[Congressional Record Volume 146, Number 149 (Wednesday, December 6, 2000)]
[Senate]
[Pages S11645-S11648]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              DNA ANALYSIS BACKLOG ELIMINATION ACT OF 2000

  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the Senate 
proceed to the consideration of H.R. 4640, which is at the desk.
  The PRESIDING OFFICER. The clerk will report the bill by title.
  The legislative clerk read as follows:

       A bill (H.R. 4640) to make grants to States for carrying 
     out DNA analyses for use in the Combined DNA Index System of 
     the Federal Bureau of Investigation, to provide for the 
     collection and analysis of DNA samples from certain violent 
     and sexual offenders for use in such system, and for other 
     purposes.

  There being no objection, the Senate proceeded to consider the bill.


                           Amendment No. 4359

  Mr. GRASSLEY. Mr. President, it is my understanding that Senator 
Leahy has an amendment at the desk.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Iowa [Mr. Grassley], for Mr. Leahy, 
     proposes an amendment numbered 4359.

  Mr. GRASSLEY. I ask unanimous consent that reading of the amendment 
be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To express the sense of Congress regarding the obligation of 
  grantee States to ensure access to post-conviction DNA testing and 
                  competent counsel in capital cases)

       At the appropriate place, insert the following:

     SEC. ____. SENSE OF CONGRESS REGARDING THE OBLIGATION OF 
                   GRANTEE STATES TO ENSURE ACCESS TO POST-
                   CONVICTION DNA TESTING AND COMPETENT COUNSEL IN 
                   CAPITAL CASES.

       (a) Findings.--Congress finds that--
       (1) over the past decade, deoxyribo-nucleic acid testing 
     (referred to in this section as ``DNA testing'') has emerged 
     as the most reliable forensic technique for identifying 
     criminals when biological material is left at a crime scene;
       (2) because of its scientific precision, DNA testing can, 
     in some cases, conclusively establish the guilt or innocence 
     of a criminal defendant;
       (3) in other cases, DNA testing may not conclusively 
     establish guilt or innocence, but may have significant 
     probative value to a finder of fact;
       (4) DNA testing was not widely available in cases tried 
     prior to 1994;
       (5) new forensic DNA testing procedures have made it 
     possible to get results from minute samples that could not 
     previously be tested, and to obtain more informative and 
     accurate results than earlier forms of forensic DNA testing 
     could produce, resulting in some cases of convicted inmates 
     being exonerated by new DNA tests after earlier tests had 
     failed to produce definitive results;
       (6) DNA testing can and has resulted in the post-conviction 
     exoneration of more than 75 innocent men and women, including 
     some under sentence of death;
       (7) in more than a dozen cases, post-conviction DNA testing 
     that has exonerated an innocent person has also enhanced 
     public safety by providing evidence that led to the 
     apprehension of the actual perpetrator;
       (8) experience has shown that it is not unduly burdensome 
     to make DNA testing available to inmates in appropriate 
     cases;
       (9) under current Federal and State law, it is difficult to 
     obtain post-conviction DNA testing because of time limits on 
     introducing newly discovered evidence;
       (10) the National Commission on the Future of DNA Evidence, 
     a Federal panel established by the Department of Justice and 
     comprised of law enforcement, judicial, and scientific 
     experts, has urged that post-conviction DNA testing be 
     permitted in the relatively small number of cases in which it 
     is appropriate, notwithstanding procedural rules that could 
     be invoked to preclude such testing, and notwithstanding the 
     inability of an inmate to pay for the testing;
       (11) only a few States have adopted post-conviction DNA 
     testing procedures;
       (12) States have received millions of dollars in DNA-
     related grants, and more funding is needed to improve State 
     forensic facilities and to reduce the nationwide backlog of 
     DNA samples from convicted offenders and crime scenes that 
     need to be tested or retested using upgraded methods;
       (13) States that accept such financial assistance should 
     not deny the promise of truth and justice for both sides of 
     our adversarial system that DNA testing offers;
       (14) post-conviction DNA testing and other post-conviction 
     investigative techniques have shown that innocent people have 
     been sentenced to death in the United States;
       (15) a constitutional error in capital cases is incompetent 
     defense lawyers who fail to present important evidence that 
     the defendant may have been innocent or does not deserve to 
     be sentenced to death; and
       (16) providing quality representation to defendants facing 
     the loss of liberty or life is essential to fundamental due 
     process and the speedy final resolution of judicial 
     proceedings.
       (b) Sense of Congress.--It is the sense of Congress that--
       (1) Congress should condition forensic science-related 
     grants to a State or State forensic facility on the State's 
     agreement to ensure post-conviction DNA testing in 
     appropriate cases; and

