Legislature(2001 - 2002)
04/23/2001 01:15 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 99 - DNA REGISTRATION OF BURGLARS [Contains mention that HB 143 and SB 99 are companion bills, and that SB 99 is similar to HB 132 with regard to attempting to commit a crime.] Number 0047 CHAIR ROKEBERG announced that the first order of business would be SENATE BILL NO. 99, "An Act relating to the DNA identification registration system." Number 0050 SENATOR RICK HALFORD, Alaska State Legislature, sponsor, said simply that SB 99 is a good bill. Number 0059 JULI LUCKY, Staff to Senator Rick Halford, Alaska State Legislature, sponsor, added that SB 99 is the companion bill to HB 143, which was reported out of the House Judiciary Standing Committee on 4/6/01. She pointed out that the only difference between the two bills is that the language in SB 99 includes "a person convicted of burglary or a felony attempt to commit burglary", whereas HB 143 only had "a person convicted of burglary". She noted that the Department of Law (DOL) has indicated a preference for the language in SB 99. Number 0134 DEAN J. GUANELI, Chief Assistant Attorney General, Legal Services Section-Juneau, Criminal Division, Department of Law, noted that the language regarding an attempt to commit a burglary is similar to language in HB 132 (which pertains to attempts to send alcohol to dry communities) in that when someone has done everything possible to commit the crime but is prevented from doing so for some reason, the penalties are the same as if he/she had succeeded. The kind of danger represented by an attempt to commit burglary provides the nexus for taking the deoxyribonucleic acid (DNA) sample, he added. REPRESENTATIVE COGHILL requested assurance that an "attempt to commit burglary" is an offense that can be proven. MR. GUANELI pointed out that most crimes that are defined in Alaska law are punishable whether the crime is completed or simply attempted. He explained that the definition [in AS 11.31.100] of an "attempt" reads "with intent to commit a crime, the person engages in conduct which constitutes a substantial step toward the commission of that crime." He opined that in the case of burglary, that substantial step should be more than simply "casing the joint"; it should require that the person actually be on the premises and in the middle of breaking in, which would show that the person intended to carry out that crime. To pursue any felony charge, he explained, there has to be a grand jury indictment, and the grand jury must find beyond a reasonable doubt that the charge is true. He also noted that attempting to commit burglary could result in a conviction separate from the charge of burglary. Number 0477 JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties Union (AkCLU), testified via teleconference and said: To sum up ... the position paper you have before you, the [AkCLU] simply asserts that every time the legislature looks at moving the line in allowing the FBI and law enforcement to collect DNA (or any kind of personal information about its citizens) it needs to ask itself whether it's justified to move the line in that case. ... Our position that is articulated in the position paper is simply that given that all the data we've seen only points to a 6 percent chance that burglars might - in Alaska - go on to commit violent crimes (and this is not like other states, but in Alaska, it looks like 94 percent do not), it doesn't make any sense to us to move the line. If it were 75 percent of burglars that were going on to commit violent crimes - so that having their DNA on file from the burglary would help you track them in the future - then it would be more reasonable, but 6 percent is not, in our opinion, a high enough correlation between means and ends. And one other thing that is not exactly spelled out in the position paper but I've begun to talk with some folks about, is that if [SB99] is going to move (or even if its not going to move - regardless of what happens with this bill), there is a real glaring problem with the current state of the law. And that is that nothing in federal law, and nothing in Alaska State law requires the destruction of the sample.... What happens is that the drop of saliva or the drop of blood (whatever the sample may be) -- public safety/the crime lab will draw a strand of DNA out of that, and they will take 13 specific points along that strand of DNA (13 genetic markers), and that is what gets entered into the FBI database (CODIS [Combined DNA Index System]) - those thirteen markers. Number 0617 With today's technology, indeed, those 13 markers are like a fingerprint. Those 13 markers are called "junk DNA" by scientists because they are among huge sections of DNA that do not code for specific proteins. Tomorrow that could change; we may be able to tell personal information from those markers besides gender and identification, but today we cannot. So, if all we were looking at here was taking 13 markers that look like a bar code in the database, indeed we wouldn't have the privacy concerns today that I'm raising in my position paper, because what I'm talking about is the sample. And, once they get that bar code (for lack of a better term) entered in the database, and that is 99.9 percent accurate for purposes of identifying (much more accurate than fingerprints), that's law enforcement's legitimate need. That's the legitimate reason for getting the DNA. Once that's in the database, they don't need to keep the saliva; they don't need to keep the blood. And regardless of what happens with [SB] 99, there is nothing in Alaska law or