Existing law, the DNA and Forensic Identification Database and Data Bank Act of 1998, provides that the Department of Justice, through its DNA Laboratory, is responsible for the management and administration of the states DNA and Forensic Identification Database and Data Bank Program. Existing law prohibits the DNA and forensic identification database and databank from being used as a source of genetic material for testing, research, or experiments, experiments by any person, agency, or entity seeking to find a causal link between genetics and behavior or health.

This bill would find and declare that the Department of Justice manages and administers establish the CODIS Hit Outcome Project (CHOP) database and in, and would require that the database be administered and managed by, the department. The bill would impose various requirements and restrictions relating to the CHOP database database, including, among other things, a requirement that every city, county, or state laboratory participating in CODIS enter into the database data specified by the department upon notification that a CODIS hit has occurred, a prohibition of against the CHOP database containing DNA profiles profiles, and a requirement that certain entities, including, among others, each law enforcement agencies and county probation departments, agency within California responsible for the investigation or prosecution of a case involving a DNA database match to a California offender report to the Department of Justice, through the CHOP database, the status or outcome of that investigative leads provided by the states DNA Database and Data Bank Program. lead. The bill would require a county city, county, or city and county to be reimbursed for the cost of reporting that information to the Department of Justice. By imposing a higher level of service on local entities, the bill would impose a state-mandated local program.

Existing law, the DNA and Forensic Identification Database and Data Bank Act of 1998, provides that the Department of Justice, through its DNA Laboratory, is responsible for the management and administration of the states DNA and Forensic Identification Database and Data Bank Program. Existing law prohibits the DNA and forensic identification database and databank from being used as a source of genetic material for testing, research, or experiments, by any person, agency, or entity seeking to find a causal link between genetics and behavior or health.

This bill would find and declare that the Department of Justice manages and administers the CODIS Hit Outcome Project (CHOP) database and would impose various requirements and restrictions relating to the CHOP database including, among other things, a prohibition of the CHOP database containing DNA profiles and a requirement that certain entities, including, among others, law enforcement agencies and county probation departments, report to the Department of Justice, through the CHOP database, the outcome of investigative leads provided by the states DNA Database and Data Bank Program. The bill would require a county to be reimbursed for the cost of reporting that information to the Department of Justice.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

SB 1079 (Glazer) - DNA evidence: CODIS Hit Outcome Project

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 1079 would establish the CODIS Hit Outcome Project (CHOP) database, to be managed and administered by the Department of Justice (DOJ). This bill would require every city, county, or state laboratory participating in CODIS to enter specified data into the CHOP database, and would require each law enforcement agency responsible for the investigation or prosecution of a case involving a DNA database match to a California offender to report to DOJ the status or outcome of that investigative lead.

Fiscal Impact:

• CHOP administration: One-time minor costs (Special Fund*) to the DOJ to develop the reporting schedule and instructions for DNA laboratories and law enforcement agencies. Ongoing workload to manage and administer the database is estimated to be minor and absorbable.
• Local agency data reporting: Potentially significant one-time and ongoing costs (Local Fund** and/or General Fund), potentially in excess of hundreds of thousands of dollars annually to local law enforcement agencies for data reporting requirements, which are unspecified in the bill. There are currently 482 cities and 58 counties in California. The bill specifies local agencies are to be reimbursed for the costs of reporting, however it is unclear what entity is responsible for reimbursing agencies, and from what fund the reimbursement is to be paid. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund).
• California Highway Patrol (CHP): Minor, absorbable impact (Special Fund***).
• CDCR: No fiscal impact, as the DNA samples collected by the CDCR are not tested in-house but sent to DOJ laboratories for processing/testing.

*State DNA Identification Fund

**County DNA Identification Fund

***Motor Vehicle Account

Background:

Existing law provides that the DOJ, through its DNA Laboratory, is responsible for the management and administration of the state’s DNA and Forensic Identification Database and Data Bank Program and for liaising with the Federal Bureau of Investigation regarding the state’s participation in a national or international DNA database and data bank program such as the Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide. (Penal Code (PC) § 295 (g).)

Under existing law, the DOJ DNA Laboratory is required to establish procedures for entering data bank and database information. (PC 298 § (b)(6).) The DOJ Bureau of Forensic Services (BFS) provides DNA typing support to law enforcement agencies throughout the state for the DNA Data Bank. Seventeen local crime laboratories and seven BFS Laboratories or sections are participants in the California DNA Data Bank Program (CAL-DNA) and the National DNA Index System (NDIS) as part of the CODIS.

