REMARKS OF

THE HONORABLE DEBORAH J. DANIELS

ASSISTANT ATTORNEY GENERAL

OFFICE OF JUSTICE PROGRAMS

AT THE

AMERICAN LEGISLATIVE EXCHANGE COUNCIL’S 2002 STATES AND NATION POLICY SUMMIT MEETING

SATURDAY, DECEMBER 14, 2002

WASHINGTON, DC



I’m pleased to have this opportunity to talk with you about the impact you, as state legislators, can have on crime and related problems in your state, and how we at the Office of Justice Programs can assist you in that effort.

For those of you who aren’t familiar with OJP, we’re an agency in the U.S. Department of Justice whose mission is to work with state and local governments, researchers, national criminal justice organizations, and others to develop innovative approaches to reducing crime and improving the operations of the criminal and juvenile justice systems in states and local communities.

While many of you may not be familiar with OJP, rest assured that OJP is familiar with the ongoing criminal justice issues in your state. Our staff works closely with your state criminal justice agency, your state and local law enforcement officials, corrections officials, and community leaders to identify the crime-related problems in your state, and to develop solutions to address those problems.

We sponsor the Weed and Seed programs in your communities. We provide funding for many of the law enforcement agencies in your state. We support mentoring programs for at-risk kids in your schools, and the substance abuse treatment provided in your prisons.

I know that, as state legislators, you’re faced with many critical issues today, not least among them the budget shortfalls being experienced in many states. But I want to talk to you about 5 critical public safety issues facing states and local communities that I hope you will work to address in your jurisdiction.

Drunk-Drugged Drivers

The first issue is the problem of drunk or drugged drivers. Mothers Against Drunk Driving recently gave the nation a “C” for complacency in its national report card on efforts to combat drunk driving. MADD reports that, after more than 10 years of decreases, over the past three years, drunk driving deaths have climbed by 5 percent. Last year, more than 17,000 people were killed in alcohol-related crashes. That’s 41 percent of all traffic deaths. More than 500,000 Americans are injured annually in crashes involving alcohol. And the annual economic cost of alcohol-related crashes exceeds $114 billion.

Even more alarming are the estimated millions of individuals who operate motor vehicles while under the influence of drugs. The American Bar Association reported recently that those who drive under the influence of drugs are less likely to be prosecuted than those who drive drunk because most state laws require prosecutors to prove an illegal drug caused impaired driving.

Moreover, unlike alcohol, there are no national standards for testing drugged drivers, and law enforcement officers often don’t have the authority or training to detect illegal drug use by motorists.

Both MADD and the American Bar Association have called on state legislators to pass tougher laws against drunk or drugged drivers. While a number of states have some kind of statute on the books regarding drugged driving, only 8 states – Arizona, Georgia, Illinois, Indiana, Iowa, Minnesota, Rhode Island, and Utah – have zero-tolerance laws that prohibit motorists from driving while under the influence of drugs, as well as alcohol.

In my home state of Indiana, for example, prosecutors don’t have to prove the impairment was caused by drug use, only that the individual was driving under the influence. And why, particularly given the fact that the very ingestion of controlled substances is illegal, should we require greater proof of impairment in order to prosecute a drugged driver?

I suggest that more states should pass such laws, to enable the effective prosecution of both drunk and drugged drivers. And we need to provide meaningful sentences for violators, to make sure these offenders don’t have the opportunity to further endanger our communities through their reckless behavior. I encourage you also to assist law enforcement officers in obtaining the training they need in order to detect drug use by drivers.

I know that, with respect to driving under the influence of alcohol, the Congress has tied a reduction in the blood alcohol level necessary to convict to federal highway funding. While I understand and sympathize with the federalism concerns this raises, rest assured that the passage of those laws, as well as zero-tolerance drugged driving laws, will save the lives of your fellow citizens.

