THE HONORABLE DEBORAH J. DANIELS
ASSISTANT ATTORNEY GENERAL
OFFICE OF JUSTICE PROGRAMS
ANNUAL MEETING OF THE JUDICIAL CONFERENCE OF INDIANA
SEPTEMBER 10, 2003
Good afternoon! I am honored to have been invited to address this distinguished conference. My staff asked if it might be a little daunting to be up here in front of you on the dais instead of arguing before you in a courtroom -- but I told them that this is the far better circumstance: I can’t be overruled, ordered to return to my seat, ruled out of order, or held in contempt. While this is all quite heady, I promise to do my best not to abuse this rare privilege in the brief time we have together today.
It is a great honor to have been invited to address the Judicial Conference. I have many friends and long-time colleagues among this group, and I have the greatest admiration for you and the critical work you do every day to administer justice, ensure the integrity of our laws and our Constitution, safeguard our freedoms, and shape the framework of our society.
At the Department of Justice, we share with you this mission of administering justice. In fact, the Daniel Webster quote on your conference brochure aptly summarizes our common philosophy: “Justice,” Webster said, “is the great interest of people on earth. It is the ligament which holds civilized beings and civilized nations together.”
The mission of the Office of Justice Programs is to provide federal leadership in developing the nation’s capacity to prevent and control crime, administer justice, and assist crime victims. We do this by partnering with federal, state, and local agencies, researchers, and national and community-based organizations, to develop, operate, and evaluate a wide range of criminal and juvenile justice programs.
We also provide funding to support innovative public safety strategies. Last year, we awarded more than $70 million in various grants to jurisdictions throughout Indiana. Most of these funds are distributed through the Indiana Criminal Justice Institute. For example, funding through our Edward Byrne block grant program is helping to support the development and implementation of your case management system here in Indiana.
We also provide funds for initiatives to address violence against women, support victim assistance and compensation, reduce delinquency, and improve juvenile justice. Our work touches every facet of the justice system, including court operations, and even assists communities in economic development and neighborhood revitalization, through our Community Capacity Development efforts -- the most well-known of which is the Weed and Seed initiative.
We fund work in correctional systems – last year, we awarded over $11 million to Indiana to support substance abuse treatment for state prison inmates – and counter terrorism: we awarded another $9.8 million last year to help Indiana jurisdictions purchase equipment to prevent and respond to domestic terrorism.
Until March of this year, we housed the Office for Domestic Preparedness, or ODP – the office responsible for training and equipping first responders to incidents involving the use of weapons of mass destruction. Though this component transferred to the new Department of Homeland Security in March, the Office of Justice Programs continues to provide administrative support to ODP. And the development of counter terrorism technology is a major priority for our National Institute of Justice.
The day after the terrorist attacks of September 11, 2001, President Bush charged Attorney General Ashcroft with a mission that has become the central focus of the Justice Department. He told the Attorney General, “I want you to make sure this never happens again to our people.”
Since that day we have been working at all levels to prevent another terrorist attack on our homeland. In fact, the very mission of the Department of Justice has undergone a sea change: it is now imperative that we focus not just on reconstructing such scenes of carnage after the fact for a jury, after significant loss of life has already occurred, but also on preventing the mass murder of people in this country.
But I assure you that we have been doing so with great reverence for individual rights. I want to talk to you for a few minutes this afternoon about a vital tool in our nation’s counter terrorism arsenal – the PATRIOT Act – and try to dispel some of the myths that have grown up around this important legislation.
I hasten to assure you that this is not an “assignment” I have received, from anyone – but I feel compelled, as someone who is aware of the truth about this legislation and who has been somewhat amazed at the substance and tenor of some of the public criticism of it, to provide Indiana’s judges with accurate information. And I believe this audience, in particular, would be interested in learning more on this subject. So I took it upon myself to review in detail the Act’s provisions.
