Senate panel approves bills to expand DNA collection, set deadline for testing rape kits

A Senate panel approved bills on Thursday that would require the state to collect DNA samples from more criminal cases and test DNA samples from rape kits on tighter deadlines.

The Senate Judiciary Committee voted 6 to 4 to send Senate Bill 150 to the full Senate. SB 150 would require police or jailers to collect a DNA sample — usually through a cheek swab — from anyone arrested, indicted or otherwise charged with a felony. People could apply to have their samples deleted if charges ended in dismissal or acquittal. Across the Capitol, a similar measure, House Bill 191, is awaiting action by the House budget committee.

“I don’t think that it’s much of an intrusion to take a Q-tip and swab someone for DNA when they’ve been arrested for a felony,” said Sen. Ray Jones, D-Pikeville, while voting for the bill.

State law currently requires DNA to be collected by the Kentucky Department of Corrections after someone is convicted of a felony. However, the U.S. Supreme Court in 2013 upheld DNA collection as a reasonable booking procedure for criminal suspects, similar to fingerprinting and photographing, despite the Fourth Amendment’s protection against unreasonable search and seizure.

In recent years, 28 states have expanded DNA collection to felony arrests, Jayann Sepich, founder of the nonprofit DNA Saves, told the Senate committee on Thursday. Waiting for a felony conviction allows criminals to pass through the justice system for years without being swabbed, so they can continue to hurt people, Sepich said.

Sepich’s 22-year-old daughter, Katie, was raped, strangled to death and set on fire in New Mexico 13 years ago. Police found trace amounts of the killer’s skin and blood under Katie’s fingernails. From that, DNA samples were retrieved and uploaded to CODIS, the federal law-enforcement DNA database.

Police told Sepich that CODIS compared samples from known offenders and crime scene evidence every week, looking for matches, which gave her hope.

“I said, ‘This man is such a horrible monster, what he did to my daughter was so unspeakable that he will be arrested for another crime. And when they take him in and they book him, they’re gonna take his fingerprints, they’re gonna take his photograph, they’re gonna swab his cheek, and we’ll know who did it, and we’ll stop him,’” she said. “The detective said ‘No, Jayann, it doesn’t work that way. In New Mexico and in almost every other state in this country, it’s illegal to do that.’”

“I would wake up every morning, and I would cry and I would miss my daughter, and I would think ‘Why aren’t we using this evidence to find my daughter’s killer?’” she said.

Katie’s killer was arrested several months after her death for an unrelated aggravated burglary, Sepich said. But it wasn’t until three years later, when he was convicted for a felony, that a DNA sample was taken and he was identified as Katie’s attacker. Confronted with the test results, the man confessed and was sentenced to 69 years in prison.

Sepich lobbied New Mexico to pass a “Katie’s Law,” to collect DNA samples after felony arrests. Since that law passed in 2006, she said Thursday, 1,056 crime scene samples have been matched against a suspect sample, and three men wrongfully convicted of rape or murder have been exonerated because the guilty people were identified.

Members of the Senate committee argued over the bill Thursday. Several senators from both parties raised civil-liberties concerns, saying that Americans are considered innocent until proven guilty and should not have to provide something as personal as their DNA at the arrest stage of a criminal case.

Sen. Perry Clark, D-Louisville, said the Supreme Court decision authorizing DNA collection during booking involved a Maryland law with a specific focus on violent crimes or burglaries, “not every Class D felony,” like the Senate bill. Clark asked sarcastically what is stopping the legislature from demanding DNA samples from babies across Kentucky as they are issued Social Security numbers.

“It just appears to me that, privacy-wise and stuff, my blood, my piss, my spittle is mine, unless there’s a conviction, unless there’s an order to give that up,” Clark said.

Sen. Dan Seum, R-Fairdale, said he’s troubled by the potential exploitation of a government database with DNA information on citizens.

“The Founding Fathers said ‘Never trust this government,’” Seum said. “That’s why we have the Fifth Amendment. And that’s why we have the Second Amendment.”

In response, Sepich said that CODIS, the federal database, does not collect complete samples of DNA, which holds three billion base pairs of unique genetic information about individuals. It collects 13 specific markers from each person’s DNA that contain no genetic or medical information, she said.

Also, samples are identified by unique specimen numbers that must be traced back to law enforcement agencies, not names or Social Security numbers. Even if someone hacked into CODIS, they would have no idea whose DNA samples they were looking at, she said.

Also Thursday, the committee unanimously approved SB 63, to improve the collection and testing of sexual assault kits.

Rape kits contain biological evidence collected from assault victims during investigations. Prompted by the General Assembly, the state auditor’s office last year uncovered 3,091 untested rape kits in police custody and forwarded them to the Kentucky State Police crime lab in Frankfort for possible DNA matches. The state obtained a $1.9 million grant to clear the backlog by hiring private lab services.

To avoid more problems in the future, Sen. Denise Harper Angel, D-Louisville, said her SB 63 imposes tighter deadlines. The bill would require police to send rape kits to the crime lab within 30 days of collecting them, in order to continue getting state training funds, and to notify victims if a DNA match is made. The crime lab would have to analyze rape kits within an average of 90 days by July 2018 and 60 days by July 2020. The current turnaround time is about eight months.

However, the bill waives the time limits on the crime lab if the state fails to give the lab enough money. A fiscal note attached to the bill estimates the five-year cost as $4.7 million for staff, equipment and additional space. Gov. Matt Bevin’s state budget proposal, now in the hands of the House budget committee, included $4.5 million to address the rape kit backlog.

“Thursday marks a significant day for sexual assault survivors in the commonwealth,” Eileen Recktenwald, executive director of the Kentucky Association of Sexual Assault Programs, said in a prepared statement after the committee hearing. “These measures would greatly improve public safety, help law enforcement catch more criminals and send a clear message to survivors in Kentucky that they matter.”

This story was originally published March 10, 2016 at 4:25 PM with the headline "Senate panel approves bills to expand DNA collection, set deadline for testing rape kits."