According to its most recent quarterly report of the DOJ Proposition 69 DNA Data Bank Program (Fourth Quarter 2015), over 2.5 million DNA samples have been received and logged since the inception of the program, with 29,245 submissions for the most recent quarter (October-December 2015). The report additionally noted nearly 43,000 DNA profiles uploaded to CODIS for the same quarter. Finally, the report indicated over 45,000 hits since inception of the program, leading to over 53,000 investigations aided. (https://oag.ca.gov/sites/all/files/agweb/pdfs/bfs/quarterlyrpt-q4-2015.pdf)

Pursuant to the implementation provisions of Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (November 2004), existing law levies an additional penalty of $1 for every $10, or part of $10, in each county upon every fine or penalty imposed and collected by the courts for all criminal offenses, including Vehicle Code violations. (GC 76104.6.) Funds are deposited into each county’s DNA Identification Fund, and the counties transfer 25 percent of the amounts collected in the county’s DNA Identification Fund each year to the Controller for credit to the state’s DNA Identification Fund.

The remaining 75 percent of funds collected in a county’s DNA Identification Fund are to be used for specified purposes, including to reimburse local sheriff, police, district attorney, and regional or state crime laboratories for expenditures and administrative costs made or incurred in connection with the processing, analysis, tracking, and storage of DNA crime scene samples from cases in which DNA evidence would be useful in identifying or prosecuting suspects, including the procurement of equipment and software for the processing, analysis, tracking, and storage of DNA crime scene samples from unsolved cases.

In addition to the penalty assessment described above, existing law levies an additional state-only penalty of $4 for every $10, or part of $10, in each county upon every fine or penalty imposed and collected by the courts for all criminal offenses, and funds are similarly deposited into each county’s DNA Identification Fund. Existing law requires 100 percent of these funds, including any interest earned, to be transferred to the state Controller for deposit into the state’s DNA Identification Fund, to be used to fund DOJ forensic laboratories operations, including the operation of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, and to facilitate compliance with provisions of law limiting the disclosure of DNA data. (GC § 76104.7.)

Proposed Law:

This bill would establish the CODIS Hit Outcome Project (CHOP) database, to be managed and administered by the DOJ. Specifically, this bill:

• Establishes definitions for purposes of the project, and defines “CODIS” to mean the California Combined DNA Index System.
• Provides that the CHOP database is to provide a restricted-access repository for tracking the occurrence and consequences of DNA database hits, such that information with investigatory value may be shared among affected law enforcement agencies and the efficacy of the state’s DNA database may be monitored and reported upon by the state.
• Requires every city, county, or state laboratory in California participating in CODIS to, upon notification by the DOJ that a CODIS hit has occurred, enter into the CHOP database the data specified by the DOJ.
• Requires each law enforcement agency in the state responsible for the investigation or prosecution of a case involving a DNA database match to a California offender to, on a schedule set forth by the DOJ, and pursuant to instructions published by DOJ, report to DOJ through the CHOP database, the status or outcome of that investigative lead.
• Provides that a city, county, or city and county shall be reimbursed for the costs of complying with reporting requirements on the status or outcome of such leads.
• Provides that the CHOP database is to contain records of indexed information related to DNA hits and case-to-case matches, including, but not limited to, the identity of the submitting crime laboratory, the investigating law enforcement agency, a district attorney contact, offender information, investigation status, and resulting criminal charges and conviction information, if any.
• Specifies that the CHOP database shall not contain DNA profiles.
• Provides that information collected by DOJ pursuant to the CHOP database is investigatory in nature, and shall be deemed official information and subject to the disclosure protections Evidence Code (EC) §§ 1040 and 1041.
• Provides that nothing in the bill’s provisions shall require DOJ or a local law enforcement agency to disclose any information protected under EC § 1040 or 1041, or Section 6254 of the Government Code.

Staff Comments:

The DOJ has indicated any additional workload generated by the provisions of this bill will be minor and absorbable within existing resources.

The DOJ, through its DNA Laboratory currently manages and administers the CHOP database. For FY 2015-16, the DOJ reported an appropriation of $72.3 million of DNA Identification Funds, of which $33.1 million was expended for BFS operations, the CAL-DNA Data Bank Program, and data center and criminal history database operations. The fund condition statement indicates the DNA ID Fund is structurally imbalanced due to declining penalty assessment revenues.

Based on the DOJ DNA Database and Data Bank Program Annual DNA Identification Fund Report for CY 2014, the report reflected $22.4 million in total funds collected by the counties, of which $9.2 million was allocated to the state and $13.2 million was allocated to the counties. The report indicated total county expenditures of $13 million for administrative costs, collection of samples, processing, analysis, tracking and storage of DNA crime scene samples, equipment, software and other expenses.

