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2007 State Criminal Justice Legislation Review
Last year turned out to be a good year for state criminal justice reform. Here are some of the highlights from 2007.
Crime Lab Reform
California: A.B. 1079 (Ch. 405) requires the California Department of Justice to establish a task force to review and make recommendations for the improvement of California’s crime labs by July 2009. Representatives of various state judicial and law enforcement agencies will comprise the “Crime Laboratory Review Task Force.” The task force must issue its report by Jan. 1, 2009.
Maryland: S.B. 351 (Ch. 147) was signed by Gov. Martin O’Malley (D) on April 24, putting the state of Maryland on the cutting edge of crime lab reform. The legislation requires crime labs to be licensed and regulated by the Department of Health and Mental Hygiene, the same agency that regulates health care facilities and clinical labs in the state. The secretary of the department will be able to suspend or revoke licenses, and regulators will be allowed to conduct unannounced inspections and take corrective actions to fix or shut down labs. The bill also establishes whistleblower protections for lab employees who witness misconduct or violations of regulations. The secretary of the Department of Health and Mental Hygiene will be advised on the regulations by a Forensic Laboratory Advisory Committee, eight members of which will be appointed by the governor. The regulations and licensing standards must be implemented by Dec. 31, 2010.
Death Penalty
Colorado: H.B. 1094 would have repealed the death penalty and used the savings to fund a “cold case unit” to help local law enforcement agencies close unsolved murder cases. The bill ultimately failed to pass.
Georgia: H.B. 185 would have allowed a judge to sentence a defendant to death if “at least 10 of the jurors cast their vote for a sentence of death.” The bill passed the House in March, but ran into problems in the Senate Judiciary Committee where it did not have enough votes. Sandra Michaels, lobbyist for the Georgia Association of Criminal Defense Lawyers, believes the bill will likely be resurrected in 2008.
New Jersey: The Garden State abolished its death penalty when Gov. Jon Corzine (D) signed S.B. 171 on Dec. 17, 2007. The state is the first to abolish the death penalty in more than 40 years. The “ultimate penalty” will be replaced by life without parole, including for the eight people currently on death row.
Tennessee: S.B. 1911 (Ch. 549) was enacted to establish the
Committee to Study the Administration of the Death Penalty. The
committee is charged with studying capital punishment in Tennessee and
making recommendations “designed to make capital punishment in Tennessee
uniform in its application and administration so that the capital
process is free from bias and error.” The committee has held multiple
hearings in 2007 and heard from renowned witnesses on defense resources
needed for death penalty representation, recording custodial
interrogations to prevent wrongful convictions and executions, and the
drug protocol used in executions. The committee must report its findings
and recommendations within a year of the committee’s formation.
DNA Databases
South Carolina: On June 18, Gov. Mark Sanford (R) vetoed H.B. 3304, a bill that required felony arrestees to provide a DNA sample. Not only did the bill require that DNA be collected from felony arrestees for inclusion in the state’s DNA database, but it also required arrestees found to be innocent or whose charges were dropped to proactively petition for the expungement of their DNA profiles from the database.
Expungement
Arkansas: H.B. 2296 (Act 744) amends the state’s statutes on expungement. First time offenders whose charges do not include committing a sex offense against a minor or driving while intoxicated are eligible for probation, after which their criminal records can be sealed or expunged if all conditions of the probation are met. The law took effect March 30.
Maryland: H.B. 10 (Ch. 63) requires law enforcement units to search for and expunge any records of arrest and/or confinement that did not lead to the person being charged within 60 days of that person’s release. Currently a person arrested without being charged must request the expungement of those records relating to the arrest and must either wait until the statute of limitations on all tort claims related to the incident expires or must waive all tort claims the person may have relating to the incident. The law took effect Oct. 1.
