July 7, 2010

VI. Untested Rape Kits in Illinois Crime Labs

In my experience, I have seen the fact of delays at the crime lab deter police even more from sending in a rape kit for testing. They want the case resolved, and if they know the rape kit evidence won’t come back for a year, they would rather not wait to close a case for that long. I have also seen police use the fact of delays as an excuse to my clients who want their rape kit tested. They tell them: “Even if we send in the kit, you won’t get a result back for a year, so why not just try putting the rape behind you instead?”
—Rape treatment provider, southwest Illinois[91]

Once a police officer has requested that a rape case be sent for testing, it will be sent to one of the eight Forensic Biology/DNA casework laboratories operated by the Illinois State Police and placed in a queue for testing.[92]

 While the vast majority of untested rape kits in Illinois currently reside in police storage facilities, a second backlog exists in police crime lab facilities where rape kits are submitted for DNA analysis, but wait, often for a very long time, to be tested. These delays have significant impacts on the criminal case, and delay justice for rape victims. As one law enforcement official put it, “I have seen rape cases delayed by over a year while we waited for a test result. This means we lose momentum in the case—witnesses move and can’t be tracked down, the trial start date has to be continually pushed back, and sometimes witnesses grow weary of the toll the case is taking on them and start to wonder if they want to be part of it anymore.”[93]

Rape kit testing delays appear to be caused primarily by a lack of capacity at the state crime labs to handle each DNA request they receive, and secondarily by the state’s ineffectiveness in addressing the needs of the laboratory system. The 2009 Management and Program Audit of the Illinois State Police’s Division of Forensic Services (“Auditor General Report”), found that the number of total backlogged cases (including all types of cases and forensic analyses) at the state’s crime labs increased more than 200 percent from 2002 to 2007, from 3,426 to 10,387 cases.[94] During that same time period, the number of forensic scientists at the lab actually declined by 3 percent.[95]

Illinois is not alone in its struggle with crime lab backlogs. Crime labs across the country are inundated with DNA testing requests. The most recent federal census of publicly funded crime laboratories—released in 2008 using data collected in 2005—shows that during 2005, public crime labs saw their DNA backlog double from the beginning to the end of the year, and that public crime labs across the country would need to increase their DNA staff by 73 percent to keep up with DNA testing needs and requests.[96]

While crime labs in Illinois have backlogs in nearly every kind of criminal case, the backlog of evidence in rape cases is particularly pronounced with data showing that the crime lab cannot keep up with current rape kit testing demand, much less the increase in demand that will be caused by the 2010 Sexual Assault Evidence Submission Act. Once the Illinois State Police submit their rape kit reduction plan as required by the 2010 law,[97] it is imperative that legislators approve the funding necessary to address the lab’s increased capacity needs.

According to data the Illinois State Police provided to Human Rights Watch, as of February 2009 there were approximately 622 Forensic Biology cases (that is, all offenses including sexual assault) waiting for testing in the state crime labs.[98] In each year from 2001 through 2008, the ISP crime labs received anywhere from 2800 to 4400 rape cases, or an average of 230 to 360 rape cases per month.[99] According to the ISP, they have the capacity to analyze about 277 cases per month, which means every month up to 83 cases may be added to the testing backlog.[100] This struggle to keep up with testing is occurring even though the Illinois State Police crime labs may not be receiving the vast majority of kits in law enforcement custody.

The good news is that the Illinois State Police have made progress in reducing the overall backlog of cases at their crime laboratories. As of April 30, 2010, the ISP laboratory system reported a total statewide case backlog of 6,197 cases, down significantly from the 10,387 cases cited in the 2009 Illinois Auditor General Report. These backlogs include all types of cases, not just sexual assault cases. The average age of DNA cases worked in April 2010 was 71.2 days. These backlogs are being reduced despite increased case submissions of 5,800 Forensic Biology cases and 4,900 total DNA cases per year. The elimination of the backlog has happened in part because of increased staffing at the labs, increased use of overtime for employees, and the implementation of efficiency measures.[101]

Nonetheless, as far as Human Rights Watch can tell, the state does not track the average amount of time it takes for a rape kit to be tested, from the moment a kit is sent to the lab to when the law enforcement receive the test results. Law enforcement officials often describe waiting a year for test results, and some reported delays of up to two years.

These delays can take a toll on all stages of a criminal sexual assault case. In a survey of local police departments conducted in 2007, 46 percent thought that the Illinois State Police crime lab’s lack of timeliness “negatively impacted a case in the past five years.”[102] In the worst instances, the results were so delayed that the case could not be pursued. For example, one law enforcement official recounted, “I have received lab reports in which a suspect DNA profile was identified after the statute of limitations passed. It does little good to identify a suspect after the period which prosecution might begin.”[103] In other interviews conducted by Human Rights Watch, law enforcement praised the Illinois State Police crime laboratories. As one officer told us, “They do their best to meet the testing deadlines I request of them, and if they can’t, they do an excellent job of communicating the situation and helping me understand the reasons for any delays. But for the most part, there are not delays of the kind that jeopardize my investigations.”[104]

Some law enforcement officials do not want to send—and some state’s attorneys do not want to assess—a sexual assault case for felony charges review until they have the crime lab results back. Law enforcement agencies are also reluctant to make an arrest or charging decision until the DNA results are back. This can delay movement in the case by months, and even years. As one sheriff noted in the Auditor General Report, “By the time almost any analysis has been completed and we received the report the criminal case has turned into a cold case. Our average [wait time for crime lab test] results from the past year is at 8 to 12 months.”[105]

