No. 12-207 In The Supreme Court of the United States ____________________________ STATE OF MARYLAND, Petitioner, v. ALONZO JAY KING JR., Respondent. _____________________________ On Petition for Writ of Certiorari To the Court of Appeals of Maryland _____________________________ BRIEF AMICI CURIAE MARYLAND LEGISLATORS IN SUPPORT OF PETITIONER _____________________________ CLIFFORD M. SLOAN Counsel of Record ALEX T. HASKELL 1440 New York Ave., N.W. Washington, D.C. 20005 (202) 371-7000 [email protected]Counsel for Amici Curiae
Transcript
No. 12-207
In The
Supreme Court of the United States
____________________________
STATE OF MARYLAND,
Petitioner,
v.
ALONZO JAY KING JR.,
Respondent._____________________________
On Petition for Writ of CertiorariTo the Court of Appeals of Maryland
_____________________________
BRIEF AMICI CURIAE MARYLAND LEGISLATORS IN
SUPPORT OF PETITIONER
_____________________________
CLIFFORD M. SLOAN
Counsel of RecordALEX T. HASKELL
1440 New York Ave., N.W.Washington, D.C. 20005(202) [email protected]
Counsel for Amici Curiae
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................... ii
INTEREST OF AMICI CURIAE ............................. 1
SUMMARY OF ARGUMENT.................................. 3
I. THE SECTION OF THEMARYLAND DNACOLLECTION ACT AT ISSUEPASSED WITH THEOVERWHELMING SUPPORTOF MARYLAND LEGISLATORS,EXECUTIVES, AND LAWENFORCEMENT OFFICIALS .......... 5
II. THE LAW’S “SUNSETPROVISION” UNDERSCORESTHE NEED FOR THISCOURT’S REVIEW ............................ 8
Legislative Position of the Prince George’sCnty. Gov’t on S.B. 211to the Senate Judicial ProceedingsComm. (Feb. 13, 2008)......................................... 6
Letter from A. R. Smith, City of HagerstownDep’t of Police, Chief, to Senator Brian E.Frosh and Other Members of the SenateJudicial Proceedings Comm. (Jan. 30, 2008) .. 6, 7
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Letter from David A. Goad,Sheriff, Allegany Cnty., to Senator Brian E.Frosh (Jan. 30, 2008) ........................................... 7
Letter from John J. McCarthy,State’s Attorney, Montgomery Cnty., andIke Leggett, Cnty. Exec., MontgomeryCnty., to Senator Brian E. Frosh andDelegate Joseph F. Vallario (Mar. 7, 2008) ........ 7
Letter from John “Rodney” Bartlett, Jr.,President, Fraternal Order of Police, Md.State Lodge, to Senator Brian E. Frosh(Feb. 27, 2008)...................................................... 7
Letter from Sheila Dixon,Mayor, City of Baltimore, to Senator BrianE. Frosh (Mar. 11, 2008)...................................... 6
S.B. 211/H.B. 370, 425th Leg.,Legislative History (Md. 2008)............................ 5
Statement of Colonel Terrence Sheridan,Superintendent, Md. State Police, to theSenate Judicial Proceedings Comm. on S.B.211/H.B. 370 (Feb. 13, 2008) ............................... 7
Statement of Governor Martin O’Malley, Governor,State of Md., to the Senate Judicial ProceedingsComm. on S.B. 211 (Feb. 13, 2008) ..................... 6
Testimony of the Md. Municipal League to theSenate Judicial Proceedings Comm. on S.B.211 (Feb. 13, 2008)............................................... 6
INTEREST OF AMICI CURIAE1
Amici are Maryland legislators from bothpolitical parties.
Kathryn L. Afzali has been a Member of theMaryland House of Delegates since 2011. Sherepresents District 4A (Frederick County).
Samir Arora has been a Member of theMaryland House of Delegates since 2011. Herepresents District 19 (Montgomery County).
Charles E. Barkley has been a Member of theMaryland House of Delegates since 1999. Herepresents District 39 (Montgomery County).
James Brochin has been a Member of theMaryland Senate since 2003. He represents District42 (Baltimore County).
Galen R. Clagett has been a Member of theMaryland House of Delegates since 2003. Herepresents District 3A (Frederick County).
John W. E. Cluster, Jr. has been a Member ofthe Maryland House of Delegates since 2011, andwas a Member from 2003 to 2007. He representsDistrict 8 (Baltimore County).
1 Counsel of record for both parties were timely notified ofthe intention to file this brief. Letters of consent by the partiesto the filing of this brief have been lodged with the Clerk of thisCourt. No counsel for any party authored this brief in whole orin part, and no person or entity other than amici made anymonetary contribution to the preparation or submission of thisbrief.
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Richard F. Colburn has been a Member of theMaryland Senate since 1995. He represents District37 (Caroline, Dorchester, Talbot and WicomicoCounties).
Steven J. DeBoy, Sr. has been a Member of theMaryland House of Delegates since 2003. Herepresents District 12A (Baltimore and HowardCounties).
Donald B. Elliott has been a Member of theMaryland House of Delegates since 1987. Herepresents District 4B (Carroll and FrederickCounties).
Brian J. Feldman has been a Member of theMaryland House of Delegates since 2003. Herepresents District 15 (Montgomery County).