Nebraska: L. 470 requires the sealing of arrest records if the person is not the subject of prosecution or running for (or holding) public office. If no charges were filed after the arrest, the records will be sealed one year after the arrest. If no charges were filed because the person successfully completed a diversion program, the records will be sealed after two years. If charges were filed, but later dropped, the records will be sealed after three years. The bill also allows anyone arrested in error to petition for expungement of his or her records.
Virginia: H.B. 2076, H.B. 2959, S.B. 880, and S.B. 1223 all passed this year, with the intent of reforming Virginia’s expungement law. The new law requires the expungement of all police and court records relating to the charge and conviction of people who successfully petition for a writ vacating a conviction. If a writ vacating a conviction is granted, the court of appeals must forward a copy of the writ to the circuit court where an order of expungement must be immediately granted.
Eyewitness Identification Reform
Georgia: H.R. 352 created the House Study Committee on Eyewitness Identification Procedures, which is comprised of five members from the Georgia House of Representatives. The committee heard from exonerees and various eyewitness identification experts, and examined best practices, evidentiary standards, and potential legislation on eyewitness identification. Draft legislation released by Rep. Stephanie Stuckey Benfield (D) would require all lineups to be conducted by officers who have completed eyewitness identification training, and for all law enforcement agencies to have written eyewitness identification protocols in place by Jan. 1, 2009, or risk being denied state funding.
Maryland: H.B. 103 (Ch. 590) is a fairly modest eyewitness identification law. By Dec. 1, 2007, each law enforcement agency in the state must adopt written eyewitness identification policies “that comply with the U.S. Department of Justice standards on obtaining accurate eyewitness identification.” Before the beginning of 2008, each department must file its written policies with the Department of State Police. The Department must then compile the written procedures and open them up to public inspection.
North Carolina: Gov. Mike Easley (D) signed H.B. 1625 (Session Law 2007-421) on Aug. 23 to require lineups conducted by all law enforcement in the state to meet certain requirements in the wake of the Duke lacrosse scandal. Beginning March 1, 2008, lineups must be conducted by independent administrators or conducted in a manner “carefully structured to achieve neutral administration and to prevent the administrator from knowing which photograph is being presented to the eyewitness during the identification procedure.” The new law also requires eyewitnesses to be given instructions prior to being shown a lineup, and for individuals or photos to be presented to the witness sequentially instead of simultaneously.
West Virginia: S.B. 82, the Eyewitness Identification Act, was signed by Gov. Joe Manchin III (D) on April 3. The law implements three reforms: (1) instructions for eyewitnesses; (2) written records of lineups; and (3) a task force to develop statewide procedures based on best practices. The task force created by the legislation will include members from the defense, prosecution, judiciary, and law enforcement communities, as well as experts in forensic science. The task force is charged with developing lineup procedures that will increase the accuracy of eyewitness identifications. By Dec. 15, 2008, the task force must present its recommended guidelines to the legislature.
Informants
California: S.B. 609 would have provided “that a court may not convict a defendant, find a special circumstance true, or use a fact in aggravation based on the uncorroborated testimony of an in-custody informant.” The bill passed the legislature but was vetoed by Gov. Arnold Schwarzenegger (R).
Innocence Commissions
Illinois: Senate Joint Resolution 9 creates the 15-member Illinois Justice Study Committee, which is comprised of members appointed by state leaders in the executive, legislative, and judicial branches. The committee will investigate non-capital wrongful conviction cases with the goal of identifying common causes of wrongful (non-capital) felony convictions and problematic laws, rules, and procedures. The committee will consider various reforms and the possibility of putting into place a procedure for addressing claims of innocence. The committee must submit its final report by Dec. 31, 2008.
Juvenile Justice
Colorado: On Aug. 28, Gov. Bill Ritter (D) signed an executive order establishing an executive clemency board to review the cases of juveniles serving life sentences in adult prisons. There are 45 “juvenile lifers” in Colorado. The new seven-member clemency board, made up of members of the governor’s cabinet, experts in juvenile justice issues, two psychologists, a judge, and others, will review clemency petitions from juvenile lifers. If a majority of the board favors clemency, the case will be sent to the governor for consideration.