Testing delays can impact the start of trial, and perhaps jeopardize legal proceedings. According to a state’s attorney, “We have already delayed the start of [a] trial four times, as we are waiting on the [rape] kit results from the lab. The judge has threatened to declare a mistrial if there is one more delay, and I am worried that the testing delay is going to derail our case.”[106]

While the lack of crime lab capacity is a significant cause of rape kit testing delays, the ISP’s ability to manage its crime laboratories also contributes to the rape kit backlog. For example, the 2009 Illinois Auditor General Report found, among other things, that the ISP let $19.3 million in state funds for forensic testing and $1.3 million in 21 federal grants lapse between fiscal year 2002 through fiscal year 2007; specifically, of $1.5 million in grants received through 2008 for the explicit purpose of testing sexual assault evidence, the Auditor General concluded that the ISP failed to use more than $246,000, while the Illinois State Police disagreed and stated that they only failed to use $48,800.[107] The audit also found that the ISP transferred $6 million of those funds to other non-forensic related purposes. In the same time period, the number of backlogged cases at the ISP increased over 200 percent. Additionally, the Auditor General Report found that the “ISP has underreported backlogged DNA cases … providing inaccurate and misleading information.”[108]

While the Auditor General Report suggests that the Illinois State Police has struggled to manage its crime labs effectively, principals with the ISP told Human Rights Watch the department disagreed with many of the points raised in the report. They have taken steps to improve tracking of grant money and have increased transparency regarding the nature and scope of their DNA backlogs.[109]

Enhancing the ISP crime lab capacity for more timely and expansive rape kit testing will require more state and federal funding. The 2010 Sexual Assault Evidence Submission Act requires that the ISP submit a plan to document how it will eliminate the rape kit backlog and handle the influx of rape kits sent to them.[110] Once the plan is submitted, the ISP should advocate for these resources, and the legislature should approve the funding necessary to eliminate the rape kit backlog and delays in testing new kits. Illinois is experiencing a significant financial crisis, but public safety policies that will help apprehend violent offenders and prevent future rapes are a necessary investment and a core government responsibility.

Achieving this goal will require not just political will to appropriate the necessary funding, but oversight to ensure that all funds available are used effectively and efficiently toward the testing of rape kits. In order to make sure that all money appropriated to the ISP crime labs for rape kit testing is spent correctly, the legislature should require the ISP crime labs to submit a detailed plan for how they will eliminate their rape kit backlog and increase testing capabilities, and a legislative task force should exercise oversight over their progress.

If the legislature does not provide the Illinois State Police with the resources necessary to test every booked rape kit, then the state must establish uniform, objective, statutory procedures by which rape kit testing should proceed in the state. The law should make clear that a rape case cannot be closed by the police or rejected by the state’s attorney unless any rape kit evidence connected to the case is tested. The procedures should allow law enforcement discretion not to test a rape kit if the case will proceed regardless of the kit test result. This would ensure that law enforcement take into account a certain amount of investigative information before making a final decision on a rape case.

[91] Human Rights Watch telephone interview with rape victim advocate, southwestern Illinois, May 12, 2009.

[92] Human Rights Watch telephone interview with principals at the Illinois State Police, Springfield, IL, June, 19, 2009.

[93] Human Rights Watch telephone interview with law enforcement official, Naperville, IL, January 11, 2010.

[94] Illinois Auditor General, “Management and Program Audit of the Illinois State Police’s Division of Forensic Services” (“Illinois Auditor General report”), March 2009, http://www.auditor.illinois.gov/Audit-Reports/Performance-Special-Multi/Performance-Audits/09-ISP-Labs-Mgmt-Pgm-Full.pdf (accessed May 14, 2010), p. i.

[95] Ibid.

[96] Matthew R. Durose, “Census of Publicly Funded Crime Laboratories, 2005,” Office of Justice Programs, Department of Justice, July 2008, http://bjs.ojp.usdoj.gov/content/pub/pdf/cpffcl05.pdf (accessed June 23, 2010), pp. 1-2.

[97] Sexual Assault Evidence Submission Act of 2010, http://www.ilga.gov/legislation/96/SB/PDF/09600SB3269lv.pdf.

[98] Illinois State Police FOIA response to Human Rights Watch, April 1, 2009.

[99] Ibid.

[100] Ibid.

[101] Human Rights Watch e-mail from Illinois State Police, June 8, 2010.

[102] Illinois Auditor General Report, http://www.auditor.illinois.gov/Audit-Reports/Performance-Special-Multi/Performance-Audits/09-ISP-Labs-Mgmt-Pgm-Full.pdf, p. viii. (bold in original).

[103] Ibid., p. 61.

[104] Human Rights Watch telephone interview with law enforcement officer, June 10, 2009.

[105] Illinois Auditor General Report, http://www.auditor.illinois.gov/Audit-Reports/Performance-Special-Multi/Performance-Audits/09-ISP-Labs-Mgmt-Pgm-Full.pdf, p. 62.

[106] Human Rights Watch telephone interview with prosecutor, central Illinois, February 13, 2010.

[107] Illinois Auditor General Report, http://www.auditor.illinois.gov/Audit-Reports/Performance-Special-Multi/Performance-Audits/09-ISP-Labs-Mgmt-Pgm-Full.pdf, p. xix.

[108] Ibid., p. i. (bold in original).

[109] Human Rights Watch telephone interview with principals of the Illinois State Police, Springfield, IL, June 19, 2009.

[110] Sexual Assault Evidence Submission Act of 2010, http://www.ilga.gov/legislation/96/SB/PDF/09600SB3269lv.pdf.