Barbara A. Frush has been a Member of theMaryland House of Delegates since 1995. Sherepresents District 21 (Anne Arundel and PrinceGeorge’s Counties).
Jolene Ivey has been a Member of the MarylandHouse of Delegates since 2007. She representsDistrict 47 (Prince George’s County).
Kevin Kelly has been a Member of the MarylandHouse of Delegates since 1999, and was a Memberfrom 1987 to 1995. He represents District 1B(Allegany County).
Nicholaus R. Kipke has been a Member of theMaryland House of Delegates since 2007. Herepresents District 31 (Anne Arundel County).
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Michael A. McDermott has been a Member ofthe Maryland House of Delegates since 2011. Herepresents District 38B (Wicomico and WorcesterCounties).
Joseph J. Minnick has been a Member of theMaryland House of Delegates since 1995, and was amember from 1988 to 1991. He represents District 6(Baltimore County).
Frank S. Turner has been a Member of theMaryland House of Delegates since 1995. Herepresents District 13 (Howard County).
Cathleen M. Vitale has been a Member of theMaryland House of Delegates since 2011. Sherepresents District 33A (Anne Arundel County).
C.T. Wilson has been a Member of the MarylandHouse of Delegates since 2011. He representsDistrict 28 (Charles County).
SUMMARY OF ARGUMENT
The opinion of the Court of Appeals ofMaryland in Alonzo Jay King, Jr. v. State ofMaryland, 42 A.3d 549 (Md. 2012) declaredunconstitutional a vitally important, and broadlysupported, section of the Maryland DNA CollectionAct, passed in 2008 by the Maryland GeneralAssembly. The section at issue requires thecollection of DNA samples from individuals chargedwith specified crimes. Md. Code Ann., Pub. SafetyArt., § 2-504(a)(3) (2011 Repl. Vol.).
Amici agree with the arguments for certiorariset forth in the petition. For the benefit of this Court,
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and based on the Maryland General Assembly’sunique role as the entity responsible for theoverturned law, amici respectfully submit this briefto highlight two points.
First, the law addresses an issue ofparamount importance and received broad supportfrom Maryland legislators, the Maryland Governorand local government executives, and Maryland lawenforcement authorities.
Second, the fact that the current law containsa “sunset provision” providing for expiration afterDecember 31, 2013 in no way undermines theimportance of reviewing the Court of Appeals’decision and the issues it addresses. To the contrary,it highlights the importance of this Court’s review: ifthis Court does not review the far-reaching,erroneous decision of the Court of Appeals (whichunquestionably conflicts with other federal and stateappellate decisions), the General Assembly will beunable to extend or re-enact the disputed provisionin the lone legislative session that will occur beforeits expiration. If, as amici believe, the Court ofAppeals’ decision misconceives the governingconstitutional principles, the General Assembly’sability to extend and enact this important lawprotecting public safety through accurate crimedetection should not be wrongly foreclosed by amistaken interpretation of what the Constitutionprohibits.
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ARGUMENT
I. THE SECTION OF THE MARYLAND DNACOLLECTION ACT AT ISSUE PASSEDWITH THE OVERWHELMING SUPPORT OFMARYLAND LEGISLATORS, EXECUTIVES,AND LAW ENFORCEMENT OFFICIALS
In 1994, the Maryland General Assemblypassed the DNA Collection Act. Md. Code Ann., Pub.Safety Art., § 2-504 (2011 Repl. Vol.). In 2008,acting pursuant to its fundamental obligation toprovide a fair and effective criminal justice system,the General Assembly amended the Act to allow forthe collection of DNA samples from persons chargedwith certain qualifying offenses. Id. § 2-504(a)(3).The 2008 amendments allow law enforcementofficials to identify individuals accused of seriouscrimes, to resolve open criminal investigations moreefficiently, and to pursue repeat offenders moreeffectively.
Maryland legislators overwhelminglysupported the 2008 amendments. The MarylandSenate and House of Delegates passed theamendments by sweeping margins, with bipartisansupport. The Maryland Senate approved the bill bya 33 to 10 vote; it had been approved by the JudicialProceedings Committee on a 9 to 2 vote. The Houseof Delegates likewise passed the bill withoverwhelming support. The Delegates approved thebill on a 131 to 8 vote; the House JudiciaryCommittee had approved it on a 19 to 3 vote. S.B.211/H.B. 370, 425th Leg., Legislative History (Md.2008); S.B. 211, 425th Leg., Judicial Proceedings
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Comm. Voting Record (Md. 2008); H.B. 370, 425thLeg., Judiciary Comm. Voting Record (Md. 2008).
In addition to legislators, Marylandgovernment executives strongly supported theamendments. Governor Martin O’Malley urged theSenate and House of Delegates to pass theirrespective bills, stating that the “foremostresponsibility of government is to protect its citizensfrom violent crime” and arguing that themodification of Maryland’s DNA law was “necessaryif we hope to significantly decrease” the occurrenceof such crimes. Statement of Governor MartinO’Malley, Governor, State of Md., to the SenateJudicial Proceedings Comm. on S.B. 211 (Feb. 13,2008) (App. 1a-5a). Local government officialsthroughout the state, including the Mayor ofBaltimore, the Prince George’s County government,and executive officials from various municipalitiessimilarly supported the bill. See, e.g., Letter fromSheila Dixon, Mayor, City of Baltimore, to SenatorBrian E. Frosh (Mar. 11, 2008) (App. 6a-8a);Legislative Position of the Prince George’s Cnty.Gov’t on S.B. 211 to the Senate Judicial ProceedingsComm. (Feb. 13, 2008) (App. 9a-10a); see alsoTestimony of the Md. Municipal League to theSenate Judicial Proceedings Comm. on S.B. 211 (Feb.13, 2008) (App. 11a-12a).
