[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2859 Introduced in Senate (IS)]







106th CONGRESS
  2d Session
                                S. 2859

  To provide assistance to States in reducing the backlog of casework 
   files awaiting DNA analysis and to make DNA testing available in 
      appropriate cases to convicted Federal and State offenders.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 13, 2000

  Mr. Schumer introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To provide assistance to States in reducing the backlog of casework 
   files awaiting DNA analysis and to make DNA testing available in 
      appropriate cases to convicted Federal and State offenders.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``DNA Testing Availability Act''.

SEC. 2. AWARDS TO STATES TO REDUCE DNA CASEWORK BACKLOG.

    (a) Development of Plan.--
            (1) In general.--Not later than 45 days after the date of 
        enactment of this Act, the Director of the Federal Bureau of 
        Investigation, in coordination with the Assistant Attorney 
        General of the Office of Justice Programs of the Department of 
        Justice, and after consultation with representatives of States 
        and private forensic laboratories, shall develop a plan to 
        grant voluntary awards to States to facilitate DNA analysis of 
        all casework evidence of unsolved crimes.
            (2) Objective.--The objective of the plan developed under 
        paragraph (1) shall be to expedite the analysis of all casework 
        evidence of unsolved crimes in an efficient and effective 
        manner, and to provide for the entry of DNA profiles into the 
        combined DNA Indexing System (``CODIS'').
    (b) Award Criteria.--The Federal Bureau of Investigation, in 
coordination with the Assistant Attorney General of the Office of 
Justice Programs of the Department of Justice, shall develop criteria 
for the granting of awards under this section including--
            (1) the applying State's number of unsolved crimes awaiting 
        DNA analysis; and
            (2) the applying State's development of a comprehensive 
        plan to collect and analyze DNA evidence.
    (c) Granting of Awards.--The Federal Bureau of Investigation, in 
coordination with the Assistant Attorney General of the Office of 
Justice Programs of the Department of Justice, shall develop 
applications for awards to be granted to States under this section, 
shall consider all applications submitted by States, and shall disburse 
all awards under this section.
    (d) Award Conditions.--States receiving awards under this section 
shall--
            (1) require that each laboratory performing DNA analysis 
        satisfies quality assurance standards and utilizes state-of-
        the-art DNA testing methods, as set forth by the Federal Bureau 
        of Investigation in coordination with the Assistant Attorney 
        General of the Office of Justice Programs of the Department of 
        Justice;
            (2) ensure that each DNA sample collected and analyzed be 
        made available only--
                    (A) to criminal justice agencies for law 
                enforcement purposes;
                    (B) in judicial proceedings if otherwise 
                admissible;
                    (C) for criminal defense purposes, to a criminal 
                defendant, who shall have access to samples and 
                analyses performed in connection with any case in which 
                such defendant is charged; or
                    (D) if personally identifiable information is 
                removed, for a population statistics database, for 
                identification research and protocol development 
                purposes, or for quality control purposes; and
            (3) match the award by spending 15 percent of the amount of 
        the award in State funds to facilitate DNA analysis of all 
        casework evidence of unsolved crimes.
    (e) Authorization of Appropriations.--There are authorized to be 
appropriated to the Department of Justice $25,000,000 for each of 
fiscal years 2001, 2002, 2003, and 2004, for awards to be granted under 
this section.

SEC. 3. DNA TESTING IN FEDERAL CRIMINAL JUSTICE SYSTEM.

    (a) In General.--Part IV of title 28, United States Code, is 
amended by inserting after chapter 155 the following:

