RIO GRANDE – Felons beware. The dragnet just became a little tighter. The long arm of the law may now have a swab attached. Effective Feb. 1, with changes to a 1994 state law requiring suspects convicted of specific crimes to submit DNA, samples will now include suspects arrested for a specified array of charges.
Suspects arrested for felonies such as murder, manslaughter, aggravated sexual assault, sexual assault, aggravated sexual contact, sexual contact, second-degree aggravated assault, kidnapping, luring or enticing a child, engaging in sexual contact which would impair or debauch the morals of a child, or an attempt to commit any of the listed crimes will be subject to being fingerprinted and photographed, and will also be subjected to DNA testing that will result in their DNA sample becoming part of a national database. The mandate applies to both adult and juvenile suspects upon their arrest.
According to the National Institute of Justice (NIJ), 28 states as well as the federal government have passed legislation authorizing the collection of DNA after arrest. The first state to enact a law requiring testing of arrestees was Louisiana in 1997.
Of those states with laws on their books, approximately one-half collect samples from all arrestees, regardless of charges. Other states, such as New Jersey, limit the collection to suspects arrested for specific crimes. Information obtained from the testing is forwarded to a national database, CODIS (Combined DNA Index System) where it can be matched with DNA samples from victims and crime scenes with the hope of a match, or “hit.” In New Jersey, the CODIS database is maintained by State Police.
Prior to the new law taking effect in this state, only suspects convicted of indictable crimes were required to submit to DNA sampling.
“The old law was great,” said Chief of County Investigators Kenneth Super of the Cape May County Prosecutor’s Office, noting the old method of DNA sampling upon conviction allowed police to solve cases. He explained without a conviction, “They potentially could have someone in jail for a sexual assault and find out after he’s already been released that he was involved in the other jobs,” Super explained.
Super said under the old law suspects who are charged and released on bail often do not have their cases heard for a year or two, thereby giving them the opportunity to reoffend.
Sergeant Douglas Osmundsen of Middle Township police cited an example of the use of DNA in solving crimes. He shared the story of a 20-year-old cold case involving the sexual assault of a Mantua woman was solved this past April after a West Deptford officer examined the case and was able to match the DNA of Dewaine Thornton, 52, to the assault. Thornton allegedly confessed to the crime after DNA evidence linked him to the case. A previous crime had placed Thornton’s DNA into the database. He was charged last year with sexual assault, burglary and related charges to the 1992 sexual assault as well as being charged with resisting arrest and assaulting police officers during his arrest.
While the new law may seem like a page out George Orwell’s, “1984” and a violation of a suspect’s Fourth Amendment right under the U.S. Constitution which guards against unreasonable search and seizure, Super said that onus is not for police to decide.
“In order for you to be arrested, there has to be probable cause,” he said, adding the U.S. Supreme Court will hear arguments about collecting DNA from arrestees in February. Similar legislation enacted in Maryland was recently struck down.
Testing of arrestees will be completed at local police departments at the time of arrest.
Osmunsden said suspects arrested for any of the felonies listed in the new law will be photographed, fingerprinted and submit to DNA collection at the time of their arrests by Middle Township police.
Super said the addition of DNA testing at the time of arrest for specific crimes does not negate testing of people convicted of indictable offenses.
“The conviction law is still going to be in place,” said Super. “Anyone who has been convicted of an indictable crime is going to be swabbed. We’re just going to do the enumerated ones at arrest.”
The use of the new law may serve as a boon for police departments. Cases that have sat unsolved may now find closure with a larger DNA base.
“It’s going to be great because we have a lot of DNA evidence sitting out there with no suspects,” said Osmunsden. According to the sergeant DNA evidence taken from crime scenes is held by police in hope of a CODIS hit.
“Hopefully upon arrest we can collect DNA samples here and put it into CODIS and get a match,” said Osmunsden. He added the department’s Major Crimes Unit will perform the test on arrestees.
Swabbing for DNA is a relatively simple procedure, said Osmunsden. He explained the process of a swab, called a buccal, being swabbed inside an arrestee’s mouth. “We take the swab from them and roll it on a collection paper. And then it’s sent away,” explained Osmunsden. “It’s as simple as that.”
That simple act, however, may pay big dividends in solving crimes. “I think it’s going to help,” said the sergeant. “There’s a lot of evidence we’ve collected, not only in Middle Township but throughout the United States. Now we can swab upon arrest, which is great.”
Refusing to submit to the testing is a fourth-degree crime, said Osmunsden. The charge of refusing would be added onto the suspect’s other charges. “It’s a crime,” said Osmunsden. The crime, 2C:29-11, Refusal to allow blood, biological sample to be drawn, also becomes effective Feb. 1.
Arrestees who were sampled after being charged and then found not guilty of those charges, or had the charges downgraded to a lesser charge not listed, can request their DNA sample be expunged from the national database.
“There is a procedure for them to have their sample removed,” said Super.
According to NJIS, the majority of states, including New Jersey, require the individual who gave the sample to initiate expungement.
Osmunsden said in his experience, DNA testing does work. Without the new law police must obtain a warrant to obtain DNA samples from a suspect who has not yet been convicted of a crime. “Now they have to submit it upon arrest.”
Dr. Douglas Hare, a scientist with the Federal Bureau of Investigation Laboratory and custodian of the National DNA Index System (NDIS) said obtaining DNA samples may be instrumental in solving cold cases.
“Absolutely,” stated Hare in a 2011 press release. “That demonstrates the power of CODIS. If you are able to obtain a DNA profile from a case that remained unsolved from years ago and place that profile into the system, there is a good chance you may get a hit because the offender may have committed other crimes and been required to provide a DNA sample.”
Increasing the number of profiles in both the state and national databases results in additional DNA profiles that could possibly be linked to unsolved crimes, Hare added.
“The statistics speak for themselves. As we continue to add more profiles, the potential to solve more crimes – and also rule out suspects who are innocent – continues to increase,” stated Hare.