By requiring law enforcement agencies to report to DOJ according to a schedule and instructions published by the DOJ, this bill creates a state-mandated local program. To the extent the Commission on State Mandates (CSM) determines the bill creates a new program or a higher level of service on local agencies, counties could claim reimbursement for those costs. Although the bill specifies local agencies shall be reimbursed for the costs of complying with reporting requirements to CHOP, it is not specified by whom the agencies will be reimbursed or from what fund source. To the extent the CSM determines the DNA reporting requirements do not constitute a higher level of service on local agencies, funding could potentially be drawn from each county’s DNA Identification Fund.

It is estimated that all law enforcement entities, both local and state, would be subject to the data reporting requirements of this bill. There are currently 482 cities and 58 counties in the State. While statewide costs cannot be estimated with certainty, given the large number of local agencies and the lack of specificity on the frequency, volume, and detail of the data required to be reported, these activities could result in significant ongoing costs. DOJ monthly reports reflect an average of 640 monthly database hits and 11,000 DNA profiles imported monthly into CODIS. On an annualized basis, over 7,700 hits could require additional reporting. To the extent local agency expenditures qualify as a reimbursable state mandate, agencies could claim reimbursement of those costs (General Fund). For context, the Commission on State Mandates’ statewide cost estimate for Crime Statistics Reports for the DOJ reflects eligible reimbursement of over $13.6 million per year for slightly over 50 percent of local agencies reporting.

The costs to individual agencies would vary widely and depend on various factors, including but not limited to the volume of hits triggering a reporting requirement, the schedule of reporting, and the time/workload required to fulfill the reporting requirements specified by DOJ instructions that have yet to be developed. While the volume of workload based on the number of hits may not be substantial, the workload required to track the status or outcome of each hit could generate significant workload. To the extent local agencies additionally require system enhancements to track and report the required information, the one-time and ongoing costs for maintenance and operations could also be very significant.

Recommended Amendments:

As drafted, this bill requires each law enforcement agency responsible for the investigation or prosecution of a case involving a DNA database match to report to the DOJ, however, the disclosure provisions of the bill apply only to DOJ and local law enforcement agencies. As the CHP will also be required to report into the CHOP database, staff recommends an amendment to extend the disclosure provisions covering local law enforcement agencies and the DOJ to also include state law enforcement agencies in California.

On page 3, in line 33, delete “local”

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SENATE COMMITTEE ON PUBLIC SAFETY

Senator Loni Hancock, Chair

2015 - 2016 Regular

Bill No: SB 1079 Hearing Date: April 12, 2016

Subject: DNA Evidence: CODIS Hit Outcome Project

HISTORY

Source: Attorney General Kamala Harris

Prior Legislation: None

Support: Unknown

Opposition: Electronic Frontier Foundation

PURPOSE

The purpose of this bill is to require local law enforcement to submit information regarding the outcome of investigative leads provided by the DNA Database to a CODIS Hit Outcome Project database to be managed and administered by the Department of Justice.

Existing law provides that the Department of Justice (DOJ), through its DNA Laboratory, is responsible for the management and administration of the state’s DNA and Forensic Identification Database and Data Bank Program and for liaising with the Federal Bureau of Investigation (FBI) regarding the state’s participation in a national or international DNA database and data bank program such as the Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide. (Penal Code, § 295 (g).)

Existing law provides that DOJ can perform DNA analysis, other forensic identification analysis, and examination of palm prints pursuant to the Act only for identification purposes. (Penal Code § 295.1 (a) & (b).)

Existing law provides that the DOJ DNA Laboratory is to serve as a repository for blood specimens, buccal swab, and other biological samples collected and is required to analyze specimens and samples and store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records related to the following:

• Forensic casework and forensic unknowns;
• Known and evidentiary specimens and samples from crime scenes or criminal investigations;
• Missing or unidentified persons;
• Persons required to provide specimens, samples, and print impressions;
• Legally obtained samples; and
• Anonymous DNA records used for training, research, statistical analysis of populations, quality assurance, or quality control. (Penal Code § 295.1(c))

Existing law specifies that the Director of Corrections, or the Chief Administrative Officer of the detention facility, jail, or other facility at which the blood specimens, buccal swab samples, and thumb and palm print impressions were collected send them promptly to the DOJ.(Penal Code § 298.)

Existing law requires the DNA Laboratory of DOJ to establish procedures for entering data bank and database information. (Penal Code § 298(b)(6).)

This bill declares that the CODIS Hit Outcome Project (CHOP) shall be managed and administered by the Department of Justice.

This bill states that the CHOP database shall provide a restricted-access repository for tracking the occurrence and consequences of DNA database hits, such that information with investigatory value may be shared among affected law enforcement agencies and efficacy of the DNA database may be monitored and reported upon by the state.

