a)(1).
Forensic Crime Laboratories, 2002, the Bureau of Justice Statistics noted that 71%
of publicly funded forensic crime laboratories in 2002 were accredited by some type
of organization.26 The Administration’s DNA initiative would have required every
lab to be accredited under a uniform system, with practices inspected and evaluated
by independent inspectors. P.L. 108-405, however, permits only laboratories that (1)
have been accredited by a nonprofit professional organization of persons actively
involved in the forensic science field and (2) undergo external audits to prove that
they are in compliance with the standards set forth by the Director of the FBI, to
submit DNA samples for inclusion in CODIS.
Other Proposed Legislation
In addition to P.L. 109-162 discussed earlier, additional bills have been
introduced in the 109th Congress regarding DNA testing for law enforcement
purposes, see discussion below.
S. 1220 (Dodd). The Prevention and Recovery of Missing Children Act of
2005 would revise the Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Act to require the responsible official to obtain
fingerprints and a DNA sample from a sex offender who is required to register,
unless such samples were collected within the three previous months. The bill was
introduced on June 9, 2005, and referred to the Senate Committee on the Judiciary.
S. 1727 (Vitter)/ H.R. 1602 (Gallegly). The Grants for DNA Backlog
Prosecution Act would amend current law by allowing the Attorney General to make
grants to train and employ personnel to help prosecute cases cleared through use of
funds provided for DNA backlog elimination.27 S. 1727 was introduced on
September 20, 2005 and referred to the Senate Committee on the Judiciary. H.R.
1602 was introduced on April 13, 2005, and referred to the relevant committees.
H.R. 244 (Jackson-Lee). The Save Our Children: Stop the Violent
Predators Against Children DNA Act of 2005 directs the Attorney General to
establish and maintain a database solely for collecting DNA information with respect
to violent predators against children. The bill was introduced on January 6, 2005,
and referred to the relevant committees. A hearing was were held on the bill on June
H.R. 3404 (Andrews). The DNA Database Completion Act of 2005 would
amend the DNA Analysis Backlog Elimination Act of 200028 by authorizing
appropriations for grants to eligible states for DNA analysis. The bill was introduced
on July 22, 2005, and referred to the House Committee on the Judiciary.
Bureau of Justice Statistics, Census of Publicly Funded Forensic Crime Laboratories,
2002, Feb. 2005, p. 10, found online at [http://www.ojp.usdoj.gov/bjs/pub/pdf/cpffcl02.pdf].
See §206 of P.L. 108-405.
H.R. 2423 (Foley)/ S. 1086 (Hatch). The Jacob Wetterling, Megan Nicole
Kanka, and Pay Lychner Sex Offender Registration and Notification Act would direct
the Attorney General to establish and maintain a database to manage DNA
information regarding individuals convicted of a listed offense against a minor. On
June 3, 2005, H.R. 2423 was introduced and referred to the relevant committees and
on June 9, 2005, subcommittee hearings were held. S. 1086 was introduced on May
19, 2005, and referred to the Senate Committee on the Judiciary.
H.R. 3072 (Davis). Section 4209 of H.R. 3072 would require the U.S. Parole
Commission to impose as a condition of parole that the parolee cooperate in the
collection of a DNA sample if the collection of such a sample is authorized under