Legislature(1999 - 2000)
03/29/2000 01:20 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
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HB 294 - DNA TESTING & REGISTRATION REPRESENTATIVE GREEN announced the next order of business would be HOUSE BILL NO. 294, "An Act relating to violations of an order to submit to deoxyribonucleic acid (DNA) testing, to court orders and conditions of parole to collect samples for DNA testing, to removal of material from the DNA identification registration system; and to the collection and processing of samples from certain burglary perpetrators for the DNA identification registration system; and providing for an effective date." Number 1765 DEL SMITH, Deputy Commissioner, Office of the Commissioner, Department of Public Safety (DPS), presented the bill via teleconference from Anchorage. He explained that HB 294 expands a bill passed by the legislature in 1995 that created the DNA [deoxyribonucleic acid] identification registration system. That bill only addressed DNA samples from those convicted of violent crimes against a person and minors 16 years of age, or older adjudicated delinquents for similar crimes. The bill also added methods by which to collect DNA samples. MR. SMITH noted that the DPS has been collecting samples since 1995 and storing them at the crime lab [Scientific Crime Detection Laboratory, DPS] in Anchorage. The department is working hard at storing the information in a database, and has become part of CODIS [Combined DNA Index System]. House Bill 294 expands the collect of DNA samples to include convictions for burglaries. He stressed that the key word is "conviction" because according to research nationwide 52 percent of those convicted of person crimes have been convicted previously, which indicates a crime of opportunity or a continuance of burglar activity. Mr. Smith thinks that it would be good to capture a DNA sample early on for convictions of burglary in the hopes of preventing person crimes later one. The reverse of that is the ability to determine who is not involved in a crime. He noted that Ms. Leane Strickland of the crime lab is present to answer any questions regarding DNA; and that officer John McKinnon of the Anchorage Police Department is also present to answer questions regarding the collection of DNA. MR. SMITH continued. He commented that technology has evolved to the point that a blood sample is not needed for a sample, Instead, a swab of saliva can be taken as a sample. In that way, most anybody can take a sample without any problems involving the proper chain of custody. The bill also expands who could take a sample to include juvenile and adult correctional, probation and parole officers, and peace officers. An increase of who can take a sample would help solve some of the problems over the past five year of obtaining a sample from all who are obligated to under the law. Number 2071 REPRESENTATIVE GREEN asked Mr. Smith whether an officer could take a swab sample. MR. SMITH replied, "Yes." REPRESENTATIVE GREEN asked Mr. Smith whether a swab sample is subject to distortion based on whatever is in a person's mouth. MR. SMITH deferred the question to Ms. Leane Strickland. Number 2109 LEANE STRICKLAND, Supervisor, Scientific Crime Detection Laboratory, Department of Public Safety (DPS), testified via teleconference from Anchorage. Yes, she said, there are some substances that may cause inhibitions when a sample is taken orally. However, the lab has worked over the past three to four years with hundreds and hundreds of oral samples, and there has only been one sample that they were not able to get a DNA profile out of. She said, "Again, any type of sampling that would be inhibited, we would not be getting an incorrect DNA profile, we would just not be getting a DNA profile from the sample." Number 2167 REPRESENTATIVE MURKOWSKI said she is assuming that an oral sample is as simple as taking a Q-tip swab to the saliva and putting it on a test strip. In that way, the results can be taken and processed right there. MS. STRICKLAND replied that a Q-tip swab is used as well as an oral scraper, which is a compacted cotton with serrated edges. Testing, however, is not performed immediately upon receipt of a sample. Testing is performed upon conviction. Number 2224 REPRESENTATIVE MURKOWSKI asked Ms. Strickland whether there could be a problem with the chain of custody, whereby a sample has been taken and a period of time has elapsed so that it's not a correct test. Is an old sample such that it won't register? MS. STRICKLAND replied that the lab is able to get a DNA profile from an old sample. Samples that are hundreds of years old, she said, can show a DNA profile when stored in a dry environment. Samples are stored at the lab in such a way that over extended periods of time they are able to get profiles. Number 2325 MR. SMITH pointed out that a person is obligated by law to give a sample. A sample could therefore be taken again if it is found to be distorted or unreadable. On the same token, a sample that indicated somebody else's profile could be taken again. He said, We're talking about a convicted offender database here. And people that are obligated by law to do it. If you take a sample and the individual said that wasn't me that the officer did then all he or she would