This bill states that every city, county or state laboratory in California participation in CODIS shall, upon notification by the DOJ that a CODIS hit has occurred, enter into the CHOP database the data specified by the department.

This bill provides that on a schedule set forth by the department, and pursuant to instructions published by the department, each law enforcement agency within California responsible for the investigation or prosecution of a case involving a DNA database match to a California offender shall report to the DOJ, through the CHOP database, the status or outcome of that investigative lead.

This bill provides that a city, county and city and county shall be reimbursed for the cost of submitting the required information to the CHOP database.

This bill states that the CHOP database shall contain records of indexed information related to DNA hits and case-to-case matches, including but not limited to the identity of the submitting crime laboratory, the investigating law enforcement agency, a district attorney contact, and offender information, including criminal charges and conviction information.

This bills states that the CHOP database shall not contain DNA profiles.

This bill provides that information collected by the DOJ for the CHOP database is investigatory in nature and shall be deemed official information and subject to the disclosure protections of Sections 1040 and 1041 of the Evidence Code.

This bill provides that nothing in this section shall require DOJ or a local law enforcement agency to disclose any information protected under Sections 1040 and 1041 of the Evidence Code or Section 6245 of the Government Code.

RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.

On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:

• 143% of design bed capacity by June 30, 2014;
• 141.5% of design bed capacity by February 28, 2015; and,
• 137.5% of design bed capacity by February 28, 2016.

In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)

While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:

• Whether a proposal erodes a measure which has contributed to reducing the prison population;
• Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
• Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
• Whether a proposal corrects a constitutional problem or legislative drafting error; and
• Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.

COMMENTS

1. Need for This Bill

According to the author:

Several large counties regularly entered their data into CHOP. However, local participation in CHOP is currently optional. Only a fraction of CODIS hits have been complete follow-up information, such as whether a suspect identified by a DNA profile search has been located; if the required reference sample has been taken and sent to the laboratory; and further status on pending investigations, filed charges, or ultimate convictions. The absence of full participation makes the information in CHOP incomplete and unreliable.

A lack of universal CHOP use makes it very difficult for local agencies and DOJ to ensure that CODIS hit information is being used to its full potential for case investigation and prosecution.

2. California DNA Database

The profile derived from a DNA sample is uploaded into the state's DNA databank, which is part of the national Combined DNA Index System (CODIS), and can be accessed by local, state and federal law enforcement agencies and officials. When a DNA profile is uploaded, it is compared to profiles contained in the Convicted Offender and Arrestee Indices; if there is a "hit," the laboratory conducts procedures to confirm the match and, if confirmed, obtains the identity of the suspect. The uploaded profile is also compared to crime scene profiles contained in the Forensic Index; again, if there is a hit, the match is confirmed by the laboratory. CODIS also performs weekly searches of the entire system. In CODIS, the profile does not include the name of the person from whom the DNA was collected or any case-related information, but only a specimen identification number, an identifier for the agency that provided the sample, and the name of the personnel associated with the analysis. CODIS is also the name of the related computer software program. CODIS's national component is the National DNA Index System (NDIS), the receptacle for all DNA profiles submitted by federal, state, and local forensic laboratories. DNA profiles typically originate at the Local DNA Index System (LDIS), then migrate to the State DNA Index System (SDIS), containing forensic profiles analyzed by local and state laboratories, and then to NDIS.

3. CHOP Database

This bill creates the CHOP database in the DOJ. City, county and state laboratories participating in CODIS will be required to enter specified data into the CHOP database after they are notified that a hit in the CODIS database has occurred. The database shall contain information related to DNA hits and case-to-case matches, including, but not limited to, the identity of the submitting crime laboratory, the investigating law enforcement agency, a district attorney contact, offender information, investigative status and resulting criminal charges and conviction information.

4. Investigatory in Nature

This bill provides that the information collected in the CHOP data base to be investigatory in nature and official information and therefore its disclosure will be limited under Evidence Code Section 1040 and 1041 and Government Code Section 6254.

It is unclear why this data that is collected should be considered investigatory. The CHOP database does not contain any actual DNA information. The data could even be collected in a manner that provides for no personal identifying information of the person whose DNA resulted in a CODIS hit. Evidence Code Sections 1040 and 1041 would give the DOJ the privilege to disclose the information but contrary to the point of these sections which is to keep information confidential when it is in the public interest, the data in CHOP is information that is clearly in the public interest to be disclosed. The public, through the Legislature, press, defense bar, academic institutions etcetera, has an interest in the effectiveness of the DNA databank. It is in the public interest to know whether taking DNA from a great number of people is valuable, whether investment in state and local data banks is valuable and this information should be able to be evaluated by people outside the law enforcement community.

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