State Crime Legislation in 2001

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The power of DNA technology to convict or exonerate defendants dominated state crime legislation in 2001. Fifteen states passed laws allowing motions for post-conviction DNA testing, and many states also addressed preservation of criminal evidence to facilitate such actions. Numbers of convicted offender DNA samples in state data bases will grow substantially as a result of 2001 legislation, with many states adding new crimes for which offenders must provide a sample. Six states-Colorado, Michigan, Montana, Oklahoma, Oregon and Texas-expanded to all felons the requirement to provide a genetic sample. Other DNA-related measures extend, toll or eliminate statutes of limitations in certain crimes and circumstances.

State crime legislation in 2001 also prominently included measures to address community supervision of offenders, sending fewer non-violent offenders to prison or providing options to mandatory minimum terms. Integrating criminal justice and drug treatment through drug courts and other diversion policies was an important trend last year. Meanwhile, state legislatures also strengthened laws on methamphetamine and "club drugs" like Ecstasy, showing that drug control-and, in particular, drug-endangered children-remain a concern.

Following the September 11 terrorist attacks on the nation, much attention in legislatures turned to how state policy can reduce vulnerability and help respond to acts of terrorism. Legislation passed in New York included provisions to add as a capital crime murder committed in furtherance of a terrorist act. In special session, Florida lawmakers added acts of terrorism or in furtherance of terrorism to felony murder law, which could be a capital offense, and enhanced to the next higher degree felony other crimes that facilitate terrorism. The act includes allowing a statewide grand jury to investigate and return indictments for violations of any of these new terrorism offenses, and for forfeiture of assets related to any of these crimes. Michigan enacted a law that provides penalties for hoaxes involving biological or chemical substances or devices. Other legislation was pending, or pending a governor's signature at year-end, and many related measures were being prepared for 2002 legislative sessions.

Data Bases Expand

State legislation in 2001 requires significant expansion of state DNA databases that house samples from convicted offenders and can be compared to physical evidence in unsolved crimes. Six states expanded testing to all felons, bringing to 14 the number of states with that requirement (see figure 1). Under Oklahoma's measure, crimes will be added incrementally during the next few years, to include all felonies by 2006. Florida, similarly, will add crimes in 2002, 2003 and by 2004 will include all forcible felonies. The Florida act also makes the DNA sample requirements retroactive to offenders currently incarcerated for a qualifying crime and requires the sample be collected not less than 45 days before release. Oregon and Texas actions prioritized collection of samples, requiring they first be obtained from serious, violent and sex offenders. Nevada law requires collection of a sample when an offender is committed to the custody of the department and also expands requirements to provide a sample to those convicted of all category A, B and some C felony crimes. Qualifying probationers and parolees must pay a $150 fee for the state to obtain and analyze the biological specimen. Indiana also added people on probation or parole for qualifying crimes to those who must provide a sample. Texas law now provides that both adults and juveniles who are required to register as sex offenders provide a DNA sample as a condition of community supervision; and added a $250 court cost on offenses requiring DNA sampling, to provide for reimbursement to law enforcement for related duties.

Source: NCSL, 2001.

A tied package of measures in Michigan update and expand the state's DNA database. All those convicted of a felony or specified misdemeanors or juveniles responsible for certain violations now must provide a DNA sample and pay a $60 assessment for doing so. Funds are to be dispersed to local law enforcement agencies that collect samples and to the State Police Forensic Science Division to defray DNA analysis and storage costs. The state police will report to the Legislature on the pace at which samples are being collected and analyzed and status of fund assessments.

In Texas, a law provides for post-indictment DNA samples of those charged with certain sexual assault and kidnapping crimes. Such records must be kept separately from other offender DNA records and are to be destroyed upon dismissal of charges or acquittal. Louisiana is the only other state with legislation that allows sampling of those not yet convicted. A 1997 act that affects arrestees for certain sex crime still is being implemented.