Child Safety

The second issue I want to raise is child safety. A recent analysis of government data found that infants are now murdered as often as teenagers. We need to do a better job of ensuring that state laws adequately protect children and hold their abusers fully accountable. I recently learned, for example, of a problem encountered in the State of Washington, where in 1996 a court interpreted the state’s “corpus delecti” law so onerously that it has now become impossible to admit a child murderer’s confession, even if he confessed repeatedly to multiple people, unless the prosecutor can show independent physical evidence proving a direct causal connection between the alleged killer’s acts and the child’s death.

As a result, in a recent case in Kitsap County, Washington, a mother was freed after admitting to smothering her infant daughter, because the autopsy findings could not prove the death was not related to Sudden Infant Death Syndrome (SIDS). And any pathologist will tell you that you cannot determine as a matter of proof that a child died of suffocation rather than SIDS. Murder charges against the mother were dropped, even in the face of evidence of previous child abuse.

This case has had a chilling effect on child homicide prosecutions throughout the state. And the Washington Association of Prosecuting Attorneys has lobbied legislators to change the law so that confessions can be introduced in infant homicide cases.

Other states, for example, California, make it clear that the corpus delicti can be established merely by providing a showing that the independent evidence is consistent with a crime having been committed. In California, the mother’s confession would have been admissible, because the autopsy findings, while they couldn’t prove that the child died of suffocation and not SIDS, were consistent with a suffocation .theory. I suggest that you may wish to examine your state’s laws, and consult with your state prosecuting attorneys’ association on this subject to see if any amendment might be needed.

But even when child murderers are convicted, their sentences are often much lower than they would be if they had murdered another adult, according to the National Center for the Prosecution of Child Abuse. OJP has supported the National Center, which is operated by the National District Attorneys Association’s American Prosecutors Research Institute, for many years. The Center provides expert assistance to help prosecutors trying child abuse cases.

I encourage you to look at how child murder and child abuse cases are handled in your state, and to pass laws to ensure that offenders are held accountable and that children are fully protected. For example, permitting the use of closed-circuit testimony and videotaped trial testimony of children can protect them from the trauma of having to face their tormentor, who in many cases has threatened to kill the child if he or she testifies. This technology enables child victims to tell the truth without fear of reprisal. Our Bureau of Justice Assistance provides funds to state and local governments to utilize this court room technology in child abuse cases.

We also need to do a better job of protecting our children from kidnaping. While statistical data show that stranger abductions are actually on the decline, a number of recent child abductions have reminded us that we must work harder to ensure that our children are safe in their homes and neighborhoods.

In October, President Bush hosted the first ever White House Conference on Missing, Exploited, and Runaway Children. The White House conference brought the President and the heads of 3 cabinet agencies – the Departments of Justice, State, and Health and Human Services – together with more than 600 other experts to discuss ways to raise public awareness about missing children and to generate recommendations and best practices for law enforcement, parents, and communities.

One initiative that has proven successful in locating missing children and returning them unharmed to their families is AMBER Alert. The AMBER System – which partners law enforcement and public broadcasters – is a potent tool that instantly mobilizes entire communities in the most serious abduction cases. Since 1996, local and state AMBER Alert programs have been credited with the safe return of over 40 children to their families. And these initiatives are not costly – they just require careful planning, collaboration, and quick action when a child is abducted. They may not even require legislation – but some states have used legislation as a useful vehicle for bringing all the appropriate partners to the table.

This year, federal legislation was introduced that would establish a national effort in the Department of Justice, to expand the AMBER Alert network and to coordinate regional efforts. The President used the opportunity of the White House conference to voice his strong support for the National AMBER Alert Network Act of 2002.

Unfortunately, that legislation did not make it through Congress, and we’ll have to wait for it to be re-introduced next year. But, even without federal legislation, we are moving forward.

