Investigative Outcomes of CODIS Matches in Previously Untested Sexual Assault Kits

Abstract

A 2011 Texas statute required that police agencies submit to the state all unanalyzed sexual assault kits between 1996 and 2011. Cases where a match was made with DNA from an individual or case were returned to local agencies for additional investigation. This article examines outcomes of these cases. Consistent with other studies, we found that the ratio of arrests to all kits submitted was below 1%, and the ratio of arrests to Combined DNA Index System (CODIS) hits was 5.5%. A cost analysis concluded that the cost per court filing was US$132,000. We argue that the small number of arrests was partially due to the age of the cases, based on 8- to 23-year-old crime reports. We further contend that the program could have produced better results if the state had provided funding more quickly for testing and investigations.

Keywords

policy implications violence against women sexual assault

Introduction

In the early 2000s, The United States Department of Justice began providing funding to assess the number of criminal cases with unsubmitted forensic evidence in U.S. police departments. The investigators found that “[t]he backlog of unsolved rapes and homicides in the U.S. is massive,” (Lovrich et al., 2004, p. 2) with approximately 48,000 homicides and 155,000 rapes with DNA evidence sitting unsubmitted (Pratt et al., 2006). Since that time, national funds have been earmarked to assist with the testing of previously unsubmitted sexual assault kits (SAKs), and state and local laws have been enacted to clear the backlogs and ensure universal testing of these kits.

A number of factors have contributed to low submission rates of SAKs, as research has found that some police investigators perceive no benefit to submitting some SAKs for DNA analysis. These include cases in which the police believed the victim was an unreliable or uncooperative witness, could not be located, the suspect claimed the sexual contact was consensual, or the suspect had already taken a plea agreement (Campbell & Fehler-Cabral, 2018; Campbell, Fehler-Cabral, et al., 2015; Campbell, Shaw, & Fehler-Cabral, 2015). In addition to prosecutorial challenges, a lack of resources (e.g., money, staff) has also been cited as a reason for not testing all SAKs (e.g., Campbell & Fehler-Cabral, 2018; Lovrich et al., 2004; Strom & Hickman, 2010).

In response to the lack of universal testing of SAKs, stakeholders argue that previously unsubmitted SAKs may still hold evidentiary value. More specifically, if now tested, they may lead to the arrest and prosecution of offenders, and especially those offenders who have committed multiple crimes (Lovell et al., 2020). Comparing samples from these unsubmitted kits to samples in state and federal DNA databases would expose such offenders who would otherwise have remained hidden. Testing and upload of forensic evidence to the Combined DNA Index System (CODIS), a computer system that links DNA databases containing offender profiles across the nation (United States Department of Justice, 2002), was expected to assist in the identification of serial sexual offenders, bring previously unidentified offenders to justice, and exonerate innocent suspects (Campbell, Feeney, et al., 2017; Lovell, Yang, & Klingenstein, 2018).

Recent research has begun to examine the benefits as well as the costs of submitting previously unsubmitted SAKs for DNA analysis. This line of empirical inquiry has primarily focused on the impact these unsubmitted SAKs have had on criminal justice outcomes within a singular, metropolitan area (Campbell, Shaw, et al., 2015; Lovell, Luminais, et al., 2018; Wells et al., 2016). To our knowledge, no research to date has examined the impact a statewide, universal testing mandate has had concurrently across multiple metropolitan areas. As a result, the present study capitalizes on a 2011 Texas law that, for the first time, required universal submission of SAKs to accredited crime labs, as well as identification and DNA analysis of previously unsubmitted kits in the possession of local law enforcement agencies. Because the statute affected the entire state, the numbers of unsubmitted SAKs identified was large (more than 18,000), offering an unusual opportunity to examine the benefits and costs of DNA analysis of previously unsubmitted SAKs in a large sample of cases.

Review of the Relevant Literature

Estimates have placed the number of unsubmitted SAKs to be more than 200,000 (Campbell, Feeney, et al., 2017; Lovrich et al., 2004; Strom & Hickman, 2010). In 2015, the Bureau of Justice Assistance (BJA) launched the Sexual Assault Kit Initiative (SAKI) to provide financial assistance and technical support to jurisdictions addressing the problem of unsubmitted SAKs (BJA, n.d.). Overall, the SAKI (2019) assisted in inventorying nearly 65,000 kits as of December 2018. Of those inventoried, 47,216 were sent for testing, and 46,907 were tested to completion. This testing resulted in close to 15,000 DNA profiles being uploaded into CODIS and just more than 7,000 CODIS hits, which led to 900 charges filed, representing 2% of the kits tested or 12% of CODIS hits. There have been 104 convictions and 444 plea agreements in the 3 years the program has been in operation (SAKI, 2019).

The National Institute of Justice funded three large-scale action research projects (Wayne County Michigan, Cuyahoga County Ohio, and Houston, Texas), that studied the situation, supported the analysis of unsubmitted SAKs, and assessed the results. The Detroit Sexual Assault Kit Action Research Project identified 8,717 SAKs in police custody in Wayne County, Michigan, that had never been submitted for testing (Campbell, Shaw, et al., 2015; Campbell, Fehler-Cabral et al., 2017). Researchers with the Cuyahoga County SAK Task Force identified nearly 5,000 unsubmitted SAKs, and the Houston Action Research Project found 6,571 cases with associated SAKs sitting in police storage (Lovell et al., 2018; Wells et al., 2016).