 

More States Provide for Post-Conviction DNA Tests

New laws in 15 states provide a window for offenders with claims of innocence to petition for post-conviction DNA testing. States that passed such measures in 2001 were Florida, Idaho, Indiana, Louisiana, Maine, Maryland, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, Oregon, Texas, Utah and Virginia. Twenty-six states now have such provisions. Two states-Tennessee and Washington-that were among the first to pass post-conviction laws enacted new measures in 2001 to expand the laws' application from death-sentenced felons to any sentenced or incarcerated felon (see figure 2). Laws in Florida, Illinois, Michigan, Nebraska, North Carolina, Oklahoma, Texas and Virginia address preservation of evidence in cases that result in a conviction, often requiring storage until that offender completes and is released from a criminal sentence. Nebraska's measure also provides that laboratories that collect, analyze or store DNA samples meet industry accreditation standards. In Oklahoma, amid allegations of improper evidentiary DNA analysis and testimony, a new measure sets procedure and requirements regarding DNA evidence. New Jersey and Utah included in post-conviction DNA laws that the sample of an offender who petitions for testing be entered into the state's DNA data bank. Utah's measure adds that the defendant waives any felony statute of limitations in a case brought as a result of a match.

DNA technology continues to significantly affect how charges are brought and offenders are prosecuted. Measures passed in Indiana, Kansas, Oregon and Texas extend or toll the statute of limitations on certain sex crimes when the identity of a suspect is established by DNA testing. A 2001 act in Colorado extended the limitations to any offense, and a New Jersey law removes the time limitation on prosecuting a number of serious crimes when physical evidence identifies someone by DNA testing or fingerprint analysis. Acts in Idaho and Louisiana removed the statute of limitations for forcible rape, and Arkansas legislation extends the statute of limitations for rape an additional 15 years if DNA evidence becomes available. Arizona eliminated the statute of limitations for sex crimes against minors. The growing importance of DNA technology in crime and justice was reflected in a California act that creates a partnership between the California Department of Justice and the University of California, to provide DNA training to students, graduates and current employees of crime laboratories.

Source: NCSL, 2001.

Laws Revise Mandatory Sentences, Encourage Treatment

Sentencing reforms in a number of states in 2001 represent a significant shift in policy with regard to non-prison options for certain drug offenders and other non-violent offenders. An Indiana enactment allows a person charged with delivering a controlled substance to be eligible for treatment in lieu of prosecution, and courts are allowed to directly place those convicted of felony controlled substances offenses in community corrections programs. The mandatory minimum 20-year sentence for dealing in controlled substances is amended to include only those who possess a firearm or deliver drugs to minors.

Legislation passed in Connecticut allows the court to deviate from mandatory minimum sentences for certain drug crimes when the defendant did not threaten physical injury or possess a firearm. An enactment in Arkansas similarly encourages courts to screen felony drug possession defendants as candidates for diversion and drug treatment. Another act adds residential burglary and several unclassified, non-violent felonies to those eligible for community punishments. Yet another allows community punishments for many parole violators who have not committed a new felony offense. Montana and North Dakota laws also make first-time drug possession defendants eligible for diversion in lieu of the mandatory five-year term.

Louisiana lawmakers amended the state's habitual offender law to eliminate mandatory life imprisonment for some crimes, including certain controlled substance distribution crimes punishable by terms of less than 10 or 12 years. The legislation also removed mandatory imprisonment for certain non-violent crimes, including illegal possession of stolen firearms, prostitution, improper supervision of a minor, obscenity and perjury. A new Mississippi law allows non-violent first offenders to be considered for parole, but excludes those convicted of sale or manufacture of a controlled substance.

Integration of drug treatment and criminal justice systems was a theme in other state legislation in 2001. In Oregon, legislation provides for probation services for those convicted of possession of a controlled substance or a property offense motivated by drug dependence. The action also directs local public safety councils to develop drug treatment plans that integrate with the criminal justice system. A Drug Prevention and Education Fund was created that is to be funded by civil forfeitures and that will assist counties to provide drug treatment services. Texas legislation makes eligible for drug court offenders for which an element of the offense is use, possession or sale of a controlled substance but that does not involve weapons, force, death or serious injury. The act requires counties of more than 550,000 people-and authorizes other counties-to establish drug court programs to integrate alcohol and drug treatment services in judicial case processing. Counties required to establish drug courts are to apply for federal funds.