At the direction of President Bush, the Justice Department is implementing the main provisions of the AMBER legislation. As the National AMBER Alert Coordinator, I have been directed to serve as a nationwide point of contact to assist state and local officials with developing and enhancing AMBER plans, and to promote statewide and regional coordination among plans. My staff and I are already taking action on a number of fronts. For example, we’re working with the National Center for Missing and Exploited Children to review the current state of the AMBER Alert system. We’re looking at:

   - what states currently have programs;
   - which states need help;
   - what training, technical assistance, or equipment may be needed;
   - and which states have programs that can serve as models.

We’ve also worked with the National Center for Missing and Exploited Children to produce a guide introducing and explaining the AMBER Alert system to law enforcement and broadcasters. The guide is designed to encourage communities to adopt the system and to provide some basic “how to” information. You can order a copy on the Internet at www.missingkids.com.

The Justice Department also is developing nationwide criteria for issuing and disseminating AMBER Alerts, to help ensure that the use of the system is reserved for rare instances of serious child abductions.

And we’re working with the U.S. Department of Transportation to develop a program that will provide funding to support AMBER Alert training and education programs; upgrade emergency alert systems; and facilitate the use of electronic highway message board systems as part of AMBER Alert plans.

Last week, we brought in national leaders from the broadcast and law enforcement communities to discuss how best to implement a nationwide AMBER Alert collaboration. Our goal is to get this effort up and running in communities and states, and among contiguous states, throughout the nation, as soon as possible.

As state legislators, you are uniquely positioned to lead your state in developing systems to help local law enforcement locate abducted children and their abductors. I hope you will work to implement .AMBER statewide and to ensure that your state system coordinates with the ongoing, national initiative. Children’s lives depend on our combined efforts.

Domestic Violence

The third issue I want to flag for you is domestic violence. We need to improve our laws and policies related to domestic violence cases. For example, I encourage you, if your state constitution permits, to consider allowing preventive detention for offenders in domestic violence incidents where the victim is in imminent danger.

At the very least, courts should develop specific conditions for bail in domestic violence cases. The defendant's prior record and record of failure to appear in court are essentially irrelevant in these cases. Instead, we need to develop standards for bail that take into account the risk of injury to the victim or others in the community if the defendant is released.

In Indiana, for example, the state constitution requires that every defendant, except in cases of murder or treason, must be given an opportunity to post bail. We can’t deny bail to those charged with other crimes. However, we were able to get legislation passed that requires the court, in setting the amount of bail, to take into consideration the risk the release poses to persons in the community. This is an important safeguard for the victims of domestic violence.

Some states also have passed laws enhancing penalties when spousal abuse occurs in the presence of children. These state legislators recognize that violence in the home severely traumatizes children and teaches them that violence is an acceptable way to deal with conflict. Research has shown that domestic violence is learned behavior, one generation passing down this violent heritage to the next. We need tougher state laws to end this cycle of violence in our homes.

DNA Backlog

Another key to reducing violence in our communities is expanding the use of DNA to solve cases. Hundreds of thousands of DNA samples from crime scenes and from offenders await analysis in evidence storage lockers and forensic laboratories across the country. The longer this evidence goes unanalyzed, the longer the crimes to which it relates go unsolved. And for victims of crime, justice delayed is truly justice denied.

At the Office of Justice Programs, through the National Institute of Justice, we’re working hard to increase the capacity of crime labs around the country to conduct DNA and other forensic analysis. We’re funding DNA backlog elimination – both in the offender databases and in crime scene evidence. And we’re working to get all convicted offender DNA profiles into CODIS, the national DNA database, which is being expanded through additional funding.

We’re also engaged in technological research to reduce the cost and increase the speed of DNA testing, so that your state forensic labs will be able to conduct more tests with the same amount of resources. With this technology, communities around the country will be able to solve more crimes, earlier, and more accurately than ever before. This, in turn, will help judges and juries make more reasoned decisions, and will result in the right people being convicted and incapacitated.

But in order for this effort to be effective, state legislatures and other officials need to be sure they are maximizing DNA’s usefulness to the law enforcement effort.