In Detroit, 1,595 kits were randomly selected for DNA testing; of those, 785 (49%) yielded DNA evidence that was eligible for CODIS upload. Nearly 60% of uploads (29% of the total sample; n = 455) resulted in a CODIS hit (Campbell, Fehler-Cabral, et al., 2015). Upload and hit rates were similar in Houston and Cuyahoga County. Of 491 kits screened in Houston, 213 (43%) were uploaded into CODIS. Matches were obtained in 49% (n = 104) of uploaded cases (21% of the total sample; Wells et al., 2016). Nearly 5,000 kits were tested in Cuyahoga County (n = 4,966) resulting in 2,934 DNA profiles uploaded into CODIS (59%) and 1,935 DNA hits (66% of uploads; 39% of total sample; Lovell et al., 2018). All told across these sites, approximately 50% or more of DNA profile uploads in the three samples yielded hits to profiles already in CODIS (Campbell, Fehler-Cabral, et al., 2015; Lovell et al., 2018; Wells et al., 2016).¹

CODIS hits take two forms: uploaded DNA profiles can either match to a known individual (also known as an “offender hit”) or to a sample in a case with an unknown individual (a “forensic hit”). Hits to an offender that identify an individual not previously linked to the case are the most fruitful type of matches because they may lead to an imminent arrest. However, case to case hits are also considered valuable because they uncover the existence of serial offenders who have been linked to more than one sexual assault incident. Approximately 20% of hits in Cuyahoga County and 28% of hits in Detroit were to other sexual assault cases (Campbell, Fehler-Cabral, et al., 2015; Lovell et al., 2018). In cold case work in San Francisco and New Orleans, 4% and 10% of hits were to other sexual assaults, respectively (Gabriel et al., 2010; Nelson, 2013). Nationally, the District Attorney of New York (DANY) grants have produced 640 case-to-case hits (Office of Manhattan District Attorney, 2019).

Investigative Outcomes of Cold Case CODIS Matches

An obvious question in the process of submitting previously unsubmitted SAKs for DNA analysis is whether doing so results in the arrest of a significant number of offenders who would otherwise have gone undetected and, if so, what is the fiscal cost of those arrests? A number of studies have addressed the first part of that question (see Table 1). At one extreme, Davis and Wells (2019) reported that 57% of a sample of 97 Denver CODIS hits among previously unsubmitted kits resulted in an arrest and court filing. Gabriel and colleagues (2010), examining cold cases from the San Francisco area, noted a 30% conviction rate based off 110 CODIS hits. Findings from most of the other studies displayed in the table fell within a much narrower and lower range. Lovell, Luminais, and colleagues (2018) analyzed outcomes of nearly 5,000 unsubmitted SAKs identified from the Cuyahoga County project that tested 4,966 kits, uploaded 2,934 profiles, and resulted in 1,935 CODIS hits. This work led to 214 convictions (approximately 4% of the 4,966 kits tested). The DANY-funded projects together reported that 2% of CODIS hit cases ended in a prosecution. Other studies were similar: Nelson (2013) reported a 7% overall conviction rate; Wells and colleagues (2016) reported a 2% prosecution rate; Multnomah County, Oregon, reported a 1% conviction rate; and Peterson and colleagues reported that no new arrests were made out of 347 CODIS matches. Some media reports also suggest criminal justice system outcomes, such as arrests and prosecutions, are not common after kits are tested (see Flores, 2020).

Table 1.

Investigative Outcomes of CODIS Matches From Previously Untested Kits.

Study	Context^a	CODIS	Serial Rapists	Criminal Justice Outcomes^b
Campbell, Fehler-Cabral, et al. (2015)	Detroit, Michigan N = 8,717 (as of November 2009) n = 1,595 randomly selected cases	Uploads = 785 Hits = 455	127	Not reported
Davis & Wells (2019)	Denver, Colorado N = 4,200 cold sexual assault and homicide cases, 1,200 with testable DNA n = 600 high priority cases	Uploads = Not reported Hits = 97	Not reported	Arrests and court filings in 57% of cases, convictions in 92% of filed cases
Lovell, Luminais, et al. (2018)	Cuyahoga Co., Ohio n = 4,966 kits	Uploads = 2,934 Hits = 1,935	1,429	623 indictments (12.5%), 214 convfictions (4%)
Gabriel et al. (2010)	San Francisco, California n = 198 cold cases tested, 110 sexual assaults	Hits = 110	11	Convictions in 30% of cases, 50% remain open and active
Manhattan County (NY) District Attorney (2019)	32 Jurisdictions n = 55,252 backlogged kits tested 2015 to 2018	Uploads = 18,803 Hits = 9,228	1,570	186 arrests (0.34%), 165 (0.29%) prosecutions, 64 (0.12%) convictions
Multnomah County (OR) District Attorney (2019)	Oregon N = 2,913 n = 2,913	Uploads = 882 Hits = 448	Not reported	6 (0.21%) arrests, 7 (0.24%) prosecutions, 6 (0.21%) convictions
Nelson (2013)	New Orleans, Louisiana N = 830 untested kits submitted prior to January 1, 2011	Hits = 83	Not reported	24 (2.89%) arrests, 6 (0.72%) convictions
Peterson et al. (2012)	Los Angeles City & Co., California N = 10,895 as of November 2008 n = 371 randomly selected backlogged cases committed 1982 to 2009, 255 of which were tested for DNA	Uploads = 141 Hits not reported	Not reported	147 arrest confirmations; no new arrests made. Charges filed in 1 (0.39%) case after testing, 2 (0.78%) convictions resulted
Wells et al. (2016)	Houston, Texas N = 6,571 untested kits (as of March 2012) n = 491 cases committed prior to 2010 stratified by case clearance status	Uploads = 213 Hits = 104	Not reported	1 (0.20%) prosecution; 7 (1.43%) under investigation

N denotes total number of cases identified, n denotes tested sample size. ^bValues presented in parentheses were calculated as the percentage of kits tested by the authors of this study. CODIS = Combined DNA Index System.