Moreover, Maryland law enforcementofficials—those on the front lines in combating andinvestigating crime—also vigorously supported the2008 amendments. City police departments, countysheriffs, state’s attorneys, and various associationsrepresenting the law enforcement communityadvocated passage. See, e.g., Letter from A. R. Smith,
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City of Hagerstown Dep’t of Police, Chief, to SenatorBrian E. Frosh and Other Members of the SenateJudicial Proceedings Comm. (Jan. 30, 2008) (App.13a-14a); Letter from David A. Goad, Sheriff,Allegany Cnty., to Senator Brian E. Frosh (Jan. 30,2008) (App. 15a-16a); Letter from John J. McCarthy,State’s Attorney, Montgomery Cnty., and Ike Leggett,Cnty. Exec., Montgomery Cnty., to Senator Brian E.Frosh and Delegate Joseph F. Vallario (Mar. 7, 2008)(App. 17a-19a); Letter from John “Rodney” Bartlett,Jr., President, Fraternal Order of Police, Md. StateLodge, to Senator Brian E. Frosh (Feb. 27, 2008)(App. 20a-21a). Colonel Terrence Sheridan,Superintendent of the Maryland State Police,testified in the Senate and the House of Delegates,emphasizing that it was the “body’s moral obligationto allow for the expansion of a technology which hasproven itself capable of providing the criminal justicesystem with conclusive evidence of guilt and moreimportantly, of innocence.” Statement of ColonelTerrence Sheridan, Superintendent, Md. State Police,to the Senate Judicial Proceedings Comm. on S.B.211 (Feb. 13, 2008) (App. 22a to 29a).
The provision found unconstitutional by theCourt of Appeals thus was adopted with broadsupport by the Maryland legislators, governmentexecutives, and law enforcement authorities chargedwith the solemn duty of providing the public with asound and responsible criminal justice system.
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II. THE LAW’S “SUNSET PROVISION”UNDERSCORES THE NEED FOR THISCOURT’S REVIEW
Section 2-504(a)(3) of the Maryland DNACollection Act contains a “sunset provision” that willcause the portion of the Act to lapse after December31, 2013. Md. Code Ann., Pub. Safety Art., § 2-504(a)(3) (2011 Repl. Vol.). The Court of Appeals’opinion, if not reviewed, will erroneously prevent theAssembly from extending and enacting the law atissue, notwithstanding its importance, its broadpublic support, and its constitutionality.
Each year, the Maryland General Assemblyconvenes annually for one ninety-day legislativesession between early January and earlyApril. See Md. Const. art. III, § 14. But for theCourt of Appeals’ opinion, the General Assembly willconsider (and, in amici’s respectful opinion,reauthorize) the section of the Act at issue in thiscase during the 2013 legislative session. Given thesweeping margins by which the Senate and House ofDelegates passed the 2008 amendments, the strongsupport from Maryland executives and lawenforcement officials, and the publicly beneficialresults from the law’s enactment, it is reasonable toassume that the General Assembly would vote toextend and reauthorize the provision if so permitted.At the very least, the Assembly would be able to givefull consideration to this critical public issue.
Unfortunately, the Court of Appeals hasseverely and unjustifiably circumscribed thelegislative authority of the General Assembly on thisissue through its opinion in King. In so doing, the
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Court of Appeals has left the General Assemblyincapacitated, unable to provide Maryland’s criminaljustice system with a strongly supported tool foundconstitutional by courts throughout the country. 2
The Court of Appeals’ decision, moreover, willundermine national law enforcement efforts—alsocontrary to the intent of the state legislators, thegovernment executives, and the state and local lawenforcement authorities who worked for passage—because DNA samples collected by the state areentered into the Federal Bureau of Investigation’snationwide DNA database.
By granting the State of Maryland’s Petitionfor Writ of Certiorari, this Court can consider theimportant and recurring issues raised by the Courtof Appeals’ decision. Granting the Writ of Certiorariwill allow the Court to provide essential guidance toMaryland legislators, law enforcement officials, andjudges regarding the scope of the FourthAmendment and the scope of the Assembly’spermissible discretion on this important issue, whichnow has been sharply truncated by the Court ofAppeals. Such guidance is similarly required outsideMaryland, by lawmakers in the twenty-six otherstates that currently provide for the collection of
2 The decision in King conflicts with decisions of the U. S.Courts of Appeals for the Third and Ninth Circuits as well asthe Virginia Supreme Court, which have upheld statutessimilar to Maryland’s DNA Collection Act. See United States v.Mitchell, 652 F.3d 387 (3d Cir. 2011), cert. denied, 132 S. Ct.1741 (2012); Haskell v. Harris, 669 F.3d 1049, reh’g en bancgranted, 686 F.3d 1121 (9th Cir. 2012); Anderson v. Com-monwealth, 650 S.E.2d 702 (Va. 2007), cert. denied sub nom.Anderson v. Virginia, 553 U.S. 1054 (2008).