have to do is give a DNA sample. We can compare and say something's a foul here and the officer claimed it was somebody else. I mean, there's a number of safeguards here in the DNA process itself. So, if the committee members were concerned about that at all, I just wanted to point that out. Number 2407 REPRESENTATIVE CROFT asked Mr. Smith to explain Section 6 of the bill. [Mr. Smith asked Ms. Strickland about it, and the short reply was cut off by the tape change.] TAPE 00-42, SIDE A Number 0001 JOHN McKINNON, Officer, Anchorage Police Department, testified via teleconference from Anchorage. Section 6, he said, addresses an administrative aspect of the bill in that there isn't a clear mechanism to remove a person's DNA from the registry. Section 6 indicates that a person would have to pursue a court order in order to remove his DNA from the registry. In that way, the Department of Public Safety would not have to continuously determine which person, which sample and which conviction date to manage the information between the court system and the department. This should also prevent the removal of a DNA sample from the registry that was not authorized to be removed, so that if in the future a person committed another crime his sample still remained on the registry. Number 0157 REPRESENTATIVE CROFT said he understands AS 44.41.035(i) and why it is in the bill, but the changes shift the burden from the department to the person who was just declared innocent of a crime. He said: Not only do you have to go through all of the determination to get "not guilty," now, you've got to -you, instead of the government - [have] to take the effort to get your DNA out of the database. And it does seem to me that if we're the person that's falsely accused somebody, we ought to probably have the burden of cleaning up our database on it. Number 0220 MR. SMITH responded that he sees the language in Section 6 as a safeguard. A person found "not guilty" in court can present that information to the crime lab and have his or her DNA removed from the system. He is concerned that a court order not pursued vigorously by a defendant might be inadvertently left in the database. The new language in Section 6 creates a clearer path to get rid of a DNA sample, if it is suppose to be removed from the database. He sees it as an opportunity to ensure that it happens rather than as a creation of more difficulties for a former defendant. Number 0299 OFFICER McKINNON added that when Section 6 was drafted, the idea was to provide a clear path for not only the DPS to carry out their mission but for a person who has a court order to request the removal of his DNA from the registry. It also helps the crime lab feel more comfortable in their procedures. Number 0350 REPRESENTATIVE CROFT said it is a more clear path, but it is at the request of a person. In other words, a request could have come from a lot of sources. For example, the attorney general could ask for a declaratory order to remove the DNA samples at the end of the year for all those who had a conviction reversed. He isn't sure that the changes in Section 6 would allow that to happen now. The language reads, "... upon receipt of a court order issued at the request of a person whose DNA has been collected ...." He asked: Why tie the state to only those types of requests when a court order could come at somebody else's request or even sua sponte? Number 0434 MR. SMITH replied that he understands what Representative Croft is saying, but he's not prepared to deliver an answer. He reiterated that the language is trying to clear a path to ensure that a person's DNA is removed from the registry who has a court order. There may be some inadvertent burden, but that is unintentional. Number 0479 REPRESENTATIVE GREEN suggested the following language: "The Department of Public Safety shall upon the receipt of a court order destroy the material in the system ...." He asked Mr. Smith whether the above suggestion is too big of a cut. MR. SMITH replied that the suggestion sounds reasonable. Number 0485 REPRESENTATIVE KERTTULA pointed out that the original language in statute doesn't require a court order; it puts the requirement on the DPS. She knows what Mr. Smith is saying, but there could be a problem with a lot of people not knowing that they should do this. She asked Mr. Smith whether he would be willing to amend the language as long as the Department of Law agreed to the change. MR. SMITH replied, "Yes." Number 0553 REPRESENTATIVE GREEN said he is concerned that without a court order the DPS may destroy a DNA sample that shouldn't be destroyed. He agrees with Representative Croft in that it puts the burden on the individual. He wondered whether the language "court order" would be a safeguard or whether it would be unnecessary. He said, "At least you've got a court order saying you did it because you had a court order." Number 0607 MS. STRICKLAND said she is concerned about a person who had a conviction overturned at the beginning of the year; and if there is an extended period of time before the crime lab gets a list. In that way, a person's profile would have been searched nationally for that extended period of time. A person's profile could be removed quicker if he has the opportunity to get involved as the bill indicates. REPRESENTATIVE