What accounts for the wide range in court filing/conviction rates from 57% (Davis & Wells, 2019) to 0% (Peterson et al., 2012)? Much of the reason for variation between samples is likely due to a double selection bias. The first is the law enforcement agency’s policy and practices about kit testing at the time of the original crime report: In agencies that test a higher percentage of new cases, the pool of unsubmitted kits will likely contain fewer prosecutable cases. The second selection bias comes when the decision is made about which unsubmitted kits are to be sent for laboratory analysis (see Lovell, Luminais, et al., 2018). Some sites have submitted all previously unsubmitted kits for analysis whereas others used some type of prioritization system (such as cases still within the statute of limitations (SOL) or those likely to have DNA with probative value) to select the previously unsubmitted cases to test. In other words, the potential for prosecutorial outcomes likely varied depending on testing criteria deployed across locations. For example, Davis and Wells (2019) report that police in Denver identified 1,200 cases with testable DNA samples. The authors note that,

These cases were then prioritized based on whether the DNA evidence would most likely be probative. Higher priority cases were identified as being cases with either very young or very old victims, cases with extremely violent offenders, homicide cases involving direct contact between victim and perpetrator, cases occurring in inside locations, cases where the sexual assault or homicide was part of a robbery or burglary, and cases in which the commonly-used consent defense could be most easily overcome (i.e., those not involving prostitutes and/or drug users). (p. 6)

Finally, in some of the reported research, investigations and prosecutions were still ongoing, so there likely will be additional arrests and convictions that result.

There have been many reasons cited for instances in which CODIS suspect hits occur, yet no arrest or conviction results. Many of the cases tested in these projects were beyond the SOL. For example, the SOL was the most frequent reason cases were closed (44.2%) following a CODIS hit in Houston (Lovell, Luminais, et al., 2018; Wells et al., 2016). Other oft-cited reasons for closing cases following a CODIS hit were related to the victim: either the police were unable to locate or contact a victim (12.5% of cases in Houston, 7% of cases in Denver), or the victim was deemed uncooperative or unreliable (12.5% of cases in Houston, 36% of cases in Denver; Davis & Wells, 2019; Wells et al., 2016). The lapse in time from initial investigations to follow-up actions by investigators may also be a factor, as Campbell and colleagues (2018) noted that victim interest in prosecution declined with time since the complaint was made.

Cost Considerations

The testing of SAKs is a labor intensive and financially expensive venture, where costs have been approximated between US$800 and US$1,500 (Leahy, 2002). Given the expense associated with testing SAKs, research has examined the cost and benefits associated with testing these forensic samples. For example, Davis and Wells (2019) estimated that each conviction cost US$16,000 in testing, investigation, and criminal justice costs. In a five-city study of DNA analysis and investigations of property crimes, Roman and colleagues (2009) uncovered substantial variation across sites. On average, the added cost due to DNA processing was US$14,000 per arrest and US$6,200 per case accepted for prosecution (Note, however, that these were current cases, not cold case investigations.) Scholars have argued, however, that the financial cost to the criminal justice system pales in comparison to the price (physically, mentally, emotionally, and monetarily) shouldered by sexual assault victims (Miller et al., 1996).

Singer et al. (2016) conducted a cost-benefit analysis that compared the cost of DNA analysis and investigation of cases with SAKs that had been previously unsubmitted against the costs incurred by victims of sexual assaults. The authors estimated the costs of testing kits and investigating the cases that generated CODIS hits at US$2,205 per case against US$50,942 in averted costs for each offender convicted. Making the assumption that every four convictions saved an additional sexual assault, the authors claimed that DNA analysis of unsubmitted SAKs saved the community US$39 million. The estimate is based on 947 expected convictions rather than the 124 documented convictions at the time of their cost-benefit analysis.²

Wang and Wein (2018) conducted a cost-benefit analysis using a sample of unsubmitted SAKs in Detroit and costs from Los Angeles. They estimated it costs US$1,641, on average, to test a kit and investigate a CODIS hit, which they claimed prevents future sexual assault-related costs of US$133,484 (based on costs to the victim and citizen willingness-to-pay to prevent future sexual assaults; DeLisi et al., 2010). The estimate did not include costs to the justice system or loss of productivity on the part of the offender. These results, in addition to a separate cost-benefit analysis of only non-stranger cases, led them to conclude that testing all unsubmitted kits (i.e., “forklift approach”) is cost-effective.

Universal Testing of SAKs in Texas: State Bill 1636

Texas was one of the first states to enact legislation mandating universal testing of SAKs. Authored by former state senator Wendy Davis in 2011, Texas Senate Bill 1636 represented a fundamental change for sexual assault victims in the state. The intention was for victims to no longer wonder if forensic evidence was being evaluated and used to its maximum potential. Advocates of the bill anticipated that all previously unsubmitted kits in the state would be analyzed and there would be an increase in arrests, prosecutions, and convictions of sex offenders. They believed that more serial rapists would be identified as the number of entries in the DNA database of sexual assault cases grew. Such developments were expected to give victims greater confidence in coming forward and telling their stories to hospital staff, police, and prosecutors.

One of the requirements of the Texas law was that all unsubmitted SAKs (where the SOL had not been reached at the time the law went into effect) had to be submitted for laboratory DNA analysis. That encompassed cases between 1996 and August 2011 which we will refer to hereafter as “legacy” cases. The statute required law enforcement agencies across the state to report the number of SAKs which remained unsubmitted in their custody by October 15, 2011, and to submit all evidence connected to an “active criminal case” to the Department of Public Safety (DPS) or another accredited public laboratory by April 1, 2012, subject to lab capacity. DPS, in turn, was tasked with developing DNA profiles and uploading them into CODIS. To address testing expenditures, the law required DPS to report to the governor and the Texas House of Representatives about the numbers of SAKs across the state and to request the funding necessary to test all kits.

In 2013, after an audit revealed more than 18,000 unsubmitted SAKs statewide, the Texas DPS received US$10.8 million from the state for testing. The large volume of cases necessitated that DPS contract with three private labs. DPS had initially hoped to have all testing completed by the end of 2016, but issues with the private labs made it necessary to extend the time frame for completing testing through 2017.