                       ``CHAPTER 156--DNA TESTING

``Sec.
``2291. DNA testing.
``2292. Preservation of biological material.
``Sec. 2291. DNA testing
    ``(a) Petition for Testing.--Notwithstanding any other provision of 
law, a person convicted of a crime by any Federal court may, at any 
time, petition the court that entered the judgment of conviction for 
forensic DNA testing of biological material in the possession or 
control of the Government or the court that relates to the prosecution 
that resulted in conviction.
    ``(b) Opportunity for Government To Respond.--The court shall 
notify the Government of any petition filed under subsection (a) and 
shall afford the Government an opportunity to respond.
    ``(c) Mandatory Testing.--After considering the petition and any 
response, the court shall order testing if it finds that--
            ``(1) a reasonable probability exists that the petitioner 
        would not have been prosecuted or convicted if exculpatory 
        results had been obtained through DNA testing;
            ``(2) the evidence petitioner seeks to have tested is still 
        in existence and in such a condition that DNA testing may be 
        conducted;
            ``(3) the evidence was never previously subjected to DNA 
        testing or was not subjected to the testing now requested, 
        which can resolve an issue not resolved by previous testing; 
        and
            ``(4) the petition has been filed for the purpose of 
        demonstrating innocence, and not merely to delay the execution 
        of sentence or the administration of justice.
    ``(d) Discretionary Testing.--After consideration of the petition 
and any response, the court may order testing if it finds that--
            ``(1) a reasonable probability exists that DNA testing of 
        the evidence would have rendered the outcome of the 
        petitioner's prosecution or sentencing more favorable had the 
        results been available;
            ``(2) the evidence petitioner seeks to have tested is still 
        in existence and in such a condition that DNA testing may be 
        conducted;
            ``(3) the evidence was never previously subjected to DNA 
        testing or was not subjected to the testing now requested, 
        which can resolve an issue not resolved by previous testing; 
        and
            ``(4) the petition has been filed for the purpose of 
        demonstrating innocence, and not merely to delay the execution 
        of sentence or administration of justice.
    ``(e) Testing Procedures.--
            ``(1) Payment by petitioner.--In the case of an order under 
        subsection (a), the court shall, if necessary, order the test 
        without payment by the petitioner. In the case of an order 
        under subsection (b), the court may require the petitioner to 
        pay for the testing.
            ``(2) Counsel.--The court may appoint counsel for an 
        indigent petitioner at any time during proceedings instituted 
        under this section.
            ``(3) Discovery.--The petitioner and the Government shall 
        disclose to all parties and the court the existence of any 
        previous DNA or other biological evidence testing relating to 
        the prosecution giving rise to the petition. If any evidence in 
        the petitioner's case has previously been subjected to DNA 
        testing, the court may order production of laboratory reports, 
        underlying data and laboratory notes to all parties and the 
        court. If the court grants a petition filed under this section, 
        the court shall order the production of any laboratory reports 
        prepared in connection with the DNA testing and may, in its 
        discretion, order production of the underlying data and 
        laboratory notes.
            ``(4) Preservation order.--Unless the petition is summarily 
        dismissed, the court shall order that all evidence in the 
        possession or control of the Government or the court that could 
        be subjected to DNA testing be preserved during the pendency of 
        the proceeding.
            ``(5) Choice of laboratory.--If the court orders testing, 
        it shall select a laboratory that meets the standards adopted 
        pursuant to the DNA Identification Act of 1994.
            ``(6) Additional orders.--The court may, in its discretion, 
        issue such other orders as may be appropriate.
    ``(f) Procedure After Test Results Are Obtained.--
            ``(1) Unfavorable.--If the results of DNA testing ordered 
        under subsection (a) or (b) are unfavorable to the petitioner, 
        the court shall dismiss the petition and issue such further 
        orders as shall be appropriate.
            ``(2) Favorable.--If the results of DNA testing ordered 
        under subsection (a) or (b) are favorable to the petitioner, 
        the court shall--
                    ``(A) order a hearing, notwithstanding any 
                provision of law that would bar such a hearing as 
                untimely; and
                    ``(B) enter any order that serves the interests of 
                justice, including an order--
                            ``(i) vacating and setting aside the 
                        judgment of conviction;
                            ``(ii) discharging the petitioner if the 
                        petitioner is in custody;
                            ``(iii) resentencing the petitioner; or
                            ``(iv) granting a new trial.
    ``(g) Rule of Construction.--Nothing in this section shall be 
construed to limit the circumstances under which a person may obtain 
DNA testing or other post-conviction relief under any other provision 
of law.
``Sec. 2292. Preservation of biological material
    ``(a) In General.--Notwithstanding any other provision of law and 
subject to subsection (b), the Government shall preserve any biological 
material secured in connection with a criminal case for such period of 
time as any person remains incarcerated in connection with that case.
    ``(b) Exception.--The Government may destroy biological material 
before the expiration of the period of time described in subsection (a) 
if--
            ``(1) the Government notifies any person who remains in 
        custody in connection with the case, and any counsel of record, 
        of the intention of the Government to destroy the material, and 
        of the provisions of this chapter;
            ``(2) no person files a petition, or files a notice of 
        intention to file a petition as soon as is practicable, within 
        90 days of receiving notice under paragraph (1); and
            ``(3) no other provision of law requires that such 
        biological material be preserved.''.
    (c) Technical and Conforming Amendment.--The analysis for part VI 
of title 28, United States Code, is amended by inserting after the item 
relating to chapter 155 the following:

``156. DNA Testing..........................................    2291''.

SEC. 4. DNA TESTING IN STATE CRIMINAL JUSTICE SYSTEMS.

