CD158: Rapid DNA Act

Since 1994, the FBI has maintained a database with samples of DNA taken from convicted criminals in order to match those samples with DNA collected at crime scenes. However, over the course of the last two decades, the DNA database has expanded to include many more people. In this episode, we explore the expansion of DNA collection and storage by law enforcement and examine a new law that will further that trend.

Later in the episode, get an update on Congress’s progress in meeting their multiple September 30th deadlines.


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Bills Outline

H.R. 510: Rapid DNA Act of 2017

  • Orders the FBI Director to create standards and procedures for the use of Rapid DNA machines and the DNA analyses they create.
  • Expands the DNA samples allowed to be stored to include those prepared by any criminal justice agency using Rapid DNA machines that are approved by the FBI.

H.R. 601: Continuing Appropriations Act, 2018 and Supplemental Appropriations for Disaster Relief Requirements Act, 2017

Division A: Reinforcing Education Accountability in Development Act
  • Official U.S. policy is now to partner with developing countries and “donors, multilateral institutions, the private sector, and nongovernmental and civil society organizations, including faith-based organizations” to promote education programs and activities to prepare individuals to be “productive members of society and the workforce”
    • “Assistance provided under this section to support programs and activities under this subsection shall be aligned with and advance United States foreign policy and economic interests.”
Division B: Supplemental Appropriations for Disaster Relief Requirements Act, 2017
  • Appropriates $7.4 billion for disaster relief, as long as President Trump officially approves it.
  • Authorizes the Small Business Administration to lend $450 million for disaster rebuilding but half of that is allowed to be for administrative expenses
  • Appropriates and additional $7.4 billion for housing and infrastructure in disaster zones
    • Includes a provision that says the recipients of funds “may adopt, without review or public comment, any environmental review, approval, or permit performed by a Federal agency, and such adoption shall satisfy the responsibilities of the recipient with respect to such environmental review, approval or permit.”
Division C: Temporary Extension of Public Debt Relief
  • Suspends the debt ceiling until December 8, 2017.
Division D: Continuing Appropriations Act, 2018

Additional Reading


References


Sound Clip Sources

Hearing: Federal Bureau of Investigation Oversight, Senate Judiciary Committee, December 9, 2015.

Witness: James Comey – Director, FBI

Timestamps & Transcripts

  • 5:07:58 Sen. Orrin Hatch (UT): Last week I introduced bipartisan legislation with Senators Feinstein, Lee, and Gillibrand to update our nation’s laws to take account of this exciting new technology. Now, Rapid DNA devices—they’re self-contained, they’re fully automated instruments that can be placed in booking stations, and they can both develop a DNA profile from a cheek swab and compare the results against existing profiles in less than two hours. Now, my bill, the Rapid DNA Act of 2015, would allow law enforcement officials using FBI-approved Rapid DNA instruments to upload profiles generated by such devices to the FBI’s Combined DNA Index System and perform database comparisons. Director Comey, you’ve spoken in the past about Rapid DNA and how this technology will help law enforcement. Do you believe that Rapid DNA technology is important, how will it impact law enforcement, and do you believe Congress should pass legislation authorizing its use within standards and guidelines promulgated by your agency? Director James Comey: Yeah, that authority that’s in your bill would help us change the world in a very, very exciting way, that allow us, in booking stations around the country, if someone’s arrested, to know instantly, or near instantly, whether that person is the rapist who’s been on the loose in a particular community before they’re released on bail and get away, or to clear somebody, to show that they’re not the person. It’s very, very exciting. We are very grateful that we’re going to have the statutory authorization if that passes to connect those Rapid DNA technologies to the national DNA database. Hatch: Well, thank you. My bill, the Rapid DNA Act, will not affect when or under what circumstances law enforcement collects DNA samples. These decisions would be governed by state or other federal law. What it will do is affect where samples are processed and how quickly they’re processed. Now, Mr. Director, what would you say to individuals who may be concerned that Rapid DNA technology will raise privacy concerns, and what would you say to individuals who may be concerned that this technology could affect the integrity of FBI’s Combined DNA Index System, or CODIS? And I would note that my bill restricts access to CODIS to FBI-approved Rapid DNA instruments operated in accordance with FBI-issued standards and procedures. Comey: The first—you said it well, Senator: folks need to understand this isn’t about collecting DNA from more people. It’s about the DNA that’s collected when someone is arrested, being able to be analyzed much more quickly, that can show us in some cases this is the wrong person or can show us in some cases this is someone we have to be very worried about. That is good for our justice system as a whole. And you’re exactly right. The national database, the CODIS database, is the gold standard. This legislation does not make it any—water down the standards that are applied before a DNA result can be pressed against that database. We’re still going to have high standards. We’re still going to require that this is the gold standard for identification in the United States.
Hearing: H.R. 320, the “Rapid DNA Act”, House Judiciary Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, June 18, 2015.

Witnesses:

  • Amy Hess – Executive Director of Science & Technology at the FBI
  • Jody Wolf – President of the American Society of Criminal Laboratory Directors
  • Natasha Alexenko – Founder of Natasha’s Justice Project

