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DNA & A Government that Works

Location: Baltimore, MD

University of Baltimore School of Law

President Bogomolny, thank you for your leadership of this great university. The president gave me dispensation for not having attended this university and I greatly appreciate that. My father-in-law Joe Curran attended this great university, as did my wife.

I want to thank Professor Grossman. And thank you, Attorney General Curran. Joe Curran is a great public servant, a great father-in-law, a great grandfather, and I thank you for your invitation.

It's great to be with all of you today. And to be able to discuss this exciting issue of DNA and its broader application to public safety and to law and to law enforcement.

With us today are two people who have been instrumental to our efforts on DNA in the State of Maryland: Kristen Mahoney, Executive Director of the Governor's Office of Crime Control and Prevention and Terry Long, Director of the Maryland State Police Forensic Sciences Division.

I'm going to talk for about 20 minutes and then we'll open it up to the fun part, where you can ask whatever you wish and I'll do my very best to answer it.

Today is a special occasion. I'm sure you're all aware of this, right? Today is the 173rd anniversary of the day on which Abraham Lincoln received his license to practice law, making this, perhaps, the perfect occasion for a forum on law and public policy, particularly when we discuss that most sacred and important responsibility of a government "of the people, by the people and for the people," and that is the responsibility of public safety.

The public safety of our people, the security of our people is, I would argue, the highest priority of any government at any level; municipal, county, state, national.

The public's safety is essential to every part of our mission statement in the O'Malley-Brown Administration, which operates your public corporation, the State of Maryland, entrusted in four year increments of time. And that mission statement is this: everything that we're about should be to strengthen and to grow the ranks of an increasingly diverse and upwardly mobile middle-class. And how do we do that? We do that by improving public education and by improving public safety, so that we can expand opportunity to more people, rather than fewer. Not only opportunities to learn and to earn, but opportunities to enjoy the health of the Chesapeake Bay and our environment to more people rather than fewer. And also the health of one another.

We'd probably all agree that the right to live in a safe neighborhood -- a neighborhood where our kids can have a place to play free of crime, violence or hypodermic needles --
is a right that is a basic aspiration that's really universal to all human beings, the entire human family,… whether you happen to be young or old, rich or poor, black or white, Democrat or Republican.

The value of the potential of emerging DNA technology to the pursuit of that sort of progress -- towards that fundamental human aspiration -- cannot be overstated.

In a country where we're united by our belief that there is no such thing as a spare American or a spare Marylander, the merger of DNA technology with innovative public policy and dedicated law enforcement allows us to take more violent criminals off our streets and to do so before they can harm another human being.

This is valuable to the dignity of every individual in our society and allows us to keep innocent people out of jail and even off death row, as the Attorney General mentioned.
Maryland's New DNA Law

Some of you may be familiar with our State's new DNA law, which our Administration pushed very hard to pass in 2008. In crafting this expansion of our existing DNA statute, we intended to strike a balance between protecting individual liberty and protecting individual privacy rights and also protecting the public safety and security, insuring that when we convict someone of a crime we actually get it right.

Our new law, which took effect this past January, differs from previous statutes in that it requires DNA samples to be taken from those charged with felonies and certain Part 1 property crimes, at the time they are charged.

Meanwhile, it also includes what we believe are some of the most significant privacy safeguards of any statute adopted in the country. DNA is not analyzed until after the first scheduled arraignment date and samples are automatically expunged from all databases upon acquittal or dismissal of charges.

Given that today's forum is themed around law and public policy, probably the most pertinent questions that we have to answer are: Number one, is DNA collection from defendants and suspects Constitutionally permissible? And Number Two, is DNA collection sound public policy?
Constitutional Merits of DNA Collection

All of us in this room, I think, are either it's safe to say either practicing law or aspiring to practice law or, in some cases, recovering former attorneys. So let's talk start by talking about the Constitutional issues,…

Maryland's current DNA law represents an evolution that the Attorney General talked about. Fifteen years ago in 1994, the General Assembly passed a law requiring DNA to be collected from a limited number people convicted of serious offenses-- crimes like child sexual abuse and rape.

The law was expanded in 1999 to cover violent criminals once they were convicted of murder or robbery, first degree assault, or attempt to commit any of those crimes.

And in 2002, after an intense lobbying effort led, actually, by people from Baltimore City, the law was expanded further to cover all of those convicted of felonies and serious misdemeanor charges.

As Attorney General Curran mentioned, the law received a serious legal challenge in State of Maryland v. Charles Raines, with the State very ably represented by the Attorney General, who prevailed.

The decision in that case really guided our efforts as we crafted the expansion of our DNA laws in 2008.