Rhode Island: In an attempt to save money, the state initially changed the law in 2007 so that all 17-year-olds would be considered adults. After juvenile justice advocates made an effective case that the change could cost the state more money, the law was repealed. Prosecutors still retain the discretion to waive 17-year-olds into adult court if the crime is particularly violent or if the juvenile has numerous priors.
Texas: S.B. 103, signed by Gov. Rick Perry (R) on June 8, was passed in the wake of revelations that youths incarcerated with the Texas Youth Commission (TYC) were increasingly being physically abused by employees. The new law restricts juvenile courts from committing youths to TYC for misdemeanors or for violations of misdemeanor probation, and requires each youth committed to TYC for misdemeanor offenses before June 8, 2007, to be discharged from TYC by the youth’s 19th birthday. It also requires 300 hours of training for guards; a ratio of at least one guard for every 12 youths in a facility; the establishment of an office of inspector general to investigate criminal acts among TYC guards or other employees; and requires the Texas Rangers to make monthly unannounced visits to facilities.
Post-Conviction DNA Testing
Illinois: S.B. 1023 (Public Act 095-0688) accomplished many things, including establishing a Capital Crimes Database to collect various information about the disposition of all capital cases and developing guidelines for recording custodial interrogations in homicide cases. In addition, the new law allows for post-conviction ballistics testing if such testing was not done at trial, and for additional post-conviction DNA and other forensic testing if a new testing method is available that was not available at trial.
Utah: H.B. 356, signed by the governor on March 9, provides that post-conviction DNA testing will be paid for from the DNA Specimen Restricted Account if the court has ordered the DNA test upon petition from the defendant, the state crime lab does not have the resources to conduct the DNA test, and the defendant is incarcerated and indigent.
Vermont: S.B. 6, Vermont’s 2007 comprehensive law to prevent wrongful convictions, grants post-conviction access to DNA testing that can prove innocence.
Recording Interrogations
North Carolina: H.B. 1626 (Session Law 2007-434) was enacted to require custodial interrogations in homicide cases to be electronically recorded. Recording may be via audio or video and must be “in its entirety,” including a reading of the person’s constitutional rights. Failure to properly record an interrogation “shall be considered by the court in adjudicating motions to suppress” a defendant’s statement, and “shall be admissible in support of claims that the defendant’s statement was involuntary or is unreliable.”
Vermont: S.B. 6, Vermont’s 2007 comprehensive law to prevent wrongful convictions, included language to create an eyewitness identification and custodial interrogations recording study committee. The committee examined best practices in eyewitness identification procedures and recording custodial interrogations. It was comprised of various criminal justice stakeholders and reported its findings and recommendations to the legislature in December. The study committee recommended that custodial interrogations in felony investigations, wherever practicable, should be videotaped and audiotaped, and at a minimum audiotaped.
Sex Offenders
Florida: The Sunshine State made its sex offender registry law somewhat more rational this year when it passed a “Romeo and Juliet” provision to exclude certain offenders from having to register as sex offenders. The law is retroactive, so individuals who have already been convicted and who meet the law’s criteria may petition the court to remove their names from the state sex offender registry. The new law states that a case has to involve a “victim” between the ages of 14 and 17 who willingly participated in sexual activity with the offender. The offender can be no more than four years older than the “victim.” While underage sexual activity remains a crime, a judge can remove the sex-offender designation and registration requirements.
Illinois: S.B. 121 (Public Act 095-0658) enacts reforms to the state’s juvenile sex offender registration requirements. Under the new law, juveniles adjudicated delinquent for offenses that would be a felony if committed by an adult must register for five years and then may petition the court for termination of registration requirements. If the offense would be considered a misdemeanor if committed by an adult, the registration requirement is two years before petitioning for termination of registration requirements. The legislation is retroactive. Gov. Rod Blagojevich (D) originally vetoed the measure because he was “concerned that this bill condones leniency toward sex offenders,” but the legislature overturned his veto.