[[Page S11646]]

       (2) Congress should work with the States to improve the 
     quality of legal representation in capital cases through the 
     establishment of standards that will assure the timely 
     appointment of competent counsel with adequate resources to 
     represent defendants in capital cases at each stage of those 
     proceedings.

  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the 
amendment be agreed to.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 4359) was agreed to.
  Mr. DeWINE. Mr. President, I rise today to hail the impending passage 
of H.R. 4640--the DNA Backlog Elimination Act. This is a House 
companion bill to S. 903--the Violent Offender DNA Identification Act 
of 1999--which I introduced with my colleague from Wisconsin, Senator 
Kohl.
  While existing anticrime technology can allow us to solve many 
violent crimes that occur in our communities, in order for this 
technology to work, it must be used. I have been a longtime advocate 
for use of the Combined DNA Indexing System (CODIS), which serves as a 
national DNA data base to profile convicted offender DNA. In fact, 
during consideration of the Anti-Terriorism Act of 1996, I proposed a 
provision under which Federal convicted offenders' DNA would be 
included in CODIS. Unfortunately, the Department of Justice never 
implemented this law, though currently all 50 States collect DNA from 
convicted offenders.
  One of the purposes of this legislation is to expressly require the 
collection of DNA samples from federally convicted felons and military 
personnel convicted of similar offenses. Collection of convicted 
offender DNA is crucial to solving many of the crimes occurring in our 
communities. Statistics show that many of these violent felons will 
repeat their crimes once they are back in society. Since the Federal 
Government does not collect DNA from these felons, however, the ability 
of law enforcement to rapidly identify likely suspects is slowed. 
Collection of such data is critical.
  The case of Mrs. Debbie Smith of Virginia underscores the importance 
of collection of DNA from convicted offenders. Debbie Smith was at her 
home in the middle of the day when a masked intruder entered her 
unlocked back door. Her husband, a police lieutenant, was upstairs 
sleeping. The stranger blindfolded Mrs. Smith and took her to a wooded 
area behind her house where he robbed and repeatedly raped her. After 
warning Mrs. Smith not to tell, the assailant let her go. She told her 
husband, who reported the incident, then took her to the hospital where 
evidence was collected for DNA analysis.
  Debbie Smith's rape experience was so terrible that she contemplated 
taking her own life. She continued to live in constant fear until 6\1/
2\ years later when a State crime laboratory found a CODIS match with 
an inmate then serving in jail for abduction and robbery. In fact, the 
offender was jailed on another offense 1 month after raping her. There 
are thousands of other crimes the DNA database can solve. With CODIS we 
can grant countless victims, like Mrs. Smith, peace of mind and bring 
their attackers swiftly to justice.
  We need to do everything we can to make sure law enforcement has 
access to these tools. A major obstacle facing State and local crime 
laboratories are the backlogs of convicted offender samples. The 
Federal Bureau of Investigation estimates that there are almost one-
half million convicted offender samples in State and local laboratories 
awaiting analysis. Increasing demand for DNA analysis in active cases, 
and limited resources, are reducing the ability of State and local 
crime laboratories to analyze their convicted offender backlogs. While 
I introduced, and Congress passed, the Crime Identification Technology 
Act of 1998 to address the long-term needs of crime laboratories, many 
crime laboratories need immediate assistance to address their short-
term backlogs that will help law enforcement solve crime.
  H.R. 4640 would provide $170 million over 4 years to help State and 
local crime laboratories address their convicted offender backlogs. 
Violent criminals should not be able to evade responsibility simply 
because a State lacks the resources to analyze their DNA samples, or 
because a loophole excludes certain Federal offenders from our national 
database. This legislation will be a huge asset for our local law 
enforcers in their day-to-day fight against crime.
  I thank Representative McCollum for his efforts.
  Mr. LEAHY. Mr. President, over the past decade DNA analysis has 
emerged as the most reliable forensic technique for identifying 
criminals when biological material is left at a crime scene. Because of 
its scientific precision, DNA testing can, in some cases, conclusively 
establish a suspect's guilt or innocence. In other cases, DNA testing 
may not conclusively establish guilt or innocence, but may have 
significant probative value for investigators.
  While DNA's power to root out the truth has been a boon to law 
enforcement, it has also been the salvation of law enforcement's 
mistakes--those who for one reason or another, are prosecuted and 
convicted of crimes that they did not commit. In more than 75 cases in 
the United States and Canada, DNA evidence has led to the exoneration 
of innocent men and women who were wrongfully convicted. This number 
includes at least 9 individuals sentenced to death, some of whom came 
within days of being executed. In more than a dozen cases, moreover, 
post-conviction DNA testing that has exonerated an innocent person has 
also enhanced public safety by providing evidence that led to the 
apprehension of the real perpetrator.
  Clearly, DNA testing is critical to the effective administration of 
justice in 21st century America.
  As DNA testing has moved to the front lines of the war on crime, our 
Nation's forensic labs have experienced a significant increase in their 
caseloads, both in number and complexity. In the six years since 
Congress established the Combined DNA Index System. States have been 
busy collecting DNA samples from convicted offenders for analysis and 
indexing. Increased Federal funding for State and local law enforcement 
programs has resulted in more and better trained police officers who 
are collecting immense amounts of evidence that can and should be 
subjected to crime laboratory analysis.
  Funding has simply not kept pace with this increasing demand, and 
State crime laboratories are now seriously bottlenecked. Backlogs have 
impeded the use of new technologies like DNA testing in solving cases 
without suspects--and reexamining cases in which there are strong 
claims of innocence --as laboratories are required to give priority 
status to those cases in which a suspect is known. In some parts of the 
country, investigators must wait several months--and sometimes more 
than a year--to get DNA test results from rape and other violent crime 
evidence. Solely for lack of funding, critical evidence remains 
untested while rapists and killers remain at large, victims continue to 
anguish, and statutes of limitation on prosecution expire.
  Let me describe the situation in my home State. The Vermont Forensics 
Laboratory is currently operating in an old Vermont State Hospital 
building in Waterbury, Vermont. Though it is proudly one of only two 
fully-accredited forensics labs in New England, it is trying to do 21st 
century science in a 1940's building. The lab has very limited space 
and no central climate control--both essential conditions for precise 
forensic science. It also has a large storage freezer full of untested 
DNA evidence from unsolved cases, for which there are no other leads 
besides the untested evidence. The evidence is not being processed 
because the lab does not have the space, equipment or manpower.