A New Mexico measure authorizes early release of female inmates to a re-entry drug court program supervised by a district court. Another enactment in New Mexico directs the Department of Health to develop and implement regionally coordinated intervention services for addicts who seek treatment and to meet the treatment needs of those who come out of the justice system or who are referred to treatment as an alternative to criminal penalties. The act includes health department collaboration with the corrections department for substance abuse treatment for probationers and parolees, including reintegration services. Legislation in Maine allows courts to impose alcohol and drug treatment programs as a condition of release for up to 12 months following release.

An act in Florida requires each judicial district to establish a model treatment-based drug court that integrates assessment and treatment planning with justice system case processing. Another measure passed there creates a mandatory, post-prison release program for substance abusers. The Department of Corrections is to enter into contracts with community service providers, including faith-based service groups, to operate substance abuse transition housing programs.

An Idaho enactment provides an appropriation for community-based substance abuse treatment for probationers and parolees and for services that support the drug court program. New Jersey expanded drug courts with appropriations to provide for six superior court judgeships and in-patient and out-patient substance abuse treatment for adult and juvenile offenders. Wyoming also passed legislation that enables localities to establish drug courts and provides state funds for those that incorporate continuum of treatment services integrated with judicial case processing.

Illinois' Drug Court Treatment Act authorizes each judicial district to establish a drug court program that includes assessment and treatment. The legislation requires a regimen of graduated requirements and rewards that may include fines, fees, restitution, incarceration, drug therapy and testing.

Some of the same states that eased certain drug sentences also imposed new penalties related to methamphetamine and other substances. In Indiana, the same act that reduced some drug sentences also created felony penalties for possession of certain methamphetamine precursor substances and created a rebuttable presumption that a child's physical or mental health is endangered when controlled substances are being manufactured on the property where a child resides. Montana paired its drug sentencing reforms with a measure that creates the offense of operating a lab to produce illegal drugs and set a penalty of up to 25 years and a fine of up to $50,000. North Dakota lowered amounts of heroin and cocaine for which aggravated penalties apply and added methamphetamine, Ecstasy substances and marijuana to the list of drugs for which aggravated penalties apply. Oregon legislation prohibits probation for those convicted of manufacturing substantial quantities of methamphetamine. Other states that strengthened laws relating to meth or "club drugs" included Georgia, Iowa, Maryland, Missouri, Ohio, Oklahoma, Vermont, Virginia and Wyoming. In California, the Drug Endangered Child Protection Act provides assistance to counties for multi-agency response teams to respond promptly when law enforcement personnel identify such children. Federal Byrne funds will help support those efforts as part of the state's war on methamphetamine.

Community Supervision and Re-entry Policies

Again in 2001, enactments were plentiful to closely monitor and restrict sex offenders and to empower law enforcement agencies and the public by providing information about who and where these offenders are. In Louisiana, a convicted sexual predator may not be near or reside near school property, and similar actions in Montana and Oregon restrict sex offenders from residing near places where children are the primary occupants or users. A Nevada measure allows, as a condition of probation for sex offenders, that he or she not possess sexually explicit material or patronize such a business and that he or she may be restricted from possessing equipment with Internet access. Oregon lawmakers set specific post-prison supervision requirements for sex offenders, including prohibiting contact with minors, prohibiting possession of sexually explicit materials, requiring completion of a sex offender treatment program, requiring random polygraph examinations, and maintaining a driving log.

More state legislation last year prompts posting of state sex offender registries to the Internet. Actions in Idaho, Montana, New Jersey, North Dakota, Oregon and Virginia contain such provisions. A new Texas law uses drivers' license photos as part of the state's central database and adds those photos to the registry Web site. A Colorado act requires a link on the Colorado home page to the sex offender registry. New Jersey's measure took steps to address uses of the information in a public sex offender registry, prohibiting that it be used to deny insurance, loans or credit, education, scholarships, housing or accommodations. It also created an Internet Registry Advisory Council to consult with and make recommendations to the Legislature, governor and attorney general with regard to the Internet registry.

