State failed to collect required DNA samples from 6,300 Kentucky felons

FRANKFORT — The Kentucky Department of Corrections failed to collect DNA samples from about 6,300 convicted felons in violation of a 2009 state law, justice officials announced Thursday.

"We messed up," said J. Michael Brown, secretary of the Justice and Public Safety Cabinet, at a news conference in Frankfort.

The department is collecting DNA swabs on more than 2,400 felons who are in prison or under the department's supervision. But letters will have to be sent to 3,915 inmates who have been released by the department or are no longer on probation and parole. Those convicted felons must give a DNA sample or face misdemeanor prosecution, Brown said.

"The law is clear that these individuals must still provide a DNA sample, even if they are no longer under supervision," Brown said. "Because we must comply with the law and because a robust DNA database is critical to law enforcement, we will aggressively search for these individuals and notify them of their requirements to provide a DNA sample."

Those who don't knowingly comply could be charged with a Class A misdemeanor, which carries a penalty of up to 12 months in jail or a maximum fine of $500.

The state's criminal defense lawyers said Thursday that they are still trying to determine whether collecting DNA samples from felons who have been released from prison would violate constitutional rights.

"Kentucky Association of Criminal Defense Lawyers would have concerns about any efforts to take DNA samples from individuals who have been released from incarceration," said Larry Simon, the president of the association.

"In the absence of statutory authorization, such efforts implicate the right to privacy and raise the possibility of an unconstitutional search and seizure."

Simon said each case may be different. "It's a little too early to say if people's rights have been violated," Simon said. "We will have to let the department conclude its investigation."

The state began collecting DNA samples of convicted felons in March 2009 after the legislature passed a law requiring the department to do so. The samples can be used by police and prosecutors to determine whether a felon has committed other crimes. But Brown said Thursday that he was not aware of any high-profile crimes that have been solved because of the 2009 law.

"That could be because it's still relatively new," Brown said.

Since 2009, the department has collected 75,600 DNA samples, or 92 percent of the DNA samples they were supposed to collect.

Department of Corrections Commissioner LaDonna Thompson said Thursday that she discovered the error while running some internal reports several weeks ago. Thompson noticed that a box for the collection of the DNA sample was not checked on one person. Thompson ran several other reports and discovered that more than 6,000 felons had never had their DNA collected.

Brown said the department has not determined why the mistake happened so often. The errors occurred in 20 probation and parole districts. The majority of the people who were not swabbed for DNA were convicted of either drug or property crimes, according to statistics provided by the Department of Corrections. Of the nearly 4,000 felons without DNA samples who have been released from prison, only eight were convicted of violent crimes, and none were convicted of sex crimes.

Most were convicted of Class D felonies — the lowest class of felony, with a maximum sentence of one to five years in prison.

Thompson said it was the department's protocol to collect a DNA sample at the time of the pre-sentence investigation, which is conducted before someone is sentenced and sent to prison. Brown, a former judge, said that in some cases, the judge does not require a pre-sentence investigation. Or people can be released for time served and never serve time in a state prison.

Gov. Steve Beshear and Brown have called for an independent investigation to determine why the DNA samples were missed. The inspector general for the Transportation Cabinet will conduct that investigation. It's not clear when that investigation will be completed.

How much the mistake will cost the department is not known. Brown said Thursday that he thought the costs would be minimal.

Thompson said the department has already put safeguards in place to make sure that DNA is collected before someone is discharged from Department of Corrections custody.