GREEN suggested the following language: "The Department of Public Safety shall upon receipt of a court order or the request of the person whose DNA .... " He explained that the foregoing suggestion does not place a burden on the person, but creates an option for the person to have his sample removed at an earlier time. REPRESENTATIVE CROFT pointed out that the language he had suggested allows for anybody to come to the crime lab and request the removal of his DNA sample. Number 0698 JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union [AkCLU], testified via teleconference from Anchorage in opposition to HB 294. She said she was there on behalf of the membership of the AkCLU, which has 850 to 1000 [members] statewide. She was also there on behalf of the committee member's constituents who bombard her office week after week expressing concern of the government's ever increasing control over personal information, such as social security numbers, census information, background checks, and DNA and genetic types of information. The concerns cross ideological and party lines, she said, and many feel that the government has not justified their demand for that type of information. Many also express concern that the government cannot be trusted to keep that type of information confidential or limit its use for the initial purpose for which it was collected. The ACLU agrees with their expressed concerns, for they have seen evidence of this around the country. She read the following: The Alaska Civil Liberties Union opposes HB 294 and respectfully urges the committee to put an end to the progressive expansion of DNA collection by the government. DNA collected from one person not only reveals personal information about that person, much of which has nothing to do with serving the needs of law enforcement, but it also reveals very personal information about everyone related to that person by blood. Unlike fingerprinting, which only reveals information that can be used for identification purposes, DNA gives the government control over a great deal of personal, private information about anyone related to the sample source. Therefore, expansion of the government's power to collect DNA from its citizens - even people convicted of crimes - should not be taken lightly. [House Bill] 294 proposes to invade the privacy of innocent family members, and the government's only justification is that burglars might later commit violent crimes in which they leave DNA evidence at the scene. Initially, DNA storehouses were created to house information about convicted sex offenders exclusively. The argument was that sex offenders were especially prone to recidivism. They typically left DNA evidence at the crime scene, and therefore, were important to identify. Whether or not that argument was sufficient, we were assured at the time that only convicted sex offenders would be tested and the information gleaned from these test would be used by law enforcement officials strictly for identification purposes. But, as often the case, that information initially collected for one, limited purpose is before long used for other purposes. In less than a decade, law enforcement official across the country have gone from advocating collection of DNA from only convicted sex offenders, and then to all violent offenders, and then to all burglars, and in some states to anyone convicted of any crime and even juvenile offenders. And finally we have recently seen proposals from as far up as Janet Reno to collect DNA from people who are merely arrested before they are even convicted regardless of whether they're guilty of any wrong doing whatsoever. And Rudy Giuliani has not only voiced his support for this proposal but he's gone so far as to say that he would support the collection of DNA samples from all babies born at birth giving the city a genetic database of all of its citizens. I wish that I were exaggerating here. The collection of DNA does have some good uses. The ACLU does not oppose any specific form of technology but rather the government should have a very tight method between the means and the ends. Unlike sex offenders or violent criminals who do leave DNA at the crime scene, just to say that burglars might someday commit a violent crime when they have never before committed a violent crime is not a tight enough nexus between means and ends, and simply does not justify collecting DNA, which as I said before gives very personal information about anyone related to the sample source. I've given you a lot of information in a position paper that I know you'll soon have a chance to review about nationwide what we have seen in terms of DNA collection and other types of information collection. Three more points I just want to make. One is that again, unlike fingerprinting, you know DNA has been touted as some sort of high-tech fingerprinting, but in fact it provides a lot of information about a person's ethnicity, their family relationships, their family history and the likelihood of getting some 4,000 genetically conditioned diseases. The folks that call my office and write to my office every week about these kinds of concerns say that this information belongs to the individual; it's owned by the individual; it should not be owned by the government again without some compelling