    (a) DNA Identification Grant Program.--Section 2403 of title I of 
the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 
3796kk-2) is amended--
            (1) in paragraph (2)--
                    (A) in the matter preceding subparagraph (A), by 
                striking ``shall'' and inserting ``will'';
                    (B) in subparagraph (C), by striking ``is charged'' 
                and inserting ``was charged or convicted''; and
                    (C) in subparagraph (D), by striking ``and'' at the 
                end;
            (2) in paragraph (3)--
                    (A) by striking ``shall'' and inserting ``will''; 
                and
                    (B) by striking the period at the end and inserting 
                ``; and''; and
            (3) by adding at the end the following:
            ``(4) the State will--
                    ``(A) preserve all biological material secured in 
                connection with a State criminal case for not less than 
                the period of time that biological material is required 
                to be preserved under section 2292 of title 28, United 
                States Code, in the case of a person incarcerated in 
                connection with a Federal criminal case; and
                    ``(B) make DNA testing available to any person 
                convicted in State court to the same extent, and under 
                the same conditions, that DNA testing is available 
                under section 2291 of title 28, United States Code, to 
                any person convicted in a court established by an Act 
                of Congress.''.
    (b) Drug Control and System Improvement Grant Program.--Section 
503(a)(12) of title I of the Omnibus Crime Control and Safe Streets Act 
of 1968 (42 U.S.C. 3753(a)(12)) is amended--
            (1) in subparagraph (B)--
                    (A) in clause (iii), by striking ``is charged'' and 
                inserting ``was charged or convicted''; and
                    (B) in clause (iv), by striking ``and'' at the end;
            (2) in subparagraph (C), by striking the period at the end 
        and inserting ``; and''; and
            (3) by adding at the end the following:
                    ``(D) the State will--
                            ``(i) preserve all biological material 
                        secured in connection with a State criminal 
                        case for not less than the period of time that 
                        biological material is required to be preserved 
                        under section 2292 of title 28, United States 
                        Code, in the case of a person incarcerated in 
                        connection with a Federal criminal case; and
                            ``(ii) make DNA testing available to a 
                        person convicted in State court to the same 
                        extent, and under the same conditions, that DNA 
                        testing is available under section 2291 of 
                        title 28, United States Code, to a person 
                        convicted in a court established by an Act of 
                        Congress.''.
    (c) Public Safety and Community Policing Grant Program.--Section 
1702(c) of title I of the Omnibus Crime Control and Safe Streets Act of 
1968 (42 U.S.C. 3796dd-1(c)) is amended--
            (1) in paragraph (10), by striking ``and'' at the end;
            (2) in paragraph (11), by striking the period at the end 
        and inserting ``; and''; and
            (3) by adding at the end the following:
            ``(12) if any part of funds received from a grant made 
        under this subchapter is to be used to develop or improve a DNA 
        analysis capability in a forensic laboratory, or to obtain or 
        analyze DNA samples for inclusion in the Combined DNA Index 
        System (CODIS), certify that--
                    ``(A) DNA analyses performed at such laboratory 
                will satisfy or exceed the current standards for a 
                quality assurance program for DNA analysis, issued by 
                the Director of the Federal Bureau of Investigation 
                under section 210303 of the DNA Identification Act of 
                1994 (42 U.S.C. 14131);
                    ``(B) DNA samples and analyses obtained and 
                performed by such laboratory will be accessible only--
                            ``(i) to criminal justice agencies for law 
                        enforcement purposes;
                            ``(ii) in judicial proceedings, if 
                        otherwise admissible under applicable statutes 
                        and rules;
                            ``(iii) for criminal defense purposes, to a 
                        defendant, who shall have access to samples and 
                        analyses performed in connection with the case 
                        in which the defendant was charged or 
                        convicted; or
                            ``(iv) if personally identifiable 
                        information is removed, for a population 
                        statistics database, for identification 
                        research and protocol development purposes, or 
                        for quality control purposes;
                    ``(C) the laboratory and each analyst performing 
                DNA analyses at the laboratory will undergo, at regular 
                intervals not exceeding 180 days, external proficiency 
                testing by a DNA proficiency testing program that meets 
                the standards issued under section 210303 of the DNA 
                Identification Act of 1994 (42 U.S.C. 14131); and
                    ``(D) the State will--
                            ``(i) preserve all biological material 
                        secured in connection with a State criminal 
                        case for not less than the period of time that 
                        biological material is required to be preserved 
                        under section 2292 of title 28, United States 
                        Code, in the case of a person incarcerated in 
                        connection with a Federal criminal case; and
                            ``(ii) make DNA testing available to any 
                        person convicted in State court to the same 
                        extent, and under the same conditions, that DNA 
                        testing is available under section 2291 of 
                        title 28, United States Code, to a person 
                        convicted in a court established by an Act of 
                        Congress.''.
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