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DNA samples from arrestees, and in the statescurrently considering adopting such legislation.Particularly given the severely restricted position inwhich the Maryland General Assembly now has beenplaced, and the urgency with which guidance isneeded nationwide, this case is the proper vehicle forresolving this crucial Fourth Amendment question.
CONCLUSION
For the foregoing reasons, and those stated inthe Petition, amici respectfully request that theCourt grant the Petition for Writ of Certiorari.
Respectfully submitted,
CLIFFORD M. SLOAN
Counsel of RecordALEX T. HASKELL
1440 New York Ave., N.W.Washington, D.C. 20005(202) [email protected]
September 17, 2012
APPENDIX
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STATE OF MARYLANDOFFICE OF THE GOVERNOR
MARTIN O’MALLEYGOVERNOR
STATE HOUSE100 STATE CIRCLE
ANNAPOLIS, MARYLAND 21401 -1925410-974-3901
TOLL FREE: 1-800-811-8336TTY USERS CALL VIA MD RELAY
Statement of Governor Martin O’Malley
SENATE BILL 211
Public Safety - Statewide DNA Data BaseSystem - Crimes of
Violence, Burglary, and Breaking and Enteringa Motor Vehicle - Sample
Collections on Arrest
Senate Judicial Proceedings Committee
February 13, 2008
The foremost responsibility of government is toprotect its citizens from violent crime and thepredators who seek to destroy the safety andsecurity of our communities. Swift apprehensions
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and the just convictions of violent felons increasepublic safety throughout our State. The expandeduse of forensic DNA by state and local lawenforcement officials across the Country has not onlyled to the apprehension and conviction of manyviolent offenders, it has exonerated the wronglyconvicted.
In order to enhance our law enforcement efforts toresolve open cases, I ask for your support of SenateBill 211. This legislation, which was introduced lastyear by Senator Norman Stone, will require thecollection of DNA samples from offenders chargedwith a crime of violence or burglary at the time oftheir arrest. This evolution in Maryland’s DNA lawis necessary if we hope to significantly decreaseviolent crime.
Our legislation is modeled after Virginia’s successfulDNA program, enabling Maryland to join 11 otherstates who currently collect DNA from violent crimesuspects at the time of arrest. It is important to notethat Virginia’s statute was recently upheld asconstitutional by Virginia’s Supreme Court inAnderson v. Commonwealth of Virginia, 650 S.E. 2d702 (2007). Their highest Court cited, adopted andexpanded the Maryland Court of Appeals holding inState v. Raines, 383 Md. 1,857 (2004), which stated,“The purpose of [the DNA profile] is akin to that of afingerprint. As such, appellee and other incarceratedindividuals have little, if any, expectation of privacyin their identity.” The Court went on to state that“(f)ingerprinting an arrested suspect has long beenconsidered a part of the routine booking process.Similarly, the taking of a DNA sample by minimallyintrusive means is ‘justified by the legitimate
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interest of the government in knowing for anabsolute certainty the identity of the person arrested,in knowing whether he is wanted elsewhere, and inensuring his identification in the event he fleesprosecution.” Anderson, 706. I am confident ourstatute is constitutional and when reviewed by ourcourts, it will survive scrutiny.
By expanding Maryland’s DNA Database, lawenforcement will be able to more efficiently resolveopen criminal investigations, pursue repeatoffenders, and save valuable time pursuing falseleads by effectively eliminating suspects fromongoing investigations. It is estimated that byadding the arrestees of violent crimes and burglariesto our current DNA database, we will addapproximately 31,000 samples to our database peryear. DNA is a powerful tool for state and local lawenforcement; the anticipated $2.6 million per annumrequired to improve our efforts will pay significantdividends in saved lives.
Criminal history records reveal that repeat offenderstypically have multiple violent felony arrests beforea conviction is secured. Virginia has learned thatapproximately 40 percent of its solved violent crimeswere perpetrated by those with previous propertycrime convictions.
In our State, the trends have been no different. Forexample, one need only look at the case of careercriminal, John Doe who has been arrested 16 timessince 1976. Under our proposed legislation, DNAcould have been collected at the time of 10 of hisarrests, some of which were sex offenses. Due toDNA, Baltimore County charged John Doe with a
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murder and a rape in 2000 and another rape in 2004- all crimes dating from 1986. It seems that JohnDoe may have left his DNA at the scenes of thesecrimes allegedly committed 20 years ago.
Unfortunately, since those heinous crimes werecommitted, the following opportunities to end JohnDoe’s violent crime spree were missed:
• John Doe was arrested for assault with intentto murder in 1986.
• John Doe was arrested for robbery.• John Doe was arrested for rape and robbery.• John Doe was arrested for a 1st degree sex
offense.• John Doe was arrested for robbery with a
deadly weapon.
Under the proposed legislation, law enforcementwould have been able to obtain a match using DNAsamples collected from John Doe, thus avoidingthese above mentioned missed opportunities. Werewe able to take a DNA fingerprint at the time ofthese five arrests, John Doe would have beencharged with murder and rape years earlier –avoiding at least one violent crime against aMaryland citizen.