justification. The second point I want to make is that, to wrap up, is that we've seen a long history in this country of "function creep." Function creep is a term that we've created to describe where you're told that information you surrendered to the government will only be used for one function but ... that function kind of expands and creeps and the argument by proponents is that, "Hey we've already got the information, it's kind of related, what's the harm." For example, social security numbers were initially intended only for use as an aid for tracking social security payments, but are now universal identifiers. Another example, census records, a hot topic today. Census records created for general, statistical purposes were actually used in 1942 to round up Japanese-Americans and place them in internment camps during World War II. And finally, there's something not in my position paper. This bill just popped up on my radar screen recently and there's another point that I would like to make that's not in my paper. But we do object to Section 8's retroactivity. The basis for our objection to making this bill retroactive is that if somebody has done their time and they now they've got their life together and they have not been a recidivate of any crime and certainly not a violent crime to have the government now to go to them and ask for a DNA sample as though well we know you've got your act together but we're still suspicious. Someday you might just commit a violent crime. We don't think the government can justify going to that person. I appreciate again the opportunity to testify, and I need to look into one point a little further. I could find no requirement either in this bill or the Alaska Statutes that the DNA sample from which the genetic information is taken must be destroyed. If there is no such requirement there certainly should be. And I may have heard today that samples of this are sitting around since 1995. I don't know. I'd like to look into that a little bit further, but I'm certainly open to any questions the committee might have. I thank you for your time. Number 1232 ROBERT BUTTCANE, Juvenile Probation Officer, Youth Corrections, Division of Family and Youth Services, Department of Health & Social Services, came before the committee to testify in favor of HB 294. He said he appreciates the concerns raised by the ACLU in relation to an intrusion of the government, but this bill affects those who are convicted of burglaries or an adjudicated delinquent of burglary offenses. These are very serious felony offenses. He noted that Burglary I is a class B felony. It is not a small matter when somebody enters another person's home and commits a crime. Statistically, there is a correlation between the commission of burglary and other serious acts against persons. The Administration is putting this bill forward in order to get "bad guys" off the street. MR. BUTTCANE noted that in FY [fiscal year] '99 there were approximately 50 delinquents adjudicated of burglary offenses out of 7,484 referrals. Even though 50 is not a big number, they caused considerable havoc to neighborhoods and communities, and they typically have a long history of offenses. If the state can identify them in future criminal activities through DNA sampling, communities can feel safer and offenders can be held accountable to conduct that a civilized community should expect. The bill is really narrow in its focus of trying to identify those who pose a serious concern to the safety of the public. He encouraged the committee members to consider the bill favorably. The concerns Representative Croft expressed in relation to Section 6, of the bill, can be worked out. He suggested working with the Department of Law in looking at how to balance the burden of removing DNA evidence after a conviction is either overturned or a person is found "not guilty." Number 1401 REPRESENTATIVE GREEN expressed his appreciation of Mr. Buttcane's suggestion in looking at the issue surrounding Section 6. He agreed that there should be something in the bill indicating that after a certain time or use, a DNA sample should be destroyed. Number 1445 CANDACE BROWER, Parole Board Officer, Parole Board, Division of Community Corrections, Department of Corrections, came before the committee to testify. She pointed out that the changes in the bill allow for non-medical personnel to collect samples from convicted felons. This is a particular important part of the bill for the Department of Corrections because in times of fiscal scarcity it has become incumbent upon the department to collect the samples. Generally, she explained, when someone has been convicted of a crime they are in a correctional institution, therefore, the medical staff of the Department of Corrections has been the ones who predominately collect the samples, yet the medical staff is becoming scarcer and scarcer. She believes that with the simplicity of gathering saliva samples and with appropriate training from medical personnel staff anyone could collect a sample without problems. She asked that the committee members consider that part of the bill. Number 1515 REPRESENTATIVE GREEN said he certainly concurs with the statements made by Ms. Brower. He announced that HB 294 would be held over.
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