As judges, you are accustomed to examining carefully the law and the facts before reaching conclusions. And you are more aware than most -- especially those of you who are former federal prosecutors – of the tools already available to federal law enforcement in traditional criminal cases. The PATRIOT act simply allows investigators to take the same tools that we’ve used for decades to investigate organized crime and drug trafficking, and makes them available to meet the new challenges and threats posed to our citizens in the post- 9/11 era.
As Senator Joe Biden of Delaware explained during the Senate debate about the Act, describing the status at that time, and I quote: “the FBI could get a wiretap to investigate the mafia, but they could not get one to investigate terrorists. To put it bluntly, that was crazy! What’s good for the mob should be good for the terrorists.” Others pointed out the inability of the government to “connect the dots” and predict, thereby possibly preventing, the attacks.
Let me give you a few examples of how the PATRIOT Act applies existing legal principles to our counter terrorism efforts.
For years, law enforcement has been able to use what are routinely referred to as “roving wiretaps” to investigate ordinary crimes, particularly organized crime; and terrorism is just another form of organized crime. After authorization by a federal judge, a roving wiretap can be applied to a particular suspect, rather than a single phone or communications device. That way, all of a suspect’s communications can be monitored, no matter how many different cell phones or other devices he uses.
The PATRIOT Act simply authorizes agents to seek court permission to use the same techniques already available in organized crime and drug cases and use them in national security investigations to track terrorists.
Another example is the use of delayed-notice search warrants. These are designed to keep criminals from learning of an investigation and then fleeing, destroying evidence, intimidating or killing witnesses, or taking other action to avoid arrest or conviction. In narrow circumstances, federal courts have long allowed law enforcement to delay, for a limited time, the point at which the subject of an investigation is told that a judicially approved search warrant has been executed.
This reasonable delay gives law enforcement time to identify the criminal’s associates, eliminate immediate threats to our communities, and coordinate the arrests of multiple individuals without tipping them off beforehand.
These delayed notification search warrants have been used for decades, have proven crucial in drug and organized crime cases, and have been upheld by courts as fully constitutional. They’re a vital tool in investigating sophisticated and highly dangerous terrorists and other criminals -- but until the PATRIOT Act was passed, the law simply did not contemplate their use for this class of criminals.
Considerable concern has been expressed by some about another provision of the PATRIOT Act that allows federal agents to ask a court for an order to obtain business records in national security cases. What many people don’t know or seem to forget, however, is that in traditional investigations, investigators and prosecutors can gain access to all sorts of business records, without judicial oversight, simply by issuing a grand jury subpoena.
In the case of terrorism investigations, the PATRIOT Act simply gives us the opportunity to obtain the same kinds of records in terrorism investigations, but only with judicial oversight. The government has to apply to the Foreign Intelligence Surveillance Court for permission to obtain these records. And we only get them under certain, clearly defined circumstances.
The government must demonstrate to the court that the records are sought for an authorized investigation to obtain foreign intelligence information on a person outside of the United States, or to protect against international terrorism or clandestine intelligence activities. We also have to convince the court that any investigation involving a person in the United States is not conducted solely on the basis of activities protected by the First Amendment.
And who makes up the membership of this court? Well, our own beloved District Judge here in the Southern District of Indiana, the late Judge Noland, was a member. It is made up of respected jurists from throughout the country.
So law-abiding Americans don’t have to worry that the FBI is going to go down to the local library to examine their reading habits. In this case, the PATRIOT Act’s privacy protections are actually greater than those available in a traditional criminal investigation.
In addition to allowing these traditional tools to be used to investigate terrorism, the PATRIOT Act also removed major legal barriers that prevented the law enforcement, intelligence, and national defense communities from sharing vitally important information, and coordinating counter terrorism efforts.
In the bleak days after September 11, 2001, many Americans were horrified to learn about the critical gaps in communication and intelligence sharing that might have prevented this national tragedy. The PATRIOT Act increases our ability to “connect the dots” in revealing the shadowy world of international terrorism.