  I commend the scientists and lab personnel at the Vermont Forensics 
Laboratory for the fine work they do everyday under difficult 
circumstances. But the people of the State of Vermont deserve better. 
This is our chance to provide them with the resources they deserve.
  Passage of the DNA Analysis Backlog Elimination Act of 2000, H.R. 
4640, will give States like Vermont the help they desperately need to 
reduce the backlog of untested crime scene evidence from unsolved 
crimes and untested convicted offender samples. It allocates $170 
million over the next four years for grants to States to increase the 
capacity of their forensic laboratories and carry out DNA analyses of 
backlogged evidence. Senator Schumer and

[[Page S11647]]

I have pressed for increased appropriations for these purposes. This 
authorization bill is a step in the right direction.
  In addition to the problem of unanalyzed crime scene and convicted 
offender evidence, there is an urgent need to address the gap in 
coverage of the national DNA index that has left out Federal, military, 
and District of Columbia offenders. The inability to include these 
offenders in the national index has seriously frustrated efforts to 
solve crimes and prevent further crimes. The bill that the Senate 
passes today eliminates the gap in coverage by authorizing the Bureau 
of Prisons and other Federal agencies to collect, analyze, and index 
DNA samples from individuals who have been convicted of Federal 
offenses of a violent or sexual nature. The bill also authorizes needed 
funding for these purposes, which Senator Schumer and I have been 
working to include in this years' appropriations bills.
  While I support H.R. 4640, I believe it falls short in one critical 
respect: It fails to address the urgent need to increase access to DNA 
testing for prisoners who were convicted before this truth-seeking 
technology became widely available. Prosecutors and law enforcement 
officers across the country use DNA testing to prove guilt, and rightly 
so. By the same token, however, it should be used to do what is equally 
scientifically reliable to do--prove innocence.
  I was greatly heartened earlier this month when the Governor of 
Virginia finally pardoned Earl Washington, after new DNA tests 
confirmed what earlier DNA tests had shown: He was the wrong guy. He 
was the 88th wrong guy discovered on death row since the reinstatement 
of capital punishment. His case only goes to show that we cannot sit 
back and assume that prosecutors and courts will do the right thing 
when it comes to DNA. It took Earl Washington years to convince 
prosecutors to do the very simple tests that would prove his innocence, 
and more time still to win a pardon. And he is still in prison today.
  States like Virginia continue to stonewall on requests for DNA 
testing. They continue to hide behind time limits and procedural 
default rules to deny prisoners the right to present DNA test results 
in court. They are still destroying the DNA evidence that could set 
innocent people free. These sorts of practices must stop. We should not 
pass up the promise of truth and justice for both sides of our 
adversarial system that DNA evidence offers.

  By passing H.R. 4640, we substantially increase funding to increase 
the capacity of State and local forensic labs to carry out DNA analysis 
of crime scene evidence and convicted offender samples. That is an 
appropriate use of Federal funds. But we at least ought to require that 
this truth-seeking technology be made available to both sides.
  I proposed a modest Sense of Congress amendment to H.R. 4640, which 
the Senate is passing today. It describes how DNA testing can and has 
resulted in the post-conviction exoneration of scores of innocent men 
and women, including some under sentence of death, and expresses the 
sense of Congress that we should condition forensic science-related 
grants to a State or State forensic facility on the State's agreement 
to ensure post-conviction DNA testing in appropriate cases. Because 
post-conviction DNA testing has shown that innocent people are 
sentenced to death in this country with alarming frequency, and because 
the most common constitutional error in capital cases is egregiously 
incompetent defense lawyering, my amendment also calls on Congress to 
work with the States to improve the quality of legal representation in 
capital cases through the establishment of counsel standards.
  I introduced legislation in this Congress that would have 
accomplished both of these things. The Innocence Protection Act of 2000 
contains meaningful reforms that I believe could save innocent lives. 
