A law requiring agencies statewide to collect DNA samples from people arrested for felonies seemed like a good idea to police when it was enacted in 2009.
About the law
A law in January 2009 amended a 1994 statute that created the State Law Enforcement Division’s DNA database, which contains samples from people sent to prison.
It requires DNA samples to be taken from anyone, including juveniles, arrested for any of these:
A crime punishable by at least five years in prison
Eavesdropping, peeping or stalking.
The samples can be collected by trained employees at jails, sheriff’s offices or courthouses.
Seven uses of the DNA are approved, including matching the sample with DNA evidence from a different criminal case.
Solicitors must notify SLED to destroy the sample and any electronic record of it if:
Charges against the suspect are “nolle prossed,” dismissed or reduced to lesser crimes not requiring DNA testing
The suspect is found not guilty
Convictions are reversed, vacated or set aside.
S.C. Code of Laws
The system could allow investigators to match DNA from cold cases with suspects not yet convicted of a crime. They wouldn’t need a warrant.
They wouldn’t rely on a database containing DNA from only current and former prison inmates.
But politicians couldn’t come up with the money to fund it.
That changed this fiscal year, when they approved the $1 million startup cost.
So more than three years after the law was enacted, the State Law Enforcement Division finally started devising a program to comply with it.
By then, the agency was facing another hurdle: Taking DNA from a jailed suspect without a warrant was being challenged in the U.S. Supreme Court.
SLED put the brakes on the program. Officials didn’t want to buy new equipment or teach jailers how to use it until the case was decided.
“I didn’t want to commit resources to a program that’s not going to be constitutional,” said Maj. Todd Hughey, who leads SLED’s crime laboratory. “Now, we’ve really started to move full speed ahead.”
Hughey’s green light came last week when the nation’s top justices gave a nod to the general practice, although civil liberties advocates in South Carolina worry that it could lead to unreasonable searches.
Other skeptics of the new effort question the state’s ability to sustain the funding and handle the influx of new DNA samples at a testing laboratory already notorious for backlogs.
On July 1, SLED plans to unveil the program at jails in Lexington, Greenville, Horry, Spartanburg and Richland counties.
Other counties, starting with the larger ones, will follow. No timetable was set for when all jails will be up and running.
Privacy vs. justice
Under the law, the collection of DNA samples will become as routine as fingerprinting during the jail booking process.
Jailers will use cotton swabs to remove saliva from the cheeks of people, including juveniles, arrested for a felony, for an offense punishable by at least five years in prison, or for eavesdropping, peeping or stalking. Samples will not be taken from suspects already in the system.
The American Civil Liberties Union of South Carolina opposed the initial legislation that led to the new program. Its executive director, Victoria Middleton, said her concerns didn’t fade after the Supreme Court’s decision.
“Permanently warehousing DNA from people not yet convicted of a crime violates their privacy,” she said, “while making it more difficult to find those who have engaged in illegal activity.”
The court case, Maryland v. King, hinged on DNA taken from Alonzo Jay King Jr. after he was arrested in 2009 on assault charges. His DNA matched evidence from a sexual offense from six years earlier.
King was convicted of rape, but his attorneys appealed by arguing that collecting DNA from someone not convicted of a crime was an unreasonable search under the Fourth Amendment. Justice Anthony Kennedy wrote in the majority’s opinion that DNA swabbing, like fingerprinting, is a legitimate part of jail booking. It can help identify suspects in custody, the court said.
The federal government and 28 states allow it. Solicitor Scarlett Wilson of the Ninth Judicial Circuit called the ruling a “giant step forward” for criminal investigations. Whether lawmakers can find the money to permanently fund the SLED program concerns her, she said.
“We get so many hits on cold cases from people convicted and released,” she said. “This is going to open it up even further.”
How it works
Lexington County will be one of the first to participate. Jail employees will undergo SLED training on June 27, four days before they start collecting DNA. Sheriff’s Maj. John Allard said it’s too early to comment on the practice.
“We don’t know what all will be entailed,” he said.
During booking, correctional officers will use a computer to determine whether a suspect’s charges make him eligible for DNA testing. Next, they will search a database to see if the suspect’s DNA already has been filed. If it’s not already in the system, a saliva sample will be taken and sealed into a container with a barcode. The sample is shipped to SLED, where it is analyzed and logged into the state DNA database.
“We’ve been working quite a while to get this implemented,” Hughey said. “We really won’t know how well it will work until the system is in place.”
For opponents, the law’s silver lining is a provision requiring that samples be removed when charges against the suspect fall through. If a defendant avoids conviction, solicitors must notify SLED, which has 14 days to eliminate the sample.
“It is critical that privacy safeguards are enforced and expungement occur automatically,” the ACLU’s Middleton said. Still unknown is how efficiently SLED will handle the new workload.
The number of DNA samples catalogued every year — about 10,000 — could double, possibly triple, so Hughey hired two new experts to complement his four-worker lab force.
Money will be needed in future budgets to pay for their salaries, possible lab renovations, the training of jail workers and the testing kits distributed to all 46 counties. A $250 fee charged to some people convicted of a felony will help offset the costs, Hughey said.
The need for more money and the impending deluge of samples raised skepticism among some experts.
Daniel Demers, who directs a private lab in Hilton Head, has helped the Goose Creek Police Department solve crimes through DNA evidence within days.
Goose Creek officers have been collecting suspects’ DNA on a voluntary basis for two years and sending the samples to Demers’ IntelliGenetics, which maintains a database. In at least two robberies, Demers and his crew matched evidence to DNA already submitted.
Goose Creek pays about $200 for each test. SLED’s service is free, but investigators often wait for months to get the results. Police Capt. John Grainger said the city planned no immediate changes because of the Supreme Court ruling and SLED’s new program.
Demers questioned SLED’s ability to handle the current backlog of evidence testing, as well as the added burden of more samples. It might make contracts with private labs more attractive for police agencies, he said.
“If you’re not going to test the evidence, what’s the good in testing the suspects?” he said. “The idea is great, but I don’t see a lot of new money coming into the system in a long-term way.”
Charleston County Sheriff Al Cannon has long attempted to establish an in-house lab to more quickly process DNA evidence. He thinks county politicians see the value in adding such a resource and, in about a year, hopes to get the ball rolling on a new facility.
In the meantime, he said, DNA testing is still worth the wait. A report contracted by the Palm Bay Police Department in Florida, a forerunner in using new technology to solve cases through DNA matching, indicated a 60 percent drop in residents’ monetary losses from property crimes during the program’s first year.
During a three-year project in Charleston County’s three biggest cities, DNA collected from 413 local crime scenes was tested at West Virginia’s Marshall University. In 40 percent of the cases, many of which were burglaries, experts matched samples to known criminals, the cities announced in 2011.
The Supreme Court’s ruling, Cannon added, might usher in further advancements — just as how fingerprints now can be collected, tested and almost instantly matched to a suspect.
Privacy advocates’ concerns should be allayed, the sheriff said, because DNA, like fingerprints, does just as much to clear suspects and free them as it does to convict them and send them to prison.
“This works both ways,” Cannon said. “Eliminating the possibility that one suspect perpetrated the crime can be just as helpful in getting to the ultimate solution.”