Finally, the PATRIOT Act increased the penalties for those who commit terrorist crimes. Before the PATRIOT Act, for example, terrorists could not be charged with conspiracies to commit the underlying offenses. In such cases, the government could only bring prosecutions under the general federal conspiracy provision, which carries a maximum penalty of only five years in prison.
This is vastly different from Indiana’s penal code, under which a co-conspirator is equally culpable and subject to the same penalties as the person who pulled the trigger, robbed the bank, sold the drugs, or broke into the house. The federal laws were amended several years ago in the case of conspiracies to commit traditional crimes, but no one was thinking about terrorism at the time. The PATRIOT Act closed this loophole in the law, as well as others -- such as creating a punishment for bioterrorism and attacks on mass transit systems.
Simply put, our success in preventing another catastrophic attack on the American homeland in the past two years would have been much more difficult, if not impossible, without the USA PATRIOT Act. The authorities provided in this landmark legislation have substantially enhanced our ability to prevent, investigate, and prosecute acts of terror and protect Americans from terrorist acts both at home and abroad.
Lawyers and judges are born skeptics– so if you remain skeptical, I invite you to visit the Web site that walks you through the PATRIOT Act, section by section, and satisfy yourselves on the facts. That Web site address is: www.lifeandliberty.gov.
I’d like to tell you as well about two other initiatives through which the Justice Department is working to protect Americans. A milestone DNA initiative, for which we at the Office of Justice Programs are primarily responsible, may prove to be one of the most significant advances in criminal justice over several decades.
As you know, DNA technology has forever changed the way police investigate cases, collect crime scene evidence, and identify suspects. Better use of DNA evidence holds tremendous potential for increasing our capacity to solve crimes, convict the guilty, exonerate the innocent, and protect the public.
Just last April, Seattle police solved a 20-year-old murder case using the ruse of promised money to lure a suspect into sending them a return envelope that allowed them to obtain DNA from the suspect’s saliva on the seal. DNA also led to the arrest of a suspected serial killer in Louisiana. DNA taken from the body of a murdered 26-year-old Louisiana State University student matched the DNA taken from this man, who was a suspect in an unrelated case. This DNA evidence also linked the murder suspect to the deaths of four other Louisiana women.
Unfortunately, the power of DNA technology to advance justice has been limited due to inadequate laboratory capacity, outdated information systems, overwhelming caseloads, and a lack of training. As a result, there are hundreds of thousands of DNA samples awaiting analysis in crime labs across the country, countless victims awaiting resolution to their cases, and countless offenders who are not being held accountable for their crimes.
To address these problems, and to demonstrate the tremendous potential DNA evidence has for solving crimes, in March, President Bush launched an unprecedented federal initiative to advance the cause of justice through the use of DNA technology.
The President has proposed spending a total of more than $1 billion over the next 5 years in federal support for this effort, and we have asked Congress for the first installment of $232 million in our 2004 budget request. Through the President’s DNA initiative, if we can get the Congressional appropriation the President has requested, we’ll provide resources to help law enforcement and other criminal justice practitioners more effectively collect, use, and analyze DNA evidence to solve cases.
Next year, for example, we intend to provide almost $93 million to help eliminate the substantial backlog of DNA samples for the most serious violent offenses, as well as the backlog of convicted offender samples that have not yet been tested. We estimate that there are currently hundreds of thousands of crime scene samples in rape and homicide cases, alone, awaiting
analysis, and additional hundreds of thousands of convicted offenders whose samples have not yet been entered into the DNA database.
We’ll use another $60 million next year to enhance the ability of crime labs to analyze DNA evidence. Currently, there are 130 public crime labs capable of DNA analysis. But fewer than 10 percent have the automated facilities needed to conduct efficient and accurate tests. Our funds will help these labs employ technology – such as bar-coding, robotics, and advanced computer support – to analyze more samples and to help solve more crimes.