We are making progress in the utilization of DNAtechnology. In the past year, Maryland’s DNAbacklog of 2,300 offender samples has been movedfrom dormancy on the shelves of our State’s crimelab into action in the Federal Bureau ofInvestigation’s Combined DNA Index System. Due tothe cleared backlog, access to offenders’ samples isavailable to federal, state, and local law enforcement
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officials. Through the creation of DNA Stat, ourdatabase is fully functioning as an effective crimeprevention tool. Crucial positions in the crime labthat for years have been vacant and unfunded havebeen filled; $800,000 has been spent to fund longterm equipment needs. A total of 4,682 new sampleshave been obtained from convicted offenders and97% of the Division of Corrections inmates who owedsamples were collected. As a result the number ofpositive DNA matches or hits increased by 51% in2007 from 2006, with a total of 287 hits.
This increase in hits has assisted local and statepolice in apprehending many violent criminals. InBaltimore County, 24 rape cases were clearedbecause of DNA leading to the arrest or charging of15 suspects. In Montgomery County, the DNA profileof a convicted offender matched a profile of a 1995rape, the identification of the perpetrator wasverified and an arrest warrant has been issued.Howard County, Prince George’s County andBaltimore City have also resolved open crimes as aresult of the enhanced DNA Database. Simply put,the minimally intrusive step of swabbing DNA at thetime of conviction saves lives; taking DNA at thetime of arrest, will save even more lives.
In conclusion, I respectfully request your support ofSenate Bill 2 11.
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SHEILA DIXONMayor
250 City HallBaltimore, Maryland 21202
March 11,2008
Senator Brian E. Frosh110 College AvenueAnnapolis, Maryland 21401-1991
Dear Senator Frosh:
We are making tremendous strides in the reductionof violent crime in Baltimore City and DNAcontinues to be an important tool to protect ourcitizens. When a violent offender is identified andtaken off our streets, we have prevented futurecrimes and victims. I have reviewed Senate Bill 211,and I believe that the sampling of DNA of personswho are charged with crimes of violence will be auseful too that will help improve public safety.
Commissioner Frederick H. Bealefeld III informs methat as a result of Maryland’s DNA backlogelimination, we have had more DNA CODIS hits oncold cases than ever before. Out of 287 total DNACODIS hits in 2007,124 have benefited
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investigations in Baltimore. Using DNA, police arequickly and accurately determining if individuals arelinked to any cold cases.
Senate Bill 211 targets repeat violent offenders likeAlphonso Hill, a serial rapist who attacked victimsin Baltimore for thirty (30) years. Hill has beencharged with over thirty (30) crimes, includingmurders, rapes, robberies, and burglaries. Had webeen able to take his DNA upon arrest for an assaultwith intent to rob in 1979, it would have beenmatched with evidence recovered from his first rapein 1978. Mr. Hill would have been convicted muchearlier in his criminal career and the victims he laterattacked would have been spared.
This bill limits DNA sampling to arrests for crimesof violence and the types of property crimes offenderslike Hill commit early in their criminal careers. Thisbill does not target those persons who are ReleasedWithout Charges (RWOC) in Baltimore. Of 3553RWOC cases from October 2007 through January2008, no arrestees would have qualified to give theirDNA under the proposed legislation.
Fingerprints are taken from every arrestee inBaltimore City. This bill requires DNA, thefingerprint of the 21st Century, to be taken uponarrest for violent crimes and property crimes thatare statistically shown to be precursors to violence.Victims will be spared, valuable investigativeresources will not be wasted pursing false suspects,and those who are wrongfully accused of seriouscrimes will be freed in a timely manner. In short,enacting this legislation will protect the rights oflaw-abiding citizens.
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Improved public safety for our constituents is a goalwe share and should work toward together. I urgeyou to support this legislation and continue to workwith me in pursuit of a safer Baltimore.
Sincerely,
[signature]
Sheila DixonMayorBaltimore City
SD:sg
Visit Our Website@ www.baltimorecity.gov
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THE PRINCE GEORGE’S COUNTYGOVERNMENT
LEGISLATIVE POSITION
Number: SB 211 - Public Safety - Statewide DNAData Base System Crimes of Violence,Burglary, and Breaking and Entering aMotor Vehicle - Sample Collections onArrest
Sponsor: The President (By Request-Administration), et al.
Issue: This bill will require the collection of aDNA sample from anyone convicted of afelony, breaking and entering a motorvehicle, and burglary in the 4th degree.Additionally, anyone arrested for acrime of violence or an attempt tocommit a crime of violence, burglary oran attempt to commit burglary, orbreaking and entering a motor vehiclewould be subject to the collection of aDNA sample at some time during thearrest or booking of the suspect. TheDNA profile will be entered and storedin the Maryland statewide DNA database system.
Position: Support
Solution: Technological advances have providedlaw enforcement agencies with the toolsneeded to more precisely analyzeevidence gathered at the scenes of the
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most serious crimes. Courts in all fiftystates have accepted the scientificvalidity of DNA profiling for manyyears, and many “cold cases” have beensolved using this technology. Havingthis data allows prosecutors and policeofficers to pursue and successfullyprosecute those responsible for thesecrimes.
There are currently 11 states that allowfor the collection of DNA samples fromarrestees in certain cases, includingAlaska, Arizona, North Dakota andTennessee, who enacted laws in 2007.SB 211 will allow the Maryland lawenforcement community to broaden theDNA database, aid in solving crime andincrease the safety of the citizens ofMaryland.
Prince George’s County supports thisbill.