The court ruled that the taking of DNA samples does not constitute a significant violation of privacy. In addition, the court's ruling noted that the Constitutionality of DNA collection laws has been upheld nationwide, a point which has particular significance given that all 50 states and the Federal Government now require some or all convicted felons to submit DNA samples.

And in Virginia, where a DNA law similar to our own was upheld by the State Supreme Court, the decision actually cited Raines in Maryland and said that that a DNA profile is "akin to a fingerprint. As such, appellee and other incarcerated individuals have little if any expectation of privacy in their identity."

In citing an earlier precedent, the Virginia court also held the government has a legitimate interest in "knowing for an absolute certainty the identity of the person arrested, in knowing where he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution."
DNA as Public Policy

From a policy perspective, we believe in the O'Malley-Brown Administration that these are more than legitimate governmental interests, they are essential to protecting the common good, to protecting the safety and security of our people.

Clearly there is no Constitutional bar to DNA collection. Now, what's it matter? Why does it matter?

In the City of Baltimore when I was serving as mayor, we became card carrying believers of the possibility of the power of DNA nearly a decade ago when, after a tough election campaign, we were handed the keys to a city government in a city that was suffering from some of the highest levels of violent crime and drug addiction and violence of any city in America. And for all the progress, we still suffer from too much of that.

Believing then (as we do now) that all progress becomes possible when we take our streets back from violence, from crime, from drug addiction and despair, we immediately set the big goal of "making Baltimore a safer, cleaner, healthier place." We repeated it everywhere we went as part of our mission statement.

Together with the citizens of Baltimore, in a relatively short period of time over seven years, we were able to reduce violent crime in our city by 40 percent. That's a lot of lives.

And we did so by embracing some strategies, quite frankly, that we borrowed and imported from other cities like New York. Once called the Rotten Apple, the Big Apple was afflicted by high levels of violent crime, but they were able to turn it around. The NYPD's used CompStat to measure performance in policing: to set goals, to hold public efforts and public institutions accountable for achieving those goals; to broadly share information, rather than hoarding it; and to find a willingness to change course whenever necessary to move the effort, to move the graphs in the right direction.

As we implemented these strategies, we took notes of the success big cities in other parts of the country were starting to see with DNA evidence. And we resolved to see if this emerging science could work for us and help us get better results in Baltimore.

And, indeed, it did.

We made an initial investment of $350,000. And we're very fortunate that Bob Embry and the good folks at the Abell Foundation not only matched that investment, but exceeded it with private dollars, $400,000, to help us knock off what, in essence, were cold cases, rape kits that had not been analyzed. They were sitting on the shelves of our police department, as, indeed, they sit on the shelves of many good police departments in the United States.

But we soon learned that even with the resources that knocked out our own local backlog of unanalyzed cases, we needed a commitment and we needed the partnership of a State that was committed to creating a statewide database, a statewide library, if you will, of DNA samples from that tiny core of individuals who drive so much of the violence and the suffering and the harm and the carnage that happens in our State.

Crime, much like pollution, is not restricted to city borders. Progress at the municipal level requires a state government to efficiently analyze and store DNA samples, otherwise crime evidence can't be matched to other samples that might be in that library from other places, from other counties, from other jurisdictions, indeed, from other states.

At the time, there was also a need for more State level experts to be hired and better technology and equipment to be purchased and actually to be put to use.

What's more, we had come to believe that our DNA law should be expanded to cover all violent criminals, so that we could more effectively work to take criminals off our streets.

And while we succeeded in getting an expansion in the law passed, our progress was met with somewhat of a roadblock,…

Get this, upon taking the Oath of Office of Governor, we found in 2007 that our State had a backlog of 24,000 -- 24,000 -- unanalyzed DNA samples that had been allowed to build up over the course of the prior years.

And, worse yet, there were also another 15,000 samples that should have been taken from qualifying convicted violent offenders that were just never taken. And many of these individuals were back out on the streets, having completed their sentence or were out on parole and probation.

We set, therefore, the big goal,…the big, scary goal of knocking out this backlog.

And through a lot of hard work, a lot of coordination and cooperation with our lab technicians, with our correctional officers, with the State Police, with Parole and Probation, who actually had to do call-ins of hundreds of those individuals that were on the street, had them come to I believe the Fifth Regiment Armory in the case of Baltimore, to submit the cheek swab,…

… we were able to clear out the backlogs within a year.

We're old fashioned, we think that with the taxes you pay, your government should actually work. If we have laws like this on the books to protect the public, then we should make the investments necessary to execute those laws, that your government should actually work.

How did we go about this?

Number one, first and foremost, we set a big goal. People work against deadlines, people work against goals. And if you don't care to set a goal and you don't care to set a deadline, then you're never going to be able to make progress.

So we committed openly to holding ourselves accountable for getting there, accepting the peril that members of the media would write unkind things if we failed and acknowledged that if we succeeded they would write little or nothing at all. (Laughter.)