We’ll also use about $10 million to expand the capacity of CODIS – the national DNA database. This effort will improve state and local law enforcement’s access to the system and reduce search time from hours to microseconds. We’ve already doubled the number of crime scene samples matched to convicted offender samples in CODIS – from 2,200 in 2001 to almost 5,000 last year. As the Attorney General said in announcing these results, “This translates into thousands of crimes solved, rapists and murderers caught, and fewer victims.” Under the President’s initiative, we’ll significantly expand the capacity of CODIS from its current 1.7 million DNA profiles to 50 million.
The President’s DNA initiative also will support training to help law enforcement and other criminal justice professionals better understand the full potential of DNA testing to solve cases. The importance of this training was illustrated recently when an alert police officer in Prince George’s County, Maryland, used DNA evidence to identify a suspect wanted in a string of sexual assaults.
The officer stopped and questioned a man who matched a description of the rapist. After the suspect left, the officer bent down to pick up a napkin the man had used to blow his nose. DNA testing matched the evidence on the napkin to the DNA evidence recovered from the rape victims. Just last month, this man pled guilty to three counts of first-degree rape. And no one knows how many potential victims have been spared as a result of that officer’s quick thinking.
In another case in Texas, an investigator solved the rape of a local college student by requesting DNA testing on the phone cord used to choke the woman. The perpetrator had worn gloves, and the cord bore no fingerprints. However, DNA testing revealed saliva on the phone cord. Evidently, the rapist had held the cord in his mouth while subduing the victim. The DNA evidence from the cord solved not only that case, but also a similar sexual assault in another city.
Without these officers’ knowledge of the crime-solving possibilities of DNA evidence, these cases might never have been solved, the perpetrators might still be free, and neighborhood residents might still be living in fear. We’ve allocated $17.5 million next year to support training for law enforcement and other criminal justice practitioners, including judges, in the proper collection and use of DNA evidence. This will include proper maintenance of samples and record-keeping, to avoid issues related to shoddy lab work, and increase the confidence of the courts in the integrity of the evidence being submitted.
All of this will benefit the court system, not only in the area of efficiency, but also in its capability for properly and effectively administering justice. Potential suspects who are innocent can be excluded from suspicion early in a case, and resources can be concentrated quickly on putting together a case against the person who can conclusively be proven to have committed the crime.
As you can imagine, this not only ensures a just result, but is also likely to conserve scarce court resources as offenders whose guilt is beyond doubt spare the system the expense and time commitment of a lengthy jury trial. And the President’s initiative specifically provides funds for DNA testing to exonerate those who may have been wrongly convicted in the past.
Another aspect of the DNA initiative is to stimulate research and development on DNA testing. For example, we’re working to develop faster, less expensive methods of conducting DNA tests that will speed the testing of samples in forensic labs across the country. Our National Institute of Justice has developed a prototype microchip that will permit scientists to analyze 8 DNA samples simultaneously in under 20 minutes. We’ll spend almost $25 million next year to support further research and development of DNA technology.
There’s one final component of the DNA initiative I want to mention. And it’s an important one. In order to make full use of the power of DNA technology, DNA samples should be collected from all convicted felons and added to the national DNA database.
Currently, only 29 states require DNA samples from all convicted felons. These states have much higher match rates of DNA evidence to profiles of convicted offenders in DNA databases – than other states that have more limited requirements. For example, Virginia, which has been collecting DNA from all convicted felons since 1990, has a convicted offender database of more than 189,000 DNA profiles. As a result, they averaged 37 matches per month in 2002. Of the 1,070 matches Virginia had as of last March, approximately 82 percent would have been missed if its database were limited to only violent offenders, instead of all convicted felons.
Florida has had a similar experience. The fact is, many of the offenders matched with violent crime scene evidence are found to have only a burglary conviction on their record. So we need to make sure that all felony offenders are tested. I know that Indiana requires testing, but only as to burglars and violent offenders who are admitted to the Department of Correction. I strongly urge that Indiana amend its laws to require collection of DNA from all persons convicted of felonies, whether or not they are committed to the custody of DOC.
