Vol. 37, Number 2 —February 2005

Need for DNA Testing Taxes Courts

The Justice for All Act, P.L. 108-405, passed in October 2004, substantially expanded the list of offenses under which a convicted felon’s DNA must be collected and entered into a national database where it can be matched against DNA crime evidence. While the database helps solve crimes, the number of DNA samples that now must be collected has left many federal probation offices struggling.

Previously, under the DNA Analysis Backlog Elimination Act of 2000, which was amended by the USA Patriot Act, approximately 250 federal offenses qualified an offender for DNA collection. It was estimated that about 6,000 of the more than 100,000 offenders in the federal probation system had committed crimes that required DNA collection. The Justice for All Act simplified that, expanding qualifying offenses to include any felony, and specified sexual abuse
offenses, any crime of violence, and any attempt or conspiracy to commit any of these offenses. Most of the 112,883 offenders currently under post-conviction supervision in the federal probation system have committed a felony.

John Fitzgerald, who heads the DNA testing program within the Administrative Office, estimates that in this fiscal year, blood samples from 70,000 to 80,000 offenders will need to be collected by U.S. probation offices, and the DNA samples entered into the FBI’s electronic Combined DNA Index System (CODIS) database before the offenders are released from supervision. Eventually, all remaining offenders will be tested.

The Bureau of Prisons had been collecting samples only from offenders identified under the old statute, but with the posting at the end of January of new federal regulations, they will start testing all incoming prisoners. So while at some future point the need for probation offices to collect blood samples will decrease, it will not end, because a number of unincarcerated offenders will still need to be tested.

In the meantime, the sheer volume of needed tests has probation officers scrambling to find contractors­—either laboratories or medical personnel—willing to collect the high volume of blood samples. And time is at a premium, since offenders must be tested before they leave supervision.

“Before the Justice for All Act,” said George Doerrbecker, who is in charge of the DNA testing program in the U.S. Probation Office of the Eastern District of New York, “collecting blood samples was pretty manageable. But it’s chaos after the Act. To give you a snapshot, nearly 6,000 offenders, all felons, pass through our office in a year. We’re talking about a lot of blood samples. And we can’t get the number of testing kits we need.”

Doerrbecker is referring to test kits that include the blood sample vials and required paperwork for offender information. The FBI does the actual DNA testing, and supplies the kits. Facing the sudden high demand, they’ve asked courts not to request more than 200 kits at a time.

In the Southern District of Florida, Chief Probation Officer Frank Schwartz has 5,000 offenders currently under supervision; he estimates that 4,500 of them will need to be tested.

“We started by identifying who needed to be tested,” Schwartz said, “and asked for kits from the FBI. They said we’re getting 200. That’s OK, because we knew we couldn’t do all the 4,500 right away. So we identify who needs testing by their supervision termination date. Working backwards from that date, every 90 days, we do as many as we can, as fast as we can, and as fast as we can get kits for them.”

Costs for collecting blood samples for DNA tests can vary dramatically, from $20 to $50 per hour, during which only 10-12 offenders can be tested. The Judiciary was not provided funding by Congress for the tests, and probation offices working within already tight budgets are looking for the most cost-effective testing procedure. Schwartz notes that a finger prick, rather than a drawn vial of blood, may be possible later this year, considerably changing how offices conduct collections, and saving money.

“The testing is affecting our budget, although we’re covering it right now,” Schwartz said, but warned, “If it begins to affect law enforcement accounts, we’ll need to request supplemental funds.”

Doerrbecker says that in the Eastern District of New York it is cost-effective to hire a phlebotomist for 20 hours a week. “We do what we can, but we still need a supply of kits,” he said. “People terminate probation every day. No kits. No testing.”

The FBI is responsible for supplying kits to over 500 collection sites. The AO has learned that, in an effort to address the projected impact of the recent Justice for All legislation more effectively, the FBI has acquired the funding necessary for restructuring the current collection kits. To make future sample collections more efficient and less intrusive, a finger prick collection kit is being developed.