So today, to continue to hold our DNA efforts open and accountable, we've made information on the number of samples added to our database, the number of positive matches, the number of resulting arrests available online for all to see.

Number two, through our StateStat initiative of performance measurement, which applies to all departments and agencies, we began tracking our progress to eliminate our backlogs. Not once a year, as governments typically do,…

… Marc Morial, who was the Mayor of New Orleans, once said to me when I was first elected mayor, I met him at a U.S. Conference of Mayors, he said, "Kid, if you ever want to hide something, make sure you put it in the city charter or the city budget, because nobody ever reads either one." …
And typically in government that's how we measure things, right? Not the outputs, but the inputs. And typically, only annually.

Well, we measured not once per year or not once per quarter, but once per week. How are we doing? What's the trajectory? When are we going to knock out the backlog? Are we doing a better job in this one week than we did in the prior week? Are we doing better this month than we did last month? And we continued to meet very regularly until we saw that those graphs were actually moving in the right direction.

Number three, we filled long vacant positions and hired new DNA experts in the Maryland State Police. And we trained hundreds of parole and probation officers to collect DNA samples. We closed gaps in our DNA collection process to ensure inmates had their DNA collected before they were released.

Number four, we invested in the latest DNA technology and also in new equipment.

Number five, we committed to broadly sharing information, rather than hoarding it. And to share that information in real time with our partners and local police departments and local detective bureaus.

On July 2008 we achieved match number 1,000. Having matched as many samples, therefore, in just two years as had been matched in the prior eight years of the program.

In 2008, believing that every single individual that we apprehended could be the one that would otherwise commit the next violent crime, or more accurately, a series of violent crimes if they weren't apprehended and brought to justice, we joined with Attorney General Doug Gansler and nearly every police chief and every State's Attorney in the State in asking the General Assembly to expand our DNA law once again.

And after passing that law in 2008, Maryland became the 13th State in America to require all those charged with violent crimes and certain misdemeanor burglaries to submit DNA samples when they are charged. Today we are one of 21 States now who do it, with additional numbers following suit, that have similar laws on the books.

Our new law took effect in January 2009 and since that time we have collected 7,818 new samples, for those of you counting along with us, we have uploaded 2,486 of those samples into CODIS. We've achieved 25 total hits. CODIS, by the way is the national lab or, rather, the national database. We've achieved 25 total hits, additional hits. And we've used those hits to arrest four violent individuals, who might otherwise still be on the streets today, harming our family members, harming our neighbors, harming even ourselves.

All told, today Maryland has now uploaded 80,167 samples in the Federal Government's combined DNA index system, CODIS. That's nearly triple the number of samples that we had at the end of 2006 -- 28,155 samples which had been collected again over the course of that prior entire decade.

So by closing our backlogs, to date we've been able to use DNA to make 167 arrests, including 15 individuals who were arrested for homicide and 83 arrested for sexual offenses. And last year DNA was one of the several tools and strategies which allowed us together -- by making the connections, by sharing information with local law enforcement -- to achieve an 11 percent reduction in homicides Statewide. That was our second biggest reduction in homicides on an annual basis this side of 1985.

On a year to date basis, knock on wood, we are at a 12 percent, almost up to a 15 percent reduction in homicides as I speak this year.

So what does all of this mean individually?

I'll leave you with one last story,…

In 1983 a young Essex Community College student was raped in her own bed, by an assailant who had entered her bedroom. She reported the crime immediately, DNA evidence was taken. But for nearly 20 years the crime was unsolved. And even some members of her own family suggested that she might be making it up.

Nearly 20 years later a man was charged with this brutal crime and a few years later, as we closed our backlog in 2007, DNA evidence implicated this person, this suspect, this perpetrator, this rapist in the commission of more than 30 crimes, including six rapes.

In 1978, authorities had taken a DNA sample from his first rape victim. And had our current law been on the books when he was charged the following year with the offense of assault with intent to rob, authorities would have been required to take a DNA sample, evidence that would have linked him to the 1978 rape, presumably putting him behind bars,… and the 1983 rape and his other six rapes would have been prevented. Jail actually works for some people and for some people, for the rest of our sakes, that's where they need to be.

DNA matters.

And DNA illustrates a larger point, which is this: that the combination of law and public policy and a coordinated effort really can make a difference. There is a lifesaving value to a government that works.

As our State's next generation of attorneys, you're going to be uniquely positioned to help bring about even greater changes, to help us build a stronger future for ourselves, for our kids, for their kids.

And as your fellow citizen, I hope that this Law & Public Policy series will help encourage you to choose a path of public service. We need you to go into public service. It is a noble calling.

And I really thank you for your attention, for your interest, for being here today. And for your dedication. Thanks a lot. (Applause.)

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