Many other states revised-often expanded-sex offender registration requirements or procedures. In California, sex offenders who are required to register must update their fingerprint, photograph and current vehicle license plate information when they update their address. Louisiana addressed ongoing costs of maintaining a sex offender registry with an enactment that requires probation fees, after other provisions of law are met, go to a "sex offender registry technology fund" for state police in carrying out registration law.

Fifteen states last year enacted the Interstate Compact on Adult Supervision. The compact provides for tracking and supervision of offenders by sending and receiving states, facilitated information exchange, and an interstate commission that will establish uniform procedures for managing this population. To date, 25 states have joined the compact.

In Alaska, an enactment created a "village public safety officers' program" to strengthen probation and parole supervision in rural areas by fusing those responsibilities with that of local law enforcement agencies. In line with the re-entry substance abuse programming, Florida lawmakers approved legislation to add assisting released inmates in their transition to the community to responsibilities of the Department of Corrections. The act includes expanding community corrections programs, restitution centers and job placement assistance, including private contracts for such programs. A new measure in Nevada allows judicial districts to establish services for parolees and other offenders who are re-entering the community. The act sets procedures for referral to a re-entry court and criteria for participation. Services that may be provided by public or private entities include transitional housing, treatment services, and life skills and vocational training.

Crime Information Exchange, Integration

Five states last year adopted the National Crime Prevention and Privacy Compact, bringing the total to 14. The compact establishes formal procedures and governance structures for use and sharing of criminal information for non-criminal justice purposes. In Oregon, legislation requires the Department of State Police to develop a plan for the integration of justice information among agencies. Other enactments more specifically define how electronic justice information can and should be used. Including and sharing protective order information within the criminal justice system were addressed in California and Texas. Other states restricted use of certain information. Under a new measure in Idaho, disclosure of certain records that identify victims is prohibited. Expungement policy was addressed in measures in Texas and Washington.

Legislation last year requires law enforcement personnel in Colorado, Maryland and Texas to record information about every traffic stop as a means to address "racial profiling." Policies prohibiting racial profiling must be adopted in Kentucky, Maryland, Minnesota and Texas, and officer diversity training is mandated under new laws in Colorado and Florida. Texas' law also requires law enforcement agencies to examine the possibility of installing video cameras in patrol cars and directs the Department of Public Safety to adopt rules for providing funds for this purpose. Oklahoma lawmakers took an even broader look at racial issues in crime and justice by creating the Racial and Social Economic Statistical Analysis on Imprisonment Task Force to study the proportion of each race incarcerated in the state to compare results to other states.

The death penalty continues to be reviewed in states. Three states-Arizona, Florida and North Carolina-changed capital punishment law to prohibit imposing a death sentence on a mentally retarded defendant. Those laws include defining and establishing procedures to determine mental retardation. A measure in Texas that would have disallowed a death sentence for a mentally retarded defendant was vetoed by the governor. The Illinois governor also vetoed legislation that would have made it easier to sentence gang members to death. Arkansas, Connecticut and Wyoming lawmakers successfully added aggravating circumstances to death penalty laws. Murder of a child under age 12 is now an aggravating factor in Arkansas. Connecticut added as an aggravating factor that a capital crime was committed to prevent detection or to avoid arrest for a criminal act, or to hamper, prevent or retaliate against a victim for carrying out any act within the scope of official duties. Wyoming similarly added as an aggravating circumstance for imposing the death penalty that the murder was carried out because of the victim's official status as an officer of the law or court. North Carolina and Virginia laws addressed standards for defense in capital cases, and North Carolina also passed a measure requiring the state to give notice of intent to seek the death penalty, at prosecutorial discretion, before trial in order for a death sentence to be imposed.