As the 106th Congress winds down, we have 14 cosponsors in the Senate, 
and about 80 in the House. We have Democratic and Republican 
cosponsors, supporters of the death penalty and opponents. President 
Clinton, Vice President Gore, and Attorney General Reno have all 
expressed support for the bill.
  Tragically, real reform of our nation's capital punishment system 
foundered on the shoals of election-year politics. But with the Sense 
of Congress provision that we pass today, at least we have agreed on a 
blueprint for effective reform legislation in the 107th Congress.
  The law enforcement issues addressed by H.R. 4640 are important, but 
as FBI Director Louis Freeh has acknowledged, ``Post-conviction relief 
is an equally important issue that requires a solution.'' In a recent 
letter, Director Freeh pledged to work with me on post-conviction 
relief issues in the next Congress and I look forward to working with 
the Director.
  Each day that DNA evidence goes uncollected and untested, solvable 
crimes remain unsolved, and people across the country are needlessly 
victimized. I hope that the House will move quickly to pass H.R. 4640 
as amended before it winds up its work for the year.
  Mr. KOHL. Mr. President, I rise today in support of H.R. 4640, the 
DNA Analysis Backlog Elimination Act of 2000, which is the companion 
bill to my Violent Offender DNA Identification Act of 1999. This 
bipartisan measure will put more criminals behind bars by correcting 
practical and legal shortcomings that leave too much crucial DNA 
evidence unused and too many violent crimes unsolved.
  Currently, all 50 states require DNA samples to be obtained from 
certain convicted offenders, and these samples increasingly can be 
shared through a national DNA database established by Federal law. This 
national database--part of the Combined Database Index System (CODIS)--
enables law enforcement officials to link DNA evidence found at a crime 
scene with any suspect whose DNA is already on file. By identifying 
repeat offenders, this DNA sharing can and does make a difference. 
Already the FBI reports that almost 1400 investigations have been aided 
by the DNA database, solving numerous crimes. And in my home state of 
Wisconsin, experience proves that DNA ``sharing'' pays off. In fact, 
just a week before the statute of limitations ran out in a multiple 
rape investigation, DNA matching helped identify a serial rapist 
responsible for three rapes in Kenosha and a fourth in Racine. As a 
result, he's currently serving an 80-year sentence. Without DNA 
databases, suspects like this otherwise might never be discovered--or 
convicted.
  As valuable as this system is, it is not as effective as it could--or 
should--be. The effectiveness of the database is directly related to 
the number of DNA profiles it contains. For every 1,000 new profiles, 
we can expect to find at least one match, and with every new profile 
added, the odds for a match increase. However, there are currently two 
major obstacles to the effective functioning of the database. Our 
measure would correct these problems and make the database far more 
productive.
  First, thousands of DNA samples that have already been collected 
still must be analyzed before they can be entered into the national 
database. The FBI estimates that there is a backlog of over 700,000 DNA 
samples from convicted offenders languishing, unanalyzed, in state 
crime laboratories for simple lack of funding.
  Our measure will reduce the backlog of unanalyzed samples by 
providing the funding necessary to analyze them and put them ``on-
line.'' It provides $45 million over three years to erase the backlog 
of the 700,000 unanalyzed samples and the almost-as-pressing backlog of 
approximately 220,000 more samples that need to be reanalyzed using 
state-of-the-art methods.
  Indeed, easing this backlog was the lead recommendation of the 
National Commission on the Future of DNA Evidence appointed by the 
Attorney General. As the Commission explained, ``the power of the CODIS 
program lies in the sheer numbers of convicted offender samples that 
are processed and entered into the database.''
  Second, for some inexplicable reason, we do not collect samples from 
Federal and D.C. offenders. So while the database can identify a 
suspect whose DNA is on file in one of the 50 states, it generally 
won't catch a Federal or D.C. offender. Under current law, that suspect 
will not be identified; his crime may not be solved; and he could get 
off scot-free. We thought we already closed this loophole through 1996 
legislation which provides that the FBI ``may expand