The initial funds for the project were exhausted in 2016. However, in 2017, the Texas Legislature appropriated an additional US$4.2 million for testing, as well as US$1 million to create a statewide tracking system for all new SAKs. In 2019, an additional US$40 million was allotted for testing and additional forensic staff at DPS to catch up on DNA reviews and uploads to state and federal DNA databases (Groetzinger, 2019). As of August 2017 (the most recent data available from the DPS website), testing had been completed on virtually all of the 18,000 legacy cases, with the major exception of 1,800 Dallas cases.

Texas, with its 18,000 unsubmitted kits collected by DPS, provided an excellent opportunity to determine the value of testing old SAKs in which law enforcement agencies apparently saw insufficient merit in testing at the time of the report. The questions that we addressed in our work were these: Is there a significant number of these SAKs in which victims could be found and offenders could be arrested and prosecuted?

In a previous study of SB 1636, researchers assessed the impact of the statute on sexual assault reports, arrests, and court filings in the state and in four Texas cities. In addition, they examined the burden that the requirement to test all kits placed on crime labs, police investigators, and prosecutors (Davis et al., 2019). However, Davis and colleagues (2019) could only present a preliminary look at investigative outcomes of CODIS matches because testing was still in the early stages for several of the four cities. In the current National Institute of Justice-funded project, sexual assault units in five Texas cities were examined to determine the investigative outcomes of CODIS hits from the legacy (pre-August 2011) kits.

Method

In 2017, we coordinated with the sexual assault unit heads of municipal police agencies in Dallas, Fort Worth, Austin, Arlington, and Corpus Christi in the beginning of the project. We asked each to track what happens to CODIS matches from the 1996 to 2011 legacy unsubmitted SAKs. We tried to track at each site the number of CODIS hits among legacy cases, investigative outcomes, and—if the case did not result in arrest—the reason that it was terminated.

Because each law enforcement agency is maintaining its own unique database on dispositions of these cases, the methods and specific information collected differed across sites. Our experience working with other SAKI sites suggests this is common: Lovell, Luminais, et al. (2018) indicate, “. . . jurisdictions will likely have vastly different outcomes, processes, and resources” (p. 118). Austin has an extensive reporting system because it has had both BJS and DANY grants to facilitate testing of legacy cases. But, although that enabled us to conduct additional analyses that could not be done in other sites, Austin did not report specific reasons why CODIS hits did not proceed through the criminal justice system.

The differences in case tracking systems and data across sites presented us with a decision: Whether to report on the results as five separate case studies or to combine the data across sites that could be compared so that we could develop a picture of what was happening across the state. Although it is true that data collection processes did differ from one city to the next, there was common data available on key indicators—number of CODIS submissions, number of CODIS hits, and number of arrests. Moreover, these indicators showed a high degree of similarity across sites. Therefore, we proceeded to describe differences among the sites, but still aggregate data on the several important outcome measures.

Originally, we had hoped to track cases through arrest and prosecution. Due to the protracted testing and investigation process, however, we were only able to track through the police disposition. Consequently, we collected information on the number of CODIS hits returned to the agencies for possible further action, whether an arrest was made, and reasons investigations were terminated without arrest.

Site Descriptions

The five research sites are all major cities in Texas. They range in size from Dallas with 1.3 million residents to Fort Worth and Austin both approaching a million residents to Arlington and Corpus Christi with approximately 300,000 residents. All of the cities have major minority populations, particularly Hispanics. Corpus Christi leads in the percentage of Hispanic residents with 63%; the other cities fall between 27% and 42% Hispanic residents. African Americans make up about a quarter of the residents in Dallas, Fort Worth, and Arlington, but less than 10% in Austin and Corpus Christi. The law enforcement agencies for these cities range from 3,300 officers in the Dallas Police Department (DPD) to 445 officers in the Corpus Christi Police Department.

Dallas

The DPD was chosen to be the first law enforcement agency to supply unsubmitted kits for DNA analysis. DPD initially identified in its property room 4,130 SAKs between September 1996 and August 2011 that had not been tested. DPD was to send approximately 250 kits per month to a private DNA lab which then had 90 days to test the kits, with results sent to DPS to enter and then upload into CODIS. As time went on, the private lab became backlogged and did not have the physical space to accept any more kits from DPD. From that point, DPD only shipped kits to the lab when it indicated that it had room. The project wound down until state funds ran out in August 2017.

There were 2,332 DPD legacy kits tested as of August 2019, the date when we stopped tracking outcomes. Out of those 2,332 kits, there were 1,086 (46.6%) DNA profiles uploaded into CODIS. The remainder did not meet CODIS upload standards. DPD is looking for funds to finish testing 712 kits still in possession of the private laboratory. In addition, as of August 2019, there were approximately 1,160 legacy kits from the 1996 to 2011 time period sitting on shelves in the property room waiting to be tested. The department has maintained a database that tracks outcomes of cases where a CODIS hit was obtained.

Fort Worth

The Fort Worth Police Department created a cold case investigator position in 2012. Although the position was not created as a direct result of SB 1636, it came just in time to conduct an audit of the department’s cases with unsubmitted SAKs and later follow-up on CODIS hits. The detective identified 1,083 cases with SAKs that had not been tested; of these, 648 (59.8%) were determined to have sufficient DNA material to submit for laboratory analysis.

As CODIS hits from the legacy cases came back to the department, the cold case investigator followed up on these cases until her retirement about a year prior to August 2019. Upon her retirement, work on these cases ceased. Much later, the department appointed a new cold case investigator who continued the work. As of June 2016, Fort Worth Police Department had 144 CODIS hits returned by DPS. The department recorded dispositions of these cases in an Excel spreadsheet.