Aiding Victims of Crime

Another new law in Virginia requires that prosecutors in any felony case consult with the victim with regard to plea negotiations in the case, at the victims' request. In Connecticut, an enactment requires that superior court judges open each session of court with an advisement regarding rights of victims under state law. Legislation to strengthen restitution for victims was passed in several states, including in Montana, Tennessee, Utah and Washington, where statutes allow restitution to be enforced as any civil judgment. "Notoriety for profit" provisions were updated in several states. Arizona added Internet or on-line depictions or re-enactments of a crime by an accused to law that voids a contract for such a presentation, unless the profits derived are deposited in the crime victim's fund. In New York, legislation addressed procedures by which such profits are deposited in and retrieved from inmate accounts. Texas added the increased value of various items due to crime notoriety to that which victims may attach. Among provisions that California lawmakers included in an urgency measure passed shortly after the Sept. 11, 2001, terrorist attacks, was a $1 million, one-time allocation to the New York victim compensation program.

Appendix. Bill Citations to Referenced 2001 Legislation

Death penalty: Arkansas H 1264; Arizona S 1551; Connecticut S 1161; Florida S 238; North Carolina S 109 and S 173; Virginia H 2580; Wyoming S 25.

DNA databases: Colorado H 1130; Michigan S 389 and H 4610, H 4611, H 4612, H 4613, H 4614 and H 4633; Montana H 359; Nevada A 54; Oklahoma S 753; Oregon H 2664; Texas H 588, S 638 and S 1380; LR.S. 15:601-620.

DNA post conviction and preservation: Florida S 366; Idaho H 242; Illinois H 2228; Indiana S 81; Louisiana S 511; Maryland S 694; Maine H 1250, Missouri S 694, Nebraska L 432 and L 659; New Jersey S 1920; New Mexico S 337; North Carolina H 884; Oklahoma H 1373; Oregon S 667; Texas S 3; Utah S 172; Virginia S 1366 and H 1311; Washington S 5896.

Drug courts, diversion, sentencing (see also Methamphetamine, below): Arkansas H 2644; Connecticut S 1160; Florida H 199; Illinois S 138; Indiana H 1892; Louisiana S 239; Maine L 929; Mississippi S 3028; Montana H 174; ; New Jersey S 2500; New Mexico S 200 and S 628; North Dakota H 1364 and H 1367; Oregon S 914; Texas H 1287; Wyoming H 82.

Information issues, systems: California S 66; Idaho H 18; Oregon H 3372; Texas H 1323 and S 479; Washington H 1174.

Law enforcement: Alaska S 145; Colorado H 1114; Kentucky S 76; Maryland H 303; Minnesota S 7; Texas S 1074.

Offender re-entry policies: Alaska S 145; Florida S 912; Nevada S519.

Other, miscellaneous: California S 824 (DNA partnership with University); Oklahoma H 1934 (race in crime and justice).

Methamphetamine: Georgia H 510; Iowa H 178; Indiana H 1892; Maryland H 192; Missouri H 471; Montana H 261; North Dakota H 1367; Ohio H 7; Oklahoma H 1361 and H 1142; Oregon H 2420; Vermont H 214; Virginia S 1178; Wyoming H 129.

Sex offenders: California A 349; Idaho S 1192; Louisiana H 363, H 426 and H 2047; Montana H 109 and H 434; New Jersey A 4; North Dakota S 2446; Oregon S 370 and S 444; Virginia H 2281.

Statute of limitations: Arizona S 1488; Colorado H 1344; Idaho H 290; Indiana S 80; Kansas S 263; Louisiana H 11; New Jersey S 1516; Oregon H 2663; Texas H 656.

Terrorism-related: California S 551; New York A 6002 and S 70002; Florida S 8; Michigan S 497, S 498 and S 675.

Victims: Arizona H 2148; California S 551; Montana S 204; New York S 5110; Tennessee H 1443; Texas S 795; Utah H 26; Virginia S 1356; Washington H 1117.

The bills covered in this report represent examples of state crime laws passed in 2001 and are not intended as a comprehensive list. To find legislation, visit www.ncsl.org and click on State Legislatures and Internet sites to get to individual state sites.

STATE LEGISLATIVE REPORT is published 12 to 18 times a year. It is distributed without charge to legislative leaders, council and research directors, legislative librarians, and selected groups for each issue. For further information on STATE LEGISLATIVE REPORT or to obtain copies, contact the NCSL Book Order Department in Denver at (303) 830-2054.

© 2002 by the National Conference of State Legislatures

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