Fiscal Impact: Undetermined
Committee: Judicial Proceedings
Hearing Date: 13-Feb-2008 at 1:00pm
Prepared by: Prince George’s County Office ofLegislative Affairs
47 State Circle, Suite 102 Annapolis, MD 21401Tel: (301) 261-1735 Fax: (301) 261-1784
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MARYLAND MUNICIPAL LEAGUE
The Association of Cities and Towns
T E S T I M O N Y
February 13, 2008
Committee: Judicial Proceedings
Bills: SB 211 (Public Safety StatewideDNA Data Base System — Crimes ofViolence, Burglary, and Breakingand Entering a Motor Vehicle —Sample Collections on Arrest)
Position: Support
Reason for Position:
The Maryland Municipal League supports SB 211,an Administration initiative to require DNAsamples to be taken from individuals arrested forcrimes of violence, burglary and motor vehiclebreaking and entering. The intent is to build a bankof DNA samples to be used just as fingerprints arecurrently used to identify and apprehend criminalsuspects.
The Maryland Municipal League and its 87 membercities and towns that provide police protection arepleased to endorse efforts to better utilize DNAidentification technology to help fight crime. Wetherefore ask that this committee provide SB 211with a favorable report.
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FOR MORE INFORMATION CONTACT:
Scott A. Hancock Executive DirectorCandace L. Donoho Director, Government RelationsJames P. Peck Director, Research &
DEPARTMENT OF POLICE50 N. Burhans BlvdNon-Emergency 301-739-3700Emergency 301-739-6000Fax 301-733-5513
January 30, 2008
Chairman Brian Frosh and Other Members of theSenate Judicial Proceedings CommitteeMiller Senate Office Building2 East Wing11 Bladen StreetAnnapolis, Maryland 21401
Re: SB 211 – Statewide DNA Data Base System
Honorable Committee Members:
I would like to express my strong support forGovernor O’Malley’s current initiative to strengthenMaryland’s DNA statute.
As is clear, the current law is insufficient and fails toinclude many of the individuals who are likely to beinvolved in the types of crimes in which DNAevidence is most often recovered. As a current police
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chief and a former member of Baltimore’s HomicideUnit, I am acutely aware of the evidentiary value ofDNA evidence. It provides a scientific basis forprosecution and as we have learned form experience,it is also likely to clear an innocent suspect againstwhom a strong case may otherwise exist.
In terms of being overly “intrusive” to the personfrom whom DNA is collected, I would submit forconsideration that a simple mouth swab is no moreintrusive than being fingerprinted and photographedat the time of arrest.
Other states, Virginia being a nearby example, havehad excellent results with their statutes.
I would finally submit that as legislators, it is yourresponsibility to impact positively on Maryland’sconsistently high ranking nationwide—5th
currently—for violent crimes on a per capita basis.This is a particularly disturbing statistic whenviewed in context with Maryland’s number oneranking in per-capita income. This presents aunique opportunity to make a difference in the livesof Marylanders.
Respectfully,
[signature]
A.R. SmithChief - HPD
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January 30, 2008
The Honorable Brian FroshSenatorChairman Senate Judicial Proceedings CommitteeMiller Senate Office Building, 2 East Wing11 Bladen Street, Annapolis, Maryland 21401
Dear Chairman Frosh:
I write in support of Senate Bill 211 — PublicSafety — Statewide DNA Data Base System —Crimes of Violence, Burglary, and Breaking andEntering a Motor Vehicle — Sample Collections onArrest.
As a member of the law enforcementcommunity for the past 29 years it is my belief thatsuch legislation is vital to public safety. Thecurrent system of DNA recordation has proven tobe a success in the closure of criminal cases. Thesenew requirements will provide a critical resourcetool for future criminal investigations, as mostcriminals are known recidivists.
My agency, as with numerous sheriffs’ officesacross the country, has the responsibility ofmaintaining the county detention centers andthereby receives those individuals charged withcommitting felony crimes. The collection of DNASamples during the phase of inmate booking istruly an appropriate environment. The collectionand recording of such DNA markers will ensurethorough analysis and inclusive comparisons ofsuspects within a specific criminal investigation.
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This Statewide DNA data base system thenprovides for an enhanced central repository toenable the identification of individuals accused ofcriminal activity.
It is my desire that this bill be given strongdeliberation by your committee and ultimatelyreturned to the full Senate for confirmation.
Your consideration of this legislation isgreatly appreciated and necessary for public safety.
Sincerely,
[signature]
David A. GoadSheriff
Allegany County, Maryland
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State’s Attorney forMontgomery County
50 Maryland AvenueRockville, Maryland 20850
March 7, 2008
The Honorable Brian E. Frosh2 East Wing Miller Senate Office BuildingAnnapolis, MD 21401
The Honorable Joseph F. Vallario101 Lowe House Office BuildingAnnapolis, MD 21401
Re: SB 211 HB 370 Public Safety —Statewide DNA Data Base System —Crimes of Violence, Burglary, andBreaking and Entering a Motor VehicleSample Collections on Arrest
Dear Chairman Frosh and Chairman Vallario:
We are writing to strongly urge passage of SB211 and HB 370. These important pieces of life savinglegislation will serve to expand Maryland’s DNAdatabase system giving local law enforcement a criticaltool to aid them in criminal investigations. These billsrequire the collection of DNA samples from personsarrested for Crimes of Violence as defined in Section 14-101(a) of the Maryland Criminal Law Article, as well asfor burglaries and breaking and entering of motorvehicles. A total of 11 states, including Virginia,California, Texas and New Mexico have enacted similarlegislation and an additional 26 others are considering
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it. SB 211 / HB 370 will allow law enforcement tocompare newly collected DNA to existing cases andolder cold cases as well as those that occur in the future.The legislation will serve not only to protect the publicagainst repeat violent offenders, but will also serve toexonerate individuals detained for offenses they did notcommit.