Austin

When SB 1636 became law, the Austin Police Department (APD) conducted an internal audit that identified approximately 1,700 unsubmitted sexual assault cases in its possession. There was some confusion at first whether all of the identified kits would need to be tested. As a result, APD initially informed DPS of only 407 (23.9%) kits that needed to be tested. After discussions with forensic and legal communities, APD determined that all of the identified kits needed to be tested and so notified DPS. Because by that time DPS had already allocated all available funding, APD committed to testing the remaining kits themselves using a US$2 million DANY grant.

CODIS hits were distributed to the original detectives, where possible, for follow-up. Investigative outcomes were recorded in an extensive Excel spreadsheet.

Arlington

The Arlington Police Department was late to submit unsubmitted kits for laboratory analysis because it initially interpreted SB 1636 as only requiring police department screening of SAKs, not necessarily laboratory testing. Upon advice from the Tarrant County District Attorney’s Office, the department ultimately identified 395 sexual assault cases with unsubmitted DNA from 1996 to 2011. Laboratory testing of all SAKs have now been completed. Out of the 395 kits, 308 (78.0%) were determined to be CODIS eligible. As of August 2019, the sergeant over the sexual assault unit had reviewed approximately one third of the returned CODIS hit cases. The department does not maintain a searchable database of investigative outcomes for these cases, but does have a text record of work done and outcomes for each case investigated.

Corpus Christi

Corpus Christi Police Department sent approximately 700 kits to be tested to a local DPS crime lab at the rate of 20 to 30 kits every other week. CODIS hits are reviewed by the head of the sexual assault unit and then passed to one of 10 investigators who work on sexual violence cases as well as other major crimes. Cold cases go back to the original investigator if the investigator is still on the force. The testing process in Corpus Christi remains incomplete. The department does not maintain a database of outcomes or reasons for terminations of investigations without an arrest.

Results

DPS provided us results of their testing process to date at each of the state DNA labs. Table 2 is a sample from the data DPS provided, showing results from state crime labs. The first two columns in Table 2 represent samples uploaded to the state and national DNA databases, respectively. Arrestee and conviction matches represent matches made to offenders already arrested and/or convicted of the crime that generated the DNA sample. The most interesting columns are (a) offender hits in which a match was obtained between an offender whose DNA was extracted in the current case and a DNA profile from an unsolved case in the database and (b) legal index hits in which a DNA profile taken under a judicial order matched a DNA profile from an unsolved case in CODIS. These categories, comprising 34% of profiles uploaded to the state CODIS database, are ones in which a suspect in the current case is linked to additional sexual assaults or other crimes. Finally, forensic hits represent case to case matches—indicating that an offender whose identity is not yet known in the current case is linked to at least one other unsolved case in the database. This category comprised 5% of cases uploaded to the state CODIS database.

Table 2.

Texas Department of Public Safety Results of Analysis of Untested Sexual Assault Kits.

Lab	No. of profiles uploaded to SDIS	No. of profiles uploaded to NDIS	No. of conviction matches	No. of arrestee hits	No. of offender hits	No. of forensic hits	No. of legal index hits
Austin	1,794	1,665	124	33	458	72
Garland	1,370	1,321	102	48	559	114	12
Lubbock	513	479	39	9	223	15	5
Totals	3,677	3,465	265	90	1,240	201	17
Total cases completed (internal + outsource)	10,110

Note. Data provided by DPS through May 3, 2019. SDIS = State DNA Index System; NDIS = National DNA Index System; DPS = Department of Public Safety.

Investigative Outcomes of CODIS Matches Returned to Local Agencies

Table 3 summarizes the results of the DNA analysis of the legacy unsubmitted SAKs from 1996 to 2011 in the five cities in our study. The overall ratio of arrest and court filings to SAKs tested was less than 1% (0.008), and the ratio of arrests to CODIS hits was 5.5%. This is with the caveat that there were still a significant number of kits to be tested in Dallas and Corpus Christi. It is unclear as of this writing whether the remaining legacy kits that have been identified in the two sites will eventually be submitted for DNA analysis.

Table 3.

Investigative Outcomes of Legacy Sexual Assault Kits in Five Texas Cities.

	Legacy SAKs tested	CODIS eligible	Offender hits	Case to case hits	Arrested and filed	Open cases with active investigations	Still untested
Dallas	4,130	1,086	538	53	22	11	1,872
Ft Worth	648	Unavailable	144	12	17	0	0
Arlington	395	308	140	1	1	6	0
Austin	407	270	103	20	12	0	0
Corpus Christi	725	Unavailable	28	Unavailable	1	0	200
Total	6,305		953(15% of kits tested)		53(0.8% of kits tested)	17(0.2% of kits tested)	2,072(33% of kits tested)

Note. SAK = sexual assault kit; CODIS = Combined DNA Index System.

There was considerable variation among the sites, as has been noted by others (see Lovell, Luminais, et al., 2018). Fort Worth and Austin averaged about 12 arrests and filings per 100 CODIS matches, whereas Dallas and Corpus Christi averaged about four arrests and filings per 100 CODIS matches. Arlington’s rate was below just 1 per 100 CODIS matches. The differences between sites in arrest and filing rates may be, in part, due to the historical SAK testing policies and practices within each site. It is reasonable to assume that police agencies that historically had the most liberal testing policies (i.e., tested the greatest proportion of kits) would have the lowest arrest rates for unsubmitted kits because the pool of cases with unsubmitted kits would contain fewer prosecutable cases.

Reasons for Not Proceeding in Cases with CODIS Matches

We attempted to better understand why most CODIS hits in the legacy cases did not result in an arrest. In doing so, we relied on the data collection systems that each site had developed, in some cases, explicitly for our project. Because each of the five departments had their own methods for categorizing reasons why cases did not proceed to arrest, comparisons among the sites are not possible. What we can do is look across the sites to identify common reasons. In reviewing these data, the reader is reminded that the reasons cited are ascribed by police investigators: Their attributions for cases not being pursued may be quite different than the accounts given by victims (see, for example, Feeney et al., 2018). Across the sites, victim issues—including inability to locate, lack of interest in cooperating with prosecution, and stories that were judged by authorities to be inconsistent—were consistently responsible for large numbers of investigations not proceeding. When it is recalled that these cases now are between 8 and 23 years old, it is not surprising that victims become difficult to find or are not interested in participating in an investigation. Dallas and Arlington had fair numbers of CODIS hits that represented arrest confirmations. There is a degree of outcome ambiguity, however, concerning whether other sites had dissimilar lab analyses outcomes or whether arrest confirmations were buried in nebulous categories such as “Case Suspended” in Austin.