There’s one other major public safety initiative I’d like to discuss. We created and funded the Serious and Violent Offender Reentry Initiative last year, to address the risk to public safety posed by criminal offenders who return to their communities following incarceration.
As you know, many offenders are released from prison with little more than $50.00 and a bus ticket. Many of these offenders also have no job or life skills, and have substance abuse or mental health problems. And in today’s pressing budget environment, legislatures – including Indiana’s – are desperately trying to reduce correctional budgets by devising early-release schemes – so we’ll see even more than today’s annual 600,000 releasees.
With few resources, few skills, substance abuse, mental health problems, and minimal post-release supervision, it’s no wonder that these returning offenders soon turn back to what they know – a life of crime. Without forceful and sustained community effort, released offenders – and particularly violent offenders – will certainly remain a serious threat to their communities.
Our Reentry Initiative is an unprecedented collaborative approach to better supervise and safely reintegrate returning offenders into their communities. It’s supported by my agency, the Office of Justice Programs, in partnership with 11 other federal agencies, including the Departments of Labor, Health and Human Services, Education, Commerce, Housing and Urban Development, and Veterans Affairs.
This federal partnership, in turn, supports collaborative efforts in each state, and includes a range of services for returning offenders, such as education, job training and placement, life skills training, substance abuse treatment, and housing assistance. At the same time, strict monitoring takes place, including electronic monitoring and periodic drug testing.
Make no mistake: we at the Department of Justice are engaged in this effort as part of our primary mission – to assist you in protecting the public from dangerous predators. This population is the greatest threat to public safety in your communities, recidivating at a rate of 67% in the first 3 years following their release from prison, and over 90% within 5 years of release.
Through this initiative, we’re funding 100 adult and juvenile re-entry projects throughout the country, bringing together disciplines that are not accustomed to working together, but all of which have a significant role to play in an offender’s rehabilitation -- and none of which can be successful alone in dealing with this difficult population.
While most of these projects are just getting off the ground, some forward-thinking communities have programs already at work. For example, the controlled reentry program in Fort Wayne is a national model whose efforts have already made an impact. During the first 22 months of its operation, only 12.5 percent of the 200 violent offenders who came through the program committed another offense, compared to a 67 percent rate before the program.
This dramatic drop in reoffending has paid off in two ways. The community has been saved the costs associated with investigating, prosecuting, and trying these new offenses, and – the real payoff – its citizens are safer. Fewer crimes mean fewer victims. And Fort Wayne accomplished this by leveraging already available resources at the local level – not with additional federal grant money.
I congratulate Judge Surbeck, who presides over Fort Wayne’s adult re-entry court, and the entire court system in Allen County for its creative approach to this challenging crime problem – and I encourage you to learn from Allen County how they have managed to be so effective.
We intend that all of these projects will build the nation’s knowledge of what works best regarding the safe reintegration of serious and violent offenders into communities. As we measure the success of the customized efforts developed in various parts of the country, we can determine what combinations of interventions work best to turn former felons into productive members of society, thereby protecting our citizens from would-be predators.
Through these and other initiatives, the Department of Justice is working to prevent terrorism and protect our communities from crime. As we prepare to commemorate the second anniversary of the September 11, 2001 terrorist attack on America, it is important that we remember that, as Attorney General Ashcroft has pointed out, “the first responsibility of government is to provide the security that preserves the lives and liberty of the people.”
I look forward to continuing to work with you, and other members of our nation’s judiciary, to ensure liberty and justice for Hoosiers and for all Americans.
I know that your burden is great, your caseloads are high, and you struggle daily with the sometimes seemingly overwhelming task of doing justice. As a proud resident of this great state, I admire you; I commend you for your dedication to the preservation of a civilized society; and, on behalf of my fellow Hoosiers, I thank you for all you do, every day, to make Indiana a better place to live.
Thank you very much for the honor of addressing you today.