With respect to issues of privacy and civilliberties, the procedure for collecting DNA under SB211 / H8 370 will be no more intrusive than the takingof fingerprints. Collection will be done by swabbing theinside of the person’s mouth at the time of arrest.Moreover, the scope is limited to arrests for specificviolent crimes specified by statute and the propertycrimes indicated above. Specified property crimes havebeen included, based upon research in Virginiaindicating that roughly 40% of violent offenders hadprevious property crimes convictions. In addition, theDNA samples for these investigative purposes will nottest for nor reveal genetic health information.Furthermore, in the event the arrestee is acquitted or ifthe charges are dropped, his DNA profile can beexpunged from police records.
The Maryland Court of Appeals in State v.Reines, 383 Md. 1 (2003), has previously addressedthe issue of collecting DNA upon conviction. TheCourt found collection permissible, indicating thatit is in the public’s best interest for offenders likelyto re-offend to have a lessened expectation ofprivacy. Moreover, in citing Jones v. Murray, a 1992case from the Fourth Federal Circuit, the RainesCourt noted, when a suspect is arrested, “hisidentification becomes a matter of legitimate stateinterest and he can hardly claim privacy in it. We
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accept this proposition because the identification ofsuspects is relevant not only to solving the crime forwhich the suspect is arrested, but also formaintaining a permanent record to solve other pastand future crimes.”
We believe that passage of these bills willenable law enforcement to solve crimes more quicklyby using science to identify offenders earlier in theinvestigation, to prevent crime by linking repeatviolent offenders to existing and older cases andkeeping them behind bars, to free the innocent andto be used as an investigative tool that is blind toracial bias.
Thank you for your consideration of ourposition.
Sincerely,
[signature]
John J. McCarthyState’s AttorneyMontgomery County, Maryland
[signature]
Ike LeggettCounty ExecutiveMontgomery County, Maryland
cc: Governor Martin O’MalleySenate Judicial Proceedings CommitteeHouse Judiciary Committee
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MARYLAND STATE LODGEFRATERNAL ORDER OF POLICE
1506 LESLIE ROAD, BALTIMORE, MD 21222
February 27, 2008Senator Brian FroshChairman, Judicial Proceedings CommitteeMiller Senate Office Building, Ste 2EAnnapolis, Maryland 21401-1991
RE: SB 211 – “Public Safety - StatewideDNA Data Base System Crimes of Violence,Burglary, and Breaking and EnteringA Motor Vehicle - Sample Collections onArrest
Dear Senator Frosh & Members of the Committee:
The Maryland Slate Fraternal Order of Policehereby strongly supports SB 211. This bill requiresthe collection of a DNA sample from an individualcharged with crimes of violence, burglary, or B&E ofa motor vehicle upon arrest at the facility where thearrest is processed. Sample of a DNA must also beexpunged from statewide system if request isgranted.
This bill certainly makes it easier for lawenforcement officers to do their job. Quite often, weare hindered by not having access to good DNA
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evidence and therefore, making it difficult to solve acrime and put the bad guys in jail. This billeffectively addresses that issue.
We urge a favorable report on this legislation.Thank you.
Respectfully,
[signature]
John “Rodney” Bartlett, Jr.President
Representing the Professional Police Officers of theState of Maryland
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Statement of Colonel Terrence Sheridan
HOUSE BILL 370/SENATE BILL 211
Public Safety – Statewide DNA DatabaseSystem – Crimes of Violence, Burglary, andBreaking and Entering a Motor Vehicle –
Sample Collections on Arrest
Senate Judicial Proceedings Committee
February 13, 2008
Good afternoon, Mr. Chairman and membersof the Committee. I am Colonel TerrenceSheridan, Superintendent of the MarylandState Police. I am here today with thisesteemed panel to ask for favorableconsideration of House Bill 370/Senate Bill211;
House Bill 370/Senate Bill 211 represents akey component required to assist our state inmoving forward toward adopting responsiblepublic safety policy;
This legislation requires the collection andsubsequent entry of the DNA sample of aperson who has been arrested for a crime ofviolence, burglary, and one misdemeanor (6-206) into Maryland’s DNA database;
By expanding our DNA database to includearrestee samples we simultaneously increasethe likelihood of:
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1. Solving future crimes
Chicago’s Study on Preventable Crimes
Study completed in 2005 by theCity of Chicago and presented tothe Illinois Legislature insupport of similar legislation
The study examined the criminalhistory of 8 violent offenders
It found that the 8 offenders inChicago accumulated 21 felonyarrests before finally beingidentified in violent crimes
The study identified that inaggregate, the offenderscommitted 22 murders, 30 rapesand a number of attempted rapesand kidnappings which wouldhave been prevented had theoffender’s DNA samples beencollected in their previouslyundetected violent crimes
2. Solving old or cold cases
The cold hits resulting from the matching in CODISidentifies approximately one offender for every 1,000samples contained in CODIS. Christopher H. Asplen,From Crime Scene to Courtroom: Integrating DNATechnology into the Criminal Justice System, 83Judicature 144, 147 (1999).
