State Legislative Affairs Update

State Legislative Affairs Update Scott Ehlers

Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

DNA Collection

South Carolina: Governor Vetoes Bill Seeking DNA Collection From Arrestees 

Gov. Mark Sanford (R) has gone where no governor has gone before — he vetoed a bill that would have required felony arrestees to provide a DNA sample. Sanford vetoed H. 3304 on June 18, and the veto was sustained on two separate votes by the House. Not only would the bill require that DNA be collected from felony arrestees for inclusion in the state’s DNA database, but it would also require arrestees found to be innocent or whose charges were dropped to proactively petition for the expungement of their DNA profiles from the database. Gov. Sanford said in his veto message:

“The Fourth Amendment to the Constitution guarantees that all people shall be ‘secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fourth Amendment is intended to establish a perimeter of personal integrity into which the government cannot intrude absent compelling reason. DNA databases would move the threshold in analyzing personal information from criminal investigation to surveillance — and given the personal nature of DNA material, we don’t believe this is warranted without a court order as law now dictates.

“By limiting DNA collection to those who have been convicted of a crime, we ensure that no DNA is collected unless that person has been granted due process of rights and has experienced a full vetting by the judicial system. … We think the clear divide created with conviction has served us well because one of the central tenets of American law is that one is presumed innocent until proven guilty.

“What makes this bill even more troubling is that, although many charges are dropped and many people charged are proven not guilty, the DNA specimens would not be automatically destroyed — and procedures for removal are predicated on the accused taking action.

“We believe expanding the DNA database according to H. 3304 represents an overreach by the government and an erosion of personal liberty.

“For these reasons I am vetoing H. 3304, R-159.”

Gov. Sanford’s full veto message is available at

Innocence-Related Reforms

North Carolina: Eyewitness ID Reform and Interrogation Recording Laws Enacted 

The Tar Heel State is on the cutting edge of progressive criminal justice policies thanks to two new laws signed by Gov. Mike Easley (D) on August 23. HB 1625 (Session Law 2007-421) requires lineups conducted by all law enforcement in the state to meet certain requirements. 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.” Such a method might include the use of a computer program that administers lineups or putting photographs in a folder, shuffled, and presented to a witness so the administrator cannot see or track the photos. These methods are often referred to as “blind administration.”

The legislation also requires eyewitnesses to be given instructions prior to being shown a lineup. Eyewitnesses must be told that: (1) the perpetrator might not be present in the lineup; (2) the administrator does not know the identity of the suspect; and (3) it is as important to exclude innocent people as it is to identify the perpetrator.

Among many other important reforms, the new law requires individuals or photos to be presented to the witness sequentially instead of simultaneously. Sequential presentation has been shown in scientific experiments to reduce misidentification and the use of “relative judgment” in the identification process. While other states such as New Jersey require the police to use the “sequential-blind” lineup procedure, North Carolina is the first state to require it by statute.

In addition to passing a ground-breaking eyewitness identification law, the state also passed a law (HB 1626; Session Law 2007-434) 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. Video recordings must show both the interrogator and person in custody.

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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.”

Juvenile Justice

Colorado: Governor Establishes Clemency Board to Review Juvenile Lifer Cases 

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.

Ritter, a former Denver district attorney, signed the executive order after being convinced that “there’s a body of evidence that shows kids are very different than adults.” The clemency board evolved out of discussions with lawmakers, the district attorneys’ association and the Pendulum Foundation, a youth advocacy group.

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In 2006, legislation was passed in the state and signed by former Gov. Bill Owens to prohibit life sentences for juvenile offenders. The state’s district attorneys, however, successfully fought the retroactive application of the law. 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.

Maureen Cain of the Colorado Criminal Defense Bar said of the reform, “This is a more psychologically balanced approach. We’ve got to reach a balance in Colorado between retribution and forgiveness. To recognize that kids represent separate issues is very healthy.” (“Ritter Boosts Youth Justice,” Denver Post, August 30, 2007)

Preservation of Evidence

Colorado: Task Force Formed to Study Evidence Preservation 

In the wake of a scathing exposé on lax evidence preservation standards around the country, Gov. Bill Ritter (D) has formed a task force to study Colorado’s forensic evidence preservation policies. The task force will examine how evidence is collected and analyzed and develop recommendations for the next legislative session.

In late July the Denver Post ran a four-part series, “Trashing the Truth,” that examined the problem of evidence preservation around the country. The series documented thousands of DNA specimens being lost, mishandled, or destroyed.

Ritter’s task force will include prosecutors, law enforcement representatives, criminal defense attorneys, and legislators. The governor has asked Senate Majority Leader Ken Gordon, a former criminal defense attorney, to work with the group. (“Task Force to Study Evidence Preservation,” Denver Post, August 5, 2007)

Sex Offenders

Florida: “Romeo and Juliet” Law Passed; Other Juvenile Sex Offenders to Go on National Registry for Life 

Florida 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, who 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.

One offender, Anthony Croce, has already been removed from the registry thanks to the law. Croce, now 28, could not find work and many assumed he was a pedophile, even though his only crime was having consensual sex with a fellow teenager.

While Florida’s sex offender registry law became better for some teens, it became a lot worse for many others. Teens as young as 14 will have to register as sex offenders if they are adjudicated delinquent for engaging in an offense comparable or more serious than “aggravated sexual abuse.” Such an offense can simply be engaging in sexual contact with a child under 12.

The state passed the law to comply with the new federal Adam Walsh Act, which requires all states to pass similar statutes or face losing 10 percent of their federal Byrne grant funding. Federal law requires such juveniles to be registered for life, with the chance of getting off the registry in 25 years if they have a clean record. Public defenders in Florida plan to challenge the law, saying it punishes juveniles as adults without allowing jury trials. (“Sex Act at 14 Could Put Child on List for Life,” South Florida Sun-Sentinel, August 9, 2007).