Timestamps & Transcripts

  • 6:05 Amy Hess: All 50 states, Puerto Rico, the U.S. Army’s Criminal Investigation Laboratory, and the FBI contribute DNA records to and participate in NDIS, which contains almost 14 million offender or arrestee DNA records and over 630,000 forensic or crime scene DNA records.
  • 11:06 Jody Wolf: Currently, these devices are best suited for use with single-source, high-quantity biological samples such as referenced standards of blood or saliva from known individuals, thus limiting its usefulness for complex crime scene samples of more than one person. These instruments also currently can’t analyze trace amounts of DNA. Consequently, these instruments are not designed for the routine testing of evidence types found in rape kits and will not help with the reduction of rape kit backlogs.
  • 22:03 Rep. Bob Goodlatte (VA): Would this legislation help speed this up a lot? Jody Wolf: Well, comparing 90 samples utilizing Rapid DNA would take almost 27 hours. Using the—processing it using a traditional existing technology would take 7 to 8 hours. So the limitation with the Rapid DNA is that you can only run 5 samples at a time, whereas on current technology, we can run 24 samples at a time. To process 90 samples utilizing Rapid would take 27 hours. Using existing technology would take 7 to 8. Same result. Goodlatte: So do you think that this is a good thing for people to have the option here, or not? Wolf: It depends on your goal. The advantage that Rapid DNA has is that you have that answer while the person is still in the booking station. With traditional databasing, there’s a delay because you have to transport the sample from point of collection to a laboratory for analysis.
Supreme Court Argument: Maryland v. King, February 26, 2013.

Witnesses

  • Katherine Winfree – Chief Deputy Attorney General of Baltimore, MD
  • Michael Dreeben – Deputy Solicitor General of the Department of Justice

Timestamps & Transcripts

Part 1

  • 3:24 Katherine Winfree: The cornerstone of our argument is that when an individual is taken into custody, an individual is arrested on a probable cause—a probable-cause arrest—that person, by virtue of being in that class of individuals whose conduct has led the police to arrest him on—based on probable cause, surrenders a substantial amount of liberty and privacy. Justice Elena Kagan: But, Ms. Winfree, that can’t be quite right, can it? I mean, such a person—assume you’ve been arrested for something, the state doesn’t have the right to go search your house for evidence of unrelated crimes. Unknown Speaker: Justice Kagan. Kagan: Isn’t that correct? Winfree: That’s correct, Justice Kagan. Kagan: Doesn’t have the right to go search your car for evidence of unrelated crimes. Winfree: That’s correct. Kagan: Just because you’ve been arrested doesn’t mean that you lose the privacy expectations and things you have that aren’t related to the offense that you’ve been arrested for. Winfree: That’s correct, but what we’re seizing here is not evidence of crime. What it is, is information related to that person’s DNA profile. Those 26 numbers— Kagan: Well—and if there were a real identification purpose for this, then I understand that argument. But if it’s just to solve cold cases, which is the way you started, then it’s just like searching your house to see what’s in your house that could help to solve a cold case. Winfree: Well, I would say there’s a very real distinction between the police generally rummaging in your home to look for evidence that might relate to your personal papers and your thoughts. It’s a very real difference there than swabbing the inside of an arrestee’s cheek to determine what that person’s CODIS DNA profile is. It’s looking only at 26 numbers that tell us nothing more about that individual. Kagan: Well, but, if that’s what you’re basing it on, then you’re not basing it on an arrestee. I mean, then the chief justice is right: it could be any arrestee, no matter how minor the offense. It could be just any old person in the street. Why don’t we do this for everybody who comes in for a driver’s license because it’s very effective?

Part 2

  • 0:20 Katherine Winfree: Since 2009, when Maryland began to collect DNA samples from arrestees charged with violent crimes and burglary, there have been 225 matches, 75 prosecutions, and 42 convictions, including that of Respondent King. Justice Antonin Scalia: Well, that’s really good. I’ll bet you, if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too. That proves absolutely nothing.
Press Briefing: DNA Use in Law Enforcement, Attorney General Ashcroft, March 4, 2002.

Timestamps & Transcripts

  • 0:33 Attorney General John Ashcroft: Douglas and Laura White were married just 11 days when, walking down a bike path in Mesquite, Texas, in November of 1993, a man jumped out from behind the trees and demanded their money. The frightened couple began to pray, which enraged their attacker. He shot Douglas dead on the scene, raped Laura, and disappeared into the Dallas suburb. Eight years later, in January of 2001, under the federal DNA Backlog Reduction Program, police in Dallas matched a DNA sample taken from Alvin Avon Braziel Jr., with DNA evidence collected from the crime scene. Braziel was convicted of capital murder and given the death sentence. The murder conviction of Alvin Brazil is a powerful example of how one technology, forensic DNA analysis, has revolutionized law enforcement. Over the short span of 10 years, DNA technology has proven itself to be the truth machine of law enforcement, ensuring justice by identifying the guilty and exonerating the innocent. With a strong support of Congress, the Department of Justice has served as a leader in the national effort to maximize the benefits of DNA evidence, and the past 5 years have seen a national explosion in forensic DNA collection. All 50 states and the federal government now have laws on the books that require DNA to be collected from convicted offenders for the purpose of criminal DNA databasing. The strong trend is toward broader DNA sample collection, including collection from all felons in many states. And the reason is simple: experience has taught law enforcement that the more offenders that are included in the database, the more crimes will be solved.
  • 9:23 Attorney General John Ashcroft: The law enforcement tool that makes this DNA analysis useful to state and local police and prosecutors throughout the nation is the Combined DNA Index System, known as CODIS. It’s administered by the Federal Bureau of Investigation. CODIS brings the power of DNA technology to bear on thousands of law enforcement investigations by integrating information obtained by state DNA databases and making that information available nationwide.
House Debate: DNA House Floor Debate, May 16, 2017.

Timestamps & Transcripts

  • 8:00 Rep. Jim Sensenbrenner: Like fingerprinting, photographing, and other booking procedures which at the time were novel but now have become routine, Rapid DNA will soon be standard procedure in police stations throughout the country. There is only one problem with Rapid DNA technology: federal law. Our law, written in 1994 when DNA technology was still in its infancy, prohibits the use of Rapid DNA technology in booking stations. This is not because of any limitation in Rapid DNA technology, but simply because at that time Rapid DNA technology was not even contemplated.

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