[[Page S11648]]

[the database] to include Federal crimes and crimes committed in the 
District of Columbia,'' but Federal officials claim more express 
authority is necessary. We are not so sure they're right, but there is 
no need to wait any longer.

  Our measure closes once and for all this loophole that allows DNA 
samples from Federal (including military) and Washington, D.C. 
offenders to go uncollected. Under our proposal, DNA samples would be 
obtained from any Federal offender--or any D.C. offender under Federal 
custody or supervision--convicted of a violent crime or other 
qualifying offense. And it would require the collection of samples from 
juveniles found delinquent under Federal law for conduct that would 
constitute a violent crime if committed by an adult. Our proposal was 
prepared with the assistance of the FBI, the Administrative Office of 
the U.S. Courts, the Bureau of Prisons, the U.S. Parole Commission, 
agencies within the District of Columbia responsible for supervision of 
released felons, and the Department of Defense.
  Modern crime-fighting technology like DNA testing and DNA databases 
make law enforcement much more effective. But in order to take full 
advantage of these valuable resources, we need this measure to make the 
database as comprehensive--and as productive--as possible. Violent 
criminals should not be able to evade arrest simply because a state 
didn't analyze its DNA samples or because an inexcusable loophole 
leaves Federal and D.C. offenders out of the DNA database. This measure 
will ensure that we apprehend violent repeat offenders, regardless of 
whether they originally violated state, Federal or D.C. law. And, by 
collecting more DNA evidence and utilizing the best of DNA technology, 
we also can help exonerate individual suspects whose DNA does not match 
with particular crime scenes.
  Mr. President, this measure will help police use modern technology to 
solve crimes and prevent repeat offenders from committing new ones. Let 
me credit Senators DeWine, Hatch, Leahy and Congressman McCollum for 
their hard work which is finally paying off.
  Mr. GRASSLEY. I ask unanimous consent the bill be considered read a 
third time and passed, the motion to reconsider be laid upon the table, 
and that any statements relating to the bill be printed in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (H.R. 4640), as amended, was read the third time and passed.

                          ____________________