Dallas

Investigative outcomes of CODIS hits returned to the DPD were tracked using database software. The software allowed multiple outcomes to be entered for each case. Therefore, unlike the data from the other sites, Figure 1 depicts outcome categories that are not mutually exclusive and therefore do not sum to 100%. The largest category for investigations that did not proceed is the ambiguous “Investigation closed.” Overall, 44% of cases that did not proceed were coded into this category. Victim declined to participate and suspect deceased/incarcerated each were coded as outcomes in roughly one third of cases. Arrest confirmation was coded for one quarter of terminated investigations, and victims who could not be located or were deceased were coded in 15% of cases (see Figure 1).

Figure 1.

Terminated investigations Dallas (n = 463).

Fort Worth

As shown in Figure 2, the most common reason for no further action among terminated cases (28% of terminated investigations) was reluctance on the part of victims to cooperate in further investigation. Other frequent reasons given for cases not being pursued included that they were determined to be unfounded (18%), closed by exceptional means (13%), the case file or victim information was lost (12%), the victim could not be located (12%), or the district attorney’s office refused to bring charges (10%; see Figure 2). Of course, some of these categories overlap and the determination of which category to place cases in may have been quite arbitrary. For example, the district attorney may have declined to charge a case because victims were reluctant or the charges were determined to be unfounded.

Figure 2.

Terminated Investigations Fort Worth (n = 94).

Austin

Figure 3 summarizes the APD’s data on cases where investigations were terminated without arrest. Unfortunately, the departmental database does not provide specific details on why cases did not go forward. We know that the district attorney declined to charge in 19% of these cases and that the department perceived victims to be uninterested in proceeding in 35% of terminated investigations. However, 45% of the cases were simply categorized as “case suspended,” without the exact reason behind a particular suspension.

Figure 3.

Terminated investigations Austin (n = 91).

Because the APD had received funding from both BJA and DANY grants to conduct DNA analysis on previously unsubmitted SAKs, it maintained a more detailed database, regarding offender characteristics, than the other aforementioned agencies. Therefore, we were able to analyze whether there were certain case characteristics that made an arrest following a CODIS hit more likely.

Table 4 depicts the bivariate relationships between arrest and offender criminal history and victim–offender relationship in the Austin data set. Whether an arrest was made was heavily influenced by the offender’s criminal history. If an offender has a criminal conviction, he had 17 chances in 100 of being arrested, while not a single suspect without a criminal history was arrested. Offenders who had a prior sexual assault conviction had the highest chances of being arrested, as 39% of these cases resulted in arrest. The odds of arrest did not vary significantly according to the type of prior relationship, if any, between victim and offender.

Table 4.

Predictors of Arrest/Filing in Austin.

Case Characteristics	Case results in arrest
Prior criminal convictions*
Yes	17%
No	0%
Prior sexual assault convictions*
Yes	39%
No	6%
Victim–offender relationship
Intimates	15%
Acquaintances	16%
Strangers	7%

p < .01.

Arlington

In Arlington, the most frequent reasons for investigations not proceeding were (a) that the CODIS match was to a consensual partner (and Arlington law enforcement reported the victim claimed to have been assaulted by a stranger or declined to cooperate) or (b) the suspect had already been arrested (arrest confirmation). Each of these accounted for a little more than a third of investigations that did not go forward. Victim issues (victim declined to cooperate or case lacked probable cause) accounted for about a quarter of the failed investigations. Suspect deceased or match to a case in another jurisdiction comprised just a few percent of terminal investigations (see Figure 4).

Figure 4.

Terminated investigations Arlington (n = 69).

Corpus Christi

The Corpus Christi Police Department declined to provide a breakdown of reasons for terminating investigations without an arrest.

Time Study

We sought to estimate the number of detective hours that went into investigations following CODIS hits in the legacy cases. To generate these estimates, we sat down with cold case detectives in the study sites and asked them to pull representative CODIS hit cases, some that had resulted in court filings and others that had not. Our estimate of time devoted to a case was derived from investigator recall based on physical and mental notes involving each particular case in the sample they pulled. In all, we were able to gather information on 21 such cases across the sites.

To interview the detectives about hours spent on various aspects of investigating cold cases, we developed and refined a data collection form. Subsequently, the form contained a comprehensive list of 11 categories, ranging from initial case review to time spent locating and interviewing victims and suspects to consultation with prosecutors and testifying in court. See the appendix for a copy of the form.

The minimum, maximum, and mean times within each of the categories is displayed in Table 5. Not surprisingly, the times across 21 cases and five sites showed considerable variation, with some coefficients of variation equal or greater than 2 (indicating that the standard deviation is twice the size of the mean). The activities that consumed the greatest amount of time were locating and interviewing victims (6.5 hr) and preparing and testifying at trial (7.9 hr). The average overall time spent on arrest cases was 32.64 hr.

Table 5.

Time Spent on Various Investigative Activities for CODIS Hit Cases.