Legislatures are passing laws at a rapid pace, to increase their own states’ databases. We will be developing some crime trend information, as well as model legislation, to assist your legislatures in addressing key issues, such as:

We hope to have the model DNA legislation drafted in time for your summer conference. And I hope you’ll carefully consider adopting this model or similar legislation in your states.

One more issue on this subject that I beg you to consider is related to my question regarding the potential effect on DNA backlogs of adding additional populations to those who are to be tested. Though we are putting a great deal of money into reducing the backlog of untested samples in the states, those backlogs will only grow again unless the crime labs’ capacity can be expanded. Now, NIJ is doing some great work, as I mentioned, trying to make the tests faster and less expensive. This will go a long way toward expanding the ability of your labs to conduct more tests. But even at that, the forensic laboratories throughout the country are underfunded.

I know that the members of ALEC are dedicated to finding cost-effective solutions to problems. I’ll make a couple of suggestions for your consideration, but I’m sure you can think of more. First, there’s the possibility of adding to the fees assessed criminal defendants, to pay for increased lab capacity. Secondly, many states don’t plan as strategically as they could for the use of the billions of dollars in formula grants that we distribute to the states each year. Some of that funding could be used to increase lab capacity. Neither of these solutions would add a nickel to your state’s budget.

Wiser Use of Limited Resources

This is the perfect segue into the final issue that I want to talk about today: and that is money – the bottom line. How do we pay for advances in protecting our communities? At the state and local level, the continued need for traditional criminal justice services, combined with increasing homeland security responsibilities, are putting a severe strain on budgets already suffering from the economic downturn.

At the Department of Justice, we recognize that we must strike a balance between national security and neighborhood safety. We must find ways to maximize our resources so that we can continue to make advances on both fronts.

The Office of Justice Programs remains committed to providing financial and other assistance to support criminal justice improvements at the state and local level. However, we, too, must face budget realities. One unpleasant reality is the loss of our discretionary funding in recent years. These funds – through which we provide direct support for innovative or national-scope programs – have been increasingly earmarked by Congress for specific programs. This past fiscal year, we had virtually no discretionary funds. It was all earmarked – 100 percent!

These fiscal realities mean that we all have to be more creative with our existing resources. So we’re encouraging jurisdictions to use their limited federal grant funding to build partnerships and to leverage other resources – from state, local, and private organizations – to sustain their efforts. We’re also working to help jurisdictions focus funds on those criminal justice programs and approaches that have been shown – through research and evaluation – to be effective.

At OJP, we’ve been meeting with major criminal justice organizations to discuss how we can be a better information broker on “what works” in preventing crime and improving justice operations.

We’re working to determine what information exists on best practices in criminal justice, so that we can take the creative work that’s going on across the country and broker it so that everyone can take advantage of approaches that work.

To ensure that we know what works, and what doesn’t, we all have to provide more support for evaluations to measure the effectiveness of the programs we support with federal or state dollars. At OJP, we’re building performance measures into all our programs, and requiring grantees to either participate in national evaluations or to partner with local researchers to develop assessment tools for measuring the effectiveness of the grant programs we fund.

And we’ll be sure to share this “what works” information with you and your colleagues, as we move forward, to assist you in making policy decisions that are based on scientific evidence of effectiveness.

I encourage you to hold your state criminal justice officials accountable for the wise investment of taxpayer dollars and to support efforts to measure the effectiveness of criminal justice operations and initiatives in your state. In particular, as I mentioned, we are encouraging state criminal justice agencies to plan strategically with law .enforcement and other public officials at the local level, in order to maximize the effectiveness of the over $3 billion in formula grant funding we send to the states each year.

As state legislators, you play a critical role in improving criminal justice in your state and in ensuring the safety of your communities. I hope you will think about the issues I’ve raised today and what legislative remedies are needed in your state.

And I hope you will let me know how the Office of Justice Programs can assist in those efforts. We stand ready to work with you to make America’s streets safer and our citizens more secure. Thank you very much.

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