COLUMBIA — In this tough-on-crime state, many of South Carolina's jails aren't complying with a five-year-old requirement to collect DNA samples from suspects, according to data from the State Law Enforcement Division.
That means DNA profiles are not being uploaded into a national database that has gotten killers and serial rapists off the streets. How many suspects held in South Carolina jails were never cheek-swabbed is unknown.
Some jails took years to start collecting samples, while others haven't sent any in years. Charleston County hasn't sent any since September.
Charleston County, the state's third most populous county, ranks 24th in samples sent, or 210 total over more than 2 1/2 years. Charleston County Capt. Roger Antonio, a sheriff's spokesman, said last week he would call back with answers but hasn't responded since.
"They're potentially letting somebody walk through their physical custody who could've committed one of these heinous crimes," Maj. Todd Hughey, SLED’s crime lab director, told The Post and Courier. "It's a potential to miss out on tying them to the crime they've already committed or at least investigative leads."
South Carolina is among at least 30 states with laws on collecting DNA from people charged with certain crimes, ranging from all felonies to specified violent felonies such as murder and rape, according to the National Conference of State Legislatures. South Carolina's law requires cheek swabs — collected by what looks like a large Q-tip — from any adult arrested for a felony or any other crime punishable by at least five years in prison, as well as eavesdropping, stalking and peeping.
SLED Chief Mark Keel calls the law one of the state's most powerful tools for solving cases and protecting the public.
"It's mandatory. It's not optional. It's not voluntary," Keel said.
He's not sure what the problem is, though he guesses high turnover in jail administration is a factor. Some officials contacted over the past week said they didn't realize they had a problem.
There's no penalty to the jails for not complying. And SLED is so underfunded, it can't keep up with what it's sent now. As of Dec. 31, more than 1,300 arrestee samples were awaiting analysis. The agency's average turnaround from arrival to upload is 85 days.
"We’re not capable of not having a backlog," Hughey said. "It’s like an emergency room, we have to prioritize cases coming through the door."
It could get more difficult for SLED to keep up the current pace. The agency asked legislators for $200,000 in the upcoming state budget for four DNA caseworkers, though only one would be new. A third of current staff is paid through a federal grant that's ending. Other requests include more than $600,000 for the DNA kits themselves, which FBI mandates have made more expensive. The biggest request is $54 million to replace the entire three-decade-old crime lab, which predates the forensic science that now occupies 2 1/2 of its four floors.
The budget sent last week to the House floor contains none of those requests.
If needed, Keel said, his agency will manage as best it can within its budget and find other places to cut if needed.
SLED has no way to track how many samples it should be getting. But Keel is concerned about the low numbers from some jails.
The law was passed in 2008 but the requirement didn't take effect until 2013 when the U.S. Supreme Court declared such laws constitutional and legislators started funding the DNA kits. SLED began training jail officials that year. Previously, only state prisons collected DNA samples from convicted felons.
In all, jails sent SLED nearly 28,300 DNA samples between July 2013 and mid-February. Total submissions ranged from six from Pickens County, to nearly 4,300 from Horry County. The other top senders are Greenville, York, Lexington and Aiken counties, in that order.
On Monday, Pickens County Sheriff Rick Clark thanked The Post and Courier for pointing out the problem.
"I'm mad and embarrassed, but it's fixed now," he said. "It was a total mistake on our part."
Clark said the jail had collected three dozen DNA samples since 2016 but had not sent them to SLED until last weekend.
While the county's total still sounds low, Clark said that's because his jail gets a lot of repeat business.
"An overwhelming majority of ours have already been in jail before," he said.
SLED does train jail officials not to send duplicates. The agency already stores about 225,000 DNA samples in its increasingly cramped crime lab. If someone's already in the database, it's a waste of time, money and space to go through the multi-step process required to upload a DNA profile, Keel said.
But repeat offenders can't explain away the numbers.
Edgefield County, for example, sent in 27 samples between April 2015 and October 2016, and then stopped, the SLED data shows.
"We thought it was getting done," Capt. Chris Wash said Tuesday. But an internal review over the past week prompted Sheriff Adell Dobey to assign someone to oversee the samples.
"There's no excuse. We just failed to act on it," Wash said. "It shouldn't happen again."
The worst late-starter was the combined jail for Sumter and Lee counties, which began sending samples in March 2017. It has since sent 60. A spokesman for Sumter County Sheriff Anthony Dennis explained he didn't have control of the jail until last fall. It was among the 20 percent of jails run by county governments rather than sheriffs.
Legislators were taken aback by the lack of compliance.
"It's disappointing. It's a tool for law enforcement, so why would they not do it? I can't fathom why," said House Speaker Pro Tem Tommy Pope, R-Rock Hill. He's a former solicitor who in 1993 prosecuted one of the state's first death penalty cases using DNA evidence, five years before SLED began collecting DNA from prisons.
Rep. Bruce Bryant, a former York County sheriff whose office investigated that case, was among sheriffs who fought for the law change.
"The more we have in the database, the better off we'll be," said Bryant, R-York, who was elected to the House last year after 20 years in the sheriff's role. "Criminals have no geographic boundaries. As time goes on, we can solve more and more crimes because we're getting more and more hits."
There are two types of "hits" from an uploaded profile. It could match DNA from an unsolved case. It could also link cases together, sometimes states apart. So far, SLED has gotten nearly 400 hits from suspects jailed in South Carolina.
In 2016, then-63-year-old Isaiah Gadson Jr. was charged with attempted murder in Beaufort County. His DNA hit on evidence from a 36-year-old cold case. Gadson was subsequently accused of shooting a teenage boy to death in 1980 and robbing and raping the girl with him. The charges are still pending.
Beaufort County Capt. Bob Bromage said it was exciting to finally make an arrest in the brutal case.
"Major case investigations don't get more serious than that," Bromage said.
Without the law, Gadson would have had to be convicted for an unrelated crime before his DNA could have been uploaded. That could have taken many more years, he said.
Last year, DNA collected from a man accused of breaking into a woman's home in Bluffton and raping her pinged to DNA collected from two similar break-ins in Charlotte, N.C., as well as a burglary in Texas. Also last year, a man arrested in Greenville for brandishing a gun was linked to the 2016 machete hacking death of two men in Seattle. Those cases are also pending.
"That’s the power of this science," Keel said. "It’s making connections to cases in the past we’d never have the opportunity to make the connection. I can’t think of anything much more powerful than that."