	N	Range	Minimum	Maximum	M	SD
Process CODIS results. Review case file/obtain criminal histories	20	7.50	0.50	8.00	1.65	1.66
Consult with prosecutor	21	16.00	0.00	16.00	3.90	6.26
Locate/interview victims, prepare photo spread	20	19.00	1.00	20.00	6.50	4.80
Locate/interview witnesses	21	16.00	0.00	16.00	2.31	4.01
Obtain DNA or arrest warrant	21	6.50	0.00	6.50	3.19	1.38
Locate/interview suspects; obtain confirmatory DNA; take sample to lab or property room	21	12.50	0.00	12.50	4.95	3.08
Meet with probation/parole officer/attended parole hearing	21	2.00	0.00	2.00	0.14	0.48
Prep case for district attorney	21	4.00	0.00	4.00	1.73	1.36
Trial prep/testify at trial	21	32.00	0.00	32.00	6.21	11.29
Input case info in computer database	20	4.50	0.50	5.00	1.95	1.67
Other	21	2.00	0.00	2.00	0.10	0.44

Note. CODIS = Combined DNA Index System.

We also estimated average investigative hours spent on CODIS hit cases that did not result in an arrest by summing the times for the initial case review, consultation with the prosecutor, and locating and interviewing victims. This turned out to be 12.05 hr. In some non-arrest cases, the time spent by investigators would have been less because they may have done nothing but review the case file; whereas in others, time spent would have been more because investigators may have also spent time trying to locate and/or interview witnesses or suspects.

Cost of Investigating Legacy Cases with CODIS Matches

In this section, we estimate the costs involved in testing, investigating, and prosecuting the legacy unsubmitted kits that led to the 53 arrests and court filings that were achieved in the five cities where we conducted the research.

Costs of DNA Testing

A North Carolina Department of Justice survey of the cost of SAK processing in eight states found a wide range in cost, from US$236 to US$2,300 per case.³ The DNA Sexual Assault Justice Act of 2002 cited the cost of DNA testing an SAK to be between US$500 and US$1,000 per case.⁴ A 2011 report cited the cost of SAK laboratory processing from US$800 to US$1,500.⁵ More recently, End the Backlog placed the cost from US$1,000 to US$1,500 per SAK analyzed.⁶ The ranges in the estimates result from the fact that each SAK may contain one or multiple DNA samples. We will use US$1,000 for calculation purposes here. Based on that figure, the total cost of processing the legacy DNA samples in the five Texas cities was approximately US$6,305,000.

Investigative Costs

To calculate police investigative costs, we relied on data collected in our time study and information on investigator salaries in the state of Texas. Previously we calculated that the average time to investigate legacy CODIS hit cases was 32.64 hr. According to the Bureau of Labor statistics, as cited by DetectiveEdu.org, the average salary for a detective in Texas is US$74,596.⁷ On an hourly basis that works out to just below US$36/hr. Multiplying US$36/hr x 32.64 hr yields US$1,175 for each case resulting in arrest. Multiplying that by 53 cases arrested and filed yields US$62,275, which represents investigative costs in cases resulting in arrest and filing. For the cases that do not result in arrest, we use the 12.05 hr of investigative time calculated before. Multiplying the number of hours per case by the hourly rate and then by the number of non-arrest cases yields a total of US$413,411. Adding that to the cost of cases arrested and filed yields a total of US$475,686 representing investigative costs for the CODIS hits in the five cities.

Court and Prosecution Costs

The costs of prosecution and the judicial system for cases resulting in arrest and court filing must also be taken into account in computing the cost of analyzing the legacy kits. For that estimate, we relied on recent work by Hunt et al. (2019). Hunt and colleagues applied a Monte Carlo simulation to refine bottom-up data on court, prosecution, and defense staffing costs and hours for different types of cases, including sexual assault. The authors argued that this is the best method for generating an estimate of the marginal cost of prosecuting a case. This seems the best approach to our question which is “What is the additional cost of filing a relatively small group of sexual assault cases that otherwise would not have been filed?” The figure that Hunt and colleagues (2019) come up with is US$3,165 in justice system costs per additional sexual assault case filed. This figure tallies well with another recent estimate of US$4,000 for marginal criminal justice costs for police, prosecutors, court, and defenders in sexual assault cases by Schlueter and colleagues (2014). Subsequently, we multiply US$3,165 × 53 cases filed, which adds an additional US$167,745 to the cost tally.

That brings the total costs of the legacy kit project to just below US$7,000,000.⁸ Dividing that total by the 53 arrests and court filings yields approximately US$132,000 per filing. That seems like a high figure, but several recent studies have considered the cost savings that may result from testing of DNA in cold cases and prevention of repeat assaults directly through identification and prosecution of rapists or indirectly through adding additional DNA samples to the CODIS database (Doleac, 2017). These analyses have considered benefits to survivors as well as societal costs external to victims such as the cost of preventive private security, productivity losses, and avoided costs to the criminal justice system (Speaker, 2019). These studies have tended to estimate huge returns on investment on the order of 8,000% or even 64,000% (Speaker, 2019; Wang & Wein, 2018).

Conclusion

Texas was a pioneer in the national movement to test all SAKs. The Texas law had dual requirements—that all kits be tested going forward and that existing unsubmitted kits in the custody of law enforcement be submitted to a crime lab for DNA testing. The two requirements are distinct and need to be assessed separately. Earlier work (Davis et al., 2019) evaluated the impact of the law on cases going forward, whereas this article examines the results of the process of lab analysis of previously unsubmitted, or legacy kits.

Table 1, which portrays the testing and criminal justice system outcomes reported across several studies, shows that, with few exceptions, arrest, prosecutions, and convictions are not common. The findings reported here are consistent with the results of several other published studies summarized in the table. We found that the ratio of arrest and filings to all kits submitted for lab analysis was just below 1%, and the ratio of arrest and filings to CODIS hits was 5.5%. It is important to note that not all testing was completed as of this writing, so these statistics may change slightly (although, it is unlikely that all of the kits will ever be tested or investigations started on all returned cases with CODIS hits).⁹

Still, the results reported here regarding arrest and conviction outcomes are similar with outcomes observed in Houston, Los Angeles, New Orleans, Manhattan, and Multnomah County and in some media accounts (see Flores, 2020). The studies that reported higher rates (Davis & Wells, 2019; Gabriel et al., 2010) are ones that, rather than analyzing all unsubmitted kits, were selectively targeting those cases most likely to benefit from further investigation and result in an arrest.