federal law that says they ever have to get rid the sample, and indeed they don't. ... If identification is the legitimate rational, they don't need to keep the sample. So the folks in Alaska, your constituents who contact us all the time about concerns about government needing private information and demanding private information (whether it's social security numbers or census forms or background checks or DNA and genetic information) - - something that could be done to alleviate those folk's concerns, and would go a long way toward protecting privacy, would be to destroy the sample once the testing is complete and the data is entered in the database. Because, in the future, if this burglar is one of the 6 percent who goes on to commit a violent crime, law enforcement -- say they show up at the scene of the crime, and there's a drop of blood that doesn't match the victim, and they run that drop of blood, they pull the identifying markers out of that, put it in the database and [it] pops up: poof, "we've got a match." What they're comparing it to are the 13 loci - the other information in the database; they're not going back to the previous drop of blood. It's all a matter of running it through the database, and so [we'd] really like to see Alaska pass some kind of law - and perhaps start with an amendment to this bill - that says, once they've finished their testing and get the data entered, "let's destroy the sample." Number 0839 MS. RUDINGER, in response to questions, said that the 6 percent figure that she is using was gathered from the statistical information provided by Del Smith, Department of Public Safety, regarding burglars in Alaska that go on to commit violent crimes. She acknowledged that the legislature will have to weigh whether that 6 percent justifies moving the line, but she opined it is a very low correlation given the immense amount of information, which has nothing to do with law enforcement's ability to identify criminals, that can be gleaned from that drop of saliva. She said that she would feel better [about taking DNA samples from convicted burglars] if the correlation were higher, but at least if the drop of saliva is destroyed afterwards, so that the only information law enforcement had about the person is, in fact, identifying markers, that would make more sense. MS. RUDINGER explained that it's the drop of saliva (or blood) that contains information about up to 4,000 different genetic conditions and diseases, possibly about sexual orientation, possibly genetic information about the tendency towards substance abuse, all kinds of personal information about the source and everyone related to the source by blood, all of which has nothing to do with law enforcement's need for identifying future criminals that may have previously committed burglary. She opined that regardless of whether the legislature feels that 6 percent justifies obtaining DNA samples from burglars, the legislature should consider destroying the sample once law enforcement has completed its job [of entering the data]. Number 0982 DEL SMITH, Deputy Commissioner, Office of the Commissioner, Department of Public Safety (DPS), regarding the 6 percent figure used by Ms. Rudinger, explained that of the 3,000 or so people - since 1/1/96 - who have been obligated to provide a DNA sample under current law, roughly 6 percent have a previous burglary conviction. He added that he did not think this automatically means that 94 percent of burglars don't go on to commit a [violent] crime. He confirmed that the 6 percent figure was arrived at retrospectively. He noted that he has not yet checked to see how many individuals convicted of burglary go on to commit a violent crime. REPRESENTATIVE BERKOWITZ asked whether DNA evidence has ever been exculpatory. MR. SMITH said yes; he recounted a case in which a person in Anchorage was arrested but the DNA sample proved that this individual was innocent of that crime. REPRESENTATIVE COGHILL asked whether the "bar code" from a DNA sample is associated with the person's name or other identifier. MR. SMITH said that according to his understanding, it is not; if the bar code is in the database it comes back as a series of numbers without being associated with a name. Number 1199 GEORGE TAFT, Director, Scientific Crime Detection Laboratory, Department of Public Safety (DPS), testified via teleconference. With regard to whether to destroy DNA samples, he said that he has given the topic a great deal of thought but is not sure why the samples should be destroyed immediately in case [the DPS] needs to go back and reanalyze a sample for a particular case. He, also, said that there are no names attached to the data, and noted that there are a limited number of people in the laboratory that even have access to the data or to the sample. REPRESENTATIVE JAMES questioned the need to reanalyze a sample; "Don't you have to double check that you got your code right?" MR. TAFT replied, "yes." On the question of storing samples, he noted that there is a very minimal amount of sample storage [space], but to date there is no departmental policy regarding the destruction of the samples. CHAIR ROKEBERG mentioned that the issue of developing a policy for destroying DNA samples could be pursued during the interim; he noted that Mr. Smith was nodding his head in agreement. Chair Rokeberg then closed the public hearing on SB 99. Number 1340 REPRESENTATIVE JAMES moved to report SB 99 out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, SB 99 was reported from the House Judiciary Standing Committee.
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