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3. Exonerating suspects and thosewrongly accused/convicted
4. Providing law enforcement withevidence more reliable than eyewitnesstestimony thereby decreasing thecurrent dependence on eyewitnesstestimony
An article written in the Missouri Bar, September-October 2003 edition reported that the Departmentof Justice reviewed 28 cases of people wronglyconvicted of sexual assault and later exonerated byDNA evidence. With the exception of six homicidesincluded in the study, each case involved significantreliance on eyewitness testimony by the victim.Edward Connors et al., U.S. Department of Justice,Convicted by Juries, Exonerated by Science: CaseStudies in the Use of DNA Evidence to EstablishInnocence After Trial,
5. Preventing future crimes from everoccurring. Offenders and arrestees areunlikely to commit crimes knowingthat a simple search of a DNA databasecould conclusively identify them as anoffender.
Mark Schoofs, Genetic Justice, Village Voice,November 18, 1997, at 44 (quoting Carlos Rebren,the director of Alabama’s forensic sciencedepartment, who said that maintaining anindividual’s DNA profile might “discourage [him]from criminal misconduct”).
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The demonstrated success realized by other statesthat have expanded their DNA databases to includearrestee samples cannot be ignored. Virginia is oneof those successful states and is the state we havechosen to follow with regard to our legislativeproposals;
According to FBI CODIS Statistics, as ofOctober, 2007 Virginia’s State DNA databasehas:
VIRGINIA
Offender Profiles 260,403
Forensic Samples 8,063
InvestigationsAided
4,282
Virginia’s DNA began its offender database in1989
It began to enter felonious arrestee samples in2003
Virginia got its first hit on the arresteedatabase when uploading the first 80 samples
Since 2003, Virginia has received 3,417 hits
The database has increased by 66,081 samplessince 2003
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Approximately 80% of hits would have beenmissed if the Databank was limited to onlyviolent offenders.
Approximately 40% of violent crimes solvedwere perpetrated by individuals with previousproperty crime convictions.
We know by reading the statistical success of otherstates that the larger the DNA database, the greaterthe number of hits or the greater the number ofinvestigations will be aided by competent evidence.CODIS reports that as of October, 2007 Marylandhas:
MARYLAND
Offender Profiles 46,812
Forensic Samples 4,137
Investigations Aided 868
Maryland began its offender database in 1994with the collection of offenders of rape and sexoffenses (1st, 2nd and 3rd degrees).
In 1999 the data base was expanded to includeconvicted offenders of qualifying violentcrimes. In 2002 the database was expanded toinclude all felonies and the two misdemeanors;6-205 and 6-206.
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In 2002 we introduced the “all felon”requirement and the Crime Lab quicklybecame overwhelmed and realized asignificant backlog.
That backlog was just eliminated in 2007 withthe completion of 24,300 samples processedwhich required the filling of all the vacancieswithin the Biology Section as well as theaddition of 2 new positions granted by theGovernor.
Uploading the convicted offender profiles ofthe back logged samples resulted in anincrease of the State’s offender profiledatabase by 88%. Subsequently, total hitswere increased by 51% over 2006.
Crime Lab learned a valuable lesson from thebacklogs of 1999-2007 and supports thegradual progression of expanding a statewideDNA database.
We recognize and agree with the State ofVirginia’s position that “DNA Databanks aremost effective with inclusion of at least allfelons and applied to all forms of cases” yet weare committed to developing a statewide DNADatabase that is efficient, manageable, andreliable.
Conclusion
The supporters of the American criminal justicesystem have long agreed that we would rather allow100 guilty men go free than deprive one innocentman of his freedom. That being said, it is my opinion
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that it is this body’s moral obligation to allow for theexpansion of a technology which has proven itselfcapable of providing the criminal justice system withconclusive evidence of guilt and more importantly, ofinnocence.
Anticipated Questions
Why include property crimes such as misdemeanorburglary
Approximately 80% of hits would have beenmissed if the Databank was limited to onlyviolent offenders.
Approximately 40% of violent crimes solvedwere perpetrated by individuals with previousproperty crime convictions.
Why not all felon arrestee
There are approximately 800 Criminal JusticeInformation System felony charges. In 2006,there were approximately 80,000 filings inMaryland Circuit Courts.
In 2006, Maryland Uniform Crime Reportsindicate there were 233,590 index offensesinvestigated by law enforcement.
The associated cost would be staggering.$38.00 per sample tested x 200,000 = 7,600,000 plus additional personnel, plusadditional equipment etc…
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Taking either of these numbers into accountthe caseloads of samples would beunmanageable and re-create a backlog.
What about those released without charges (RWOC)and/or expungement related issues:
Crime Lab personnel currently have daily anddirect access to CJIS. This access allows themto confirm the charge which has beenpreferred against the person for whom asample has been received and simultaneouslyensure the charge is a qualifying charge asenumerated within the legislation.
Released without charges (RWOC)
This circumstance predominately occurs inBaltimore City. If this legislation becomes law,DPSCS, Expungement Unit, will add theMaryland State Police Crime Lab to thoseentities who currently received a daily list ofnames of persons who were processed throughtheir facilities wherein the person wasreleased without charge(s) (RWOC).