We calculated the cost of each arrest and filing to be US$132,000 taking into account the costs of DNA testing, investigating cases with CODIS matches, and court costs for those cases filed. We note that our estimates of DNA analysis and investigative costs are similar to those reported by Singer and colleagues (2016).

Of course, our analysis of the universal testing statute in Texas was only able to estimate the cost of the program. There are many benefits to testing previously unsubmitted SAKs. Although the “hit rate” for arrests and filings in cold cases is low, testing and uploading of DNA samples to CODIS populate the database with samples that current and future crimes can be compared with. Populating CODIS is an important outcome of work to test SAKs because there is evidence that serial sexual offenders are more common than previously suspected, and sexual offenders engage in other forms of nonsexual criminal behaviors (Campbell, Fehler-Cabral, et al., 2015; Lovell et al., 2017; Lovell, Yang, & Klingenstein, 2018; Lovell et al., 2020); some offenders from the previously unsubmitted kits are likely to offend again, and having a sample in CODIS will help police and prosecutors build cases against these individuals. In addition, universal testing requirements signal to the public that the criminal justice system cares about and is doing something to solve sexual assaults. This may improve citizens’ trust in and perceptions of legitimacy of the police, and increase victim reporting (Henry, 2020; important because sexual assault has historically been the most underreported violent crime, Langton et al., 2012). Knowing that the police have tested SAKs may also enhance victims’ perceptions of procedural justice, which can positively affect satisfaction with the criminal justice response even if the desired outcome is not obtained (Thibault & Walker, 1975). Each of these potential outcomes has long-term implications for the functioning of the criminal justice system response to sexual assaults.

This study has significant limitations. We captured information on previously unsubmitted SAKs and the time spent investigating them from only metropolitan cities in Texas. This sampling frame, therefore, only captures the impact mandatory testing had on five large agencies and not municipalities serving less populated areas in the state. Second, as we have noted throughout the article, the record-keeping method deployed by each agency varied significantly, which made it challenging to capture consistent information across departments. For example, quantifying time spent by detectives on CODIS hit cases were obtained retrospectively, driven by mental and physical notes, and not in a prospective manner. Finding variation in record-keeping practices across police agencies is expected, based on our experience working with numerous police agencies on research projects. Nonetheless, it is unfortunate that we were not able to compare across sites reasons why few cases resulted in arrests or were otherwise opened and investigated returned CODIS hits did not result in arrests: This would have been useful information to the field.

Based on our findings, it could be argued that while the Texas requirement to analyze all unsubmitted kits was commendable, it might have been more narrowly crafted and certainly better funded. The Texas legacy cases were quite old (based on crime reports made 8–23 years earlier), making it more likely that original case files could not be located and enhancing the difficulty in locating victims and suspects, along with securing victim cooperation. Possibly there might have been an age limit placed on the cases to be tested, with a cut off at those more than 10 or 12 years old. The challenges that accompany older cases was exacerbated by the slowness of the legislature to provide adequate funding to state and private labs, and the complete lack of state funding provided to local law enforcement agencies where testing was often perceived as an unfunded mandate. As a result, in Dallas, Fort Worth, and Austin—the cities with large number of CODIS hits—pursuing investigations in these cases was not universal. Investigations in these cold cases took a back seat to new cases, and were pursued when time and workloads permitted. In Austin, where we had detailed case data, there was evidence that investigators prioritized cases based on suspects’ criminal histories.

Because implementation of universal testing in Texas was seriously flawed by lack of funds and resulting in long wait times for DNA analysis and investigations of CODIS hits, our results do not speak to the general issue of the societal benefits of universal testing. Our results do suggest that, when such statutes are enacted, lawmakers and criminal justice officials would be wise to think through the consequences of the policy and provide adequate resources to crime labs and local law enforcement agencies to carry out the mandate.

Footnotes

Appendix

Time Study Data Collection Form.

Case No. (detective) Date of initial report:

Description	Hours	Notes
Process CODIS results. Review case file/obtain criminal histories
Consult with prosecutor
Locate/interview victims, prepare photo spread
Locate/interview witnesses
Obtain DNA or arrest warrant
Locate/interview suspects; obtain confirmatory DNA; take sample to lab or property room
Meet with probation/parole officer/attended parole hearing
Prep case for district attorney
Trial prep/testify at trial
Input case info in computer database
How was case closed? Arrest, exceptional means, unfounded. Suspended?
Other

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Research was funded by a grant from the National Institute of Justice.

ORCID iDs

Robert C. Davis

Alicia Jurek

Notes

Author Biographies

Robert C. Davis is Chief Social Scientist at the National Police Foundation. His current work includes assessing how small police agencies respond to calls involing persons in crisis due to mental illness or drug abuse and examining the effect of Terry stops on crime and communiyt opinion of the police.

Alicia Jurek earned her PhD in criminal justice and criminology at Sam Houston State University. Her research interests include police organizations, representative bureaucracy, police investigations, and the intersection of policing and victimology. Her recent work has appeared in Policing and Society, Policing: In International Journal, and Feminist Criminology.

Dr. William Wells is Chair of the Department of Criminal Justice and Criminology at Sam Houston State University. His research addresses questions about police responses to violent crime and the role forensic evidence plays in police investigations. He is currently a research partner on two violence reduction projects being carried out by the Houston Police Department. Dr. Wells’ research has recently appeared in the Journal of Experimental Criminology, Justice Quarterly, and Proceedings of the National Academy of Sciences.

Joshua Shadwick is an associate professor in the Department of Criminal Justice, Social Work and Sociology at Southeast Missouri State University. His research interest involve policing and the criminal justice system’s response to social problems.

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