Rep. Swalwell Urges FBI to Improve DNA Testing for Law Enforcement

WASHINGTON, DC – U.S. Representative Eric Swalwell (CA-15) sent a letter to FBI Director James Comey urging that the FBI take steps to improve DNA testing for law enforcement. The letter asks the bureau to consider Rapid DNA analysis, and to better use private labs to reduce the severe DNA backlog. The letter was co-led by Reps. Mike Honda (CA-17) and Barbara Lee (CA-13).

"As a prosecutor in Alameda County, I saw firsthand that the tremendous DNA backlog not only leaves crimes unsolved and the public unprotected, but it also re-victimizes victims who deserve justice," said Rep. Eric Swalwell. "DNA is a powerful tool in law enforcement that isn't being used most effectively because samples are not tested in a timely fashion. I encourage the FBI to work with local law enforcement to explore all options - including Rapid DNA testing and the use of private-sector labs - so perpetrators can be identified or cleared immediately, and justice can be brought to victims."

Rapid DNA analysis allows for DNA testing and profile analysis in a matter of minutes. The letter urges the FBI to advance the use of this technology through pilot projects, first by testing arrestee samples at booking stations.

There is also a tremendous backlog in DNA evidence testing, including for rape kits. The National Institute of Justice reported that in 2011 there were over 100,000 cases involving backlogged DNA evidence. One way to increase testing capacity is by using private laboratories, but this is currently blocked due to certain administrative hurdles. For example, private sector laboratories cannot upload DNA information to the national CODIS database and must send its results to a public sector laboratory for inclusion.

The letter urges the FBI to better utilize private laboratories and suggests piloting programs to do so in locations like Alameda County. Alameda County District Attorney Nancy O'Malley is leading an effort to reduce the rape kit backlog.

"DNA is a tremendous forensic tool proven to help solve crimes," said Alameda County DA Nancy O'Malley. "Victims of sexual assault undergo a lengthy and intrusive forensic evidence collection examination which includes completion of an exam kit, commonly referred to as a ‘rape kit.' However, too many rape kits sit in police evidence rooms, untested. Too many rape kits sit in crime labs, untested. Too many serial rapists go undetected, only to commit more sexual assault crimes against other victims. It is time we make a change! It is time all rape kits are tested for a foreign DNA profile to be uploaded into the FBI's database. It is time we convict sex offenders for their crimes and bring justice to the victims of those crimes. Thank you to Congressman Swalwell and those national leaders who will help us make the changes for justice."

"I am committed to seeking justice for victims of sexual assault. I continue to do everything in my power to provide resources for law enforcement agencies to obtain evidence needed to find, try, and convict assailants," said Rep. Mike Honda. "However, I am gravely concerned about the number of rape kits that have gone untested throughout this country. The DNA results obtained in those kits can help convict dangerous criminals and exonerate innocent people. I am proud to partner with Rep. Swalwell and Rep. Lee to urge the FBI to allow private labs to assist in the processing of the backlog of rape kits so that they do not languish for years in evidence lockers. I applaud DA O'Malley for her tireless effort to reduce the rape-kit backlog. No survivor should have to wait over a year to obtain the DNA results from his or her rape kit."

The text of the letter is below:

Dear Director Comey:

We urge you to increase the speed with which DNA evidence is tested and profiles uploaded into the COmbined DNA Index System (CODIS). In particular, we ask you to develop pilot programs to test the use of Rapid DNA analysis at police booking stations and assess its viability for broad deployment. We also ask you to address impediments to the use of private sector laboratories in DNA testing and establish pilot programs to test any proposed new procedures.

As you know, DNA is a powerful tool in law enforcement. It allows us to achieve justice for victims by punishing those responsible for criminal activity with near certainty. And, it allows us to free innocent people who have been convicted wrongfully. However, for DNA to be utilized most effectively, samples must be tested and profiles uploaded into the national collection of DNA profiles, CODIS.

Unfortunately, there is a tremendous backlog of untested DNA evidence. For example, the National Institute of Justice reported in December 2013 that, in public laboratories surveyed in 2011, there were over 100,000 cases involving backlogged DNA evidence. In 2005 the number was less than 50,000. This does not even include other aspects of the DNA backlog, such as DNA evidence held by law enforcement and not sent to a laboratory to be tested as well as untested samples from arrestees and convicted offenders.

With respect to solving part of the problem, improving public crime laboratory capacity, the federal government provided state and local governments $442 million between fiscal year 2008 and 2012, according to a July 2013 Government Accountability Office (GAO) report. However, according to the GAO, "The demand for DNA testing continues to exceed the capacity of laboratories to process these samples."

While we strongly support continuing as much federal assistance as possible in reducing the DNA backlog, our current efforts have been insufficient in the face of increasing demand due to the value of this science in solving crimes. Therefore, we need to explore additional solutions. One option is to better utilize new technology that allows testing samples from arrestees at the time of booking.

Existing processes require law enforcement to collect DNA samples from arrestees, transport these samples to a laboratory, have them analyzed, and then wait for results. This entire course can take weeks, during which time arrestees are free to potentially commit criminal acts or disappear.

Technology, known as Rapid DNA analysis, exists which has the potential to allow law enforcement to quickly compare an arrestee's DNA profile against CODIS right in the booking station. This would free up laboratory capacity, allowing other testing to proceed more quickly, and help identify perpetrators immediately. The FBI recognized the power of Rapid DNA analysis and the importance of furthering its use in 2010, when it established the Rapid DNA Program Office.

It is time to take the next step and assess the validity and efficacy of Rapid DNA analysis for possible widespread use in law enforcement booking stations. This could be done through initial pilot programs, and we respectfully request the FBI adopt pilot projects to do so in a timely manner.

A second way to reduce the DNA testing backlog is to address obstacles in the utilization of private sector laboratories. Currently a private sector laboratory cannot upload DNA information to CODIS and must send its results to a public sector laboratory for inclusion. Upon taking ownership of the data, the public sector laboratory does a technical review to go over the private sector laboratory's work. This is in addition to the technical review that a private sector laboratory does before it sends the information in the first place.

Having an additional technical review of data submitted from a private sector laboratory means additional time and resources. This may not be necessary. It is our understanding that in 2010 the FBI began a review of issues relating to the technical review requirement, prompted by similar concerns about its contributing to the DNA backlog by CODIS stakeholders, Members of Congress, and other elected officials. Unfortunately, the FBI did not solve the problem in its latest Quality Assurance Standards for DNA Databasing Laboratories, which provides rules for laboratories doing DNA testing and were effective as of September 1, 2011.

We ask the FBI review this issue again and adjust its policies and requirements to allow for the better use of private sector laboratories in DNA testing and analysis. This could include developing a system whereby a public sector laboratory does not review work on DNA done and confirmed once already by a private sector laboratory, developing a method for the latter to directly, or working with a government partner, include DNA profiles in CODIS, or, at the very least, suggesting the use of best practices or encouraging public laboratories to make the review of private laboratory DNA work a top priority so as to stop their reexamination from delaying DNA backlog reduction.

FBI concerns about any of these changes could be addressed by working with law enforcement agencies to first test them by conducting pilot programs. The Alameda County District Attorney's Office in California would welcome such an opportunity, and it is confident it could demonstrate how successful an expanded use of private laboratories could be in reducing the DNA backlog.

Thank you for your time and consideration. Please respond to the separate issues of Rapid DNA analysis and better utilizing private sector laboratories either in the same or in separate communications, so as to enable the timeliest response(s) possible.

Sincerely,