Nebraska Gov. Pete Ricketts said the state will take “swift action” to obtain inmates’ DNA samples in light of a World-Herald report Sunday that revealed that 73 inmates have refused to comply with state law requiring felons to submit a DNA sample.
“I agree public safety is at risk if these DNA samples are not collected,” Ricketts said in a statement. “I understand our options to obtain these samples and will take swift action.”
He didn’t clarify what that action might be.
Some law enforcement officials, including Douglas County Attorney Don Kleine and Omaha Police Chief Todd Schmaderer, have called on the Corrections Department to immediately use force to obtain a refusing prisoner’s DNA sample.
“I believe, ultimately, we can,” Nebraska Attorney General Doug Peterson said Tuesday.
But, first, Peterson said he wants to give Corrections more time to obtain samples voluntarily through a methodical “plan for progressive discipline.” That plan involves misconduct reports, loss of privileges and the possible loss of good-behavior credit for prisoners who refuse to provide samples.
Peterson said he wants to be “diligent about allowing the progressive discipline process to work because that will give us a much better idea of where we stand with the inmates who are refusing. But I can’t estimate how quickly Corrections will be able to do that. They know it’s a priority for us.”
Members of the Nebraska Legislature, meanwhile, were exploring possible actions to investigate the state’s beleaguered prison system — burdened by overcrowding, understaffing, uprisings and inmates’ deaths.
State senators expressed dismay over the April 15 death of inmate Terry Berry. Berry, a 22-year-old check forger who had minimal time left in prison, was placed in the same cell with Patrick Schroeder, a convicted killer serving a life sentence. Schroeder now stands charged with first-degree murder after authorities allege that he strangled Berry with a towel.
Prison officials also placed inmate Christine Bordeaux in the same cell as Erica Jenkins — the cousin she testified against and helped convict of murder. Authorities allege that Jenkins beat Bordeaux to a pulp at the York women’s prison. Bordeaux survived with serious injuries.
And then there was Sunday’s World-Herald report: More than 70 inmates have refused to give their DNA over the past 20 years by simply saying no.
Sen. Bob Krist of Omaha, a member of the Judiciary Committee, said state officials have been trying to address “larger issues” of overcrowding and understaffing in Nebraska’s prisons.
“But just as we’re paying attention to the big things,” Krist said, “it seems that Rome is burning right under our nose operationally.”
Krist said he soon will propose a legislative resolution — calling on his colleagues to convene another special committee this summer to investigate the management problems that have, among other things, led to five deaths in Nebraska’s prisons in the past two years. The committee would be modeled after a prison investigative committee that held hearings and dominated headlines in 2014.
Sen. Ernie Chambers of Omaha said he supports the rejuvenation of the committee, in part to probe the five recent deaths and the placement of Bordeaux with the woman she testified against.
“People are being killed, they’re being assaulted, both inmates and employees, there have been riots, great destruction of property, inmates endangered when fires took place, and they’ve been kept in their cells with all the smoke,” Chambers said. “It’s just more than ought to be tolerated.”
Other senators weren’t so sure that a separate committee is needed.
Sen. Laura Ebke of Crete, chairwoman of the Judiciary Committee, said this week that she does not favor relaunching the prison investigative committee.
She said she thinks most of the eight members of the Judiciary Committee may opt instead to bring Scott Frakes, director of the Department of Correctional Services, before them to answer questions on prison issues.
Ebke expressed concerns about the DNA testing issue but said she’s inclined to believe that the Legislature can get answers without going to the lengths taken in 2014.
“I feel pretty strongly about this. I don’t want to overburden Corrections staff or micromanage too much,” she said. “I don’t want to go on a broad, sweeping investigation and take up more of their time at a time they’re trying to deal with multiple issues.”
State Sen. Paul Schumacher of Columbus said he also thinks the Judiciary Committee can tackle the matter. However, Schumacher said, many of these issues won’t be resolved without “biting the bullet” and addressing Nebraska’s overcrowded prisons.
“Investigating something that you already know the answer to isn’t terribly fruitful,” Schumacher said. “I don’t think it’s a new phenomenon in our prisons; it’s just a continuation of the same old stuff. It appears to me these most recent things should have been caught by common sense.”
Krist said the DNA issue smacks of the problems that caused state senators to commission the 2014 investigative committee. That investigation, initiated to look into spree killer Nikko Jenkins’ release, was expanded after The World-Herald revealed that prison officials had illegally set early release dates for 750 prisoners.
Senators noted similarities between the DNA refusals and the 2014 problems: violent offenders benefiting from prisons’ inaction; issues of where inmates are placed; and prison officials not acting decisively after a Nebraska Supreme Court ruling.
Ricketts said he has spoken with Frakes, Peterson and Kleine about the DNA collection issue.
The issue dates to 1997, when the Nebraska Legislature first required convicted sex offenders to submit a DNA sample. Then-Nebraska Attorney General Don Stenberg issued an opinion advising Corrections that, based on state senators’ comments, they could not use force to obtain an inmate’s DNA. However, two months later the Nebraska Supreme Court upheld Omaha police’s use of force to extract blood from a serial rapist.
Peterson said he had been aware of the concerns of the county attorney and police chief, who argued that the state should force the issue with inmates.
In early February, he met with Corrections officials, who convinced him that they should start with the “progressive discipline approach.” Some inmates have agreed to give samples as a result, although Peterson said he wasn’t sure how many.
“Frankly if you have to go to a use-of-force method, you’re placing your personnel at risk,” Peterson said.
Eventually, he said, the state may need to go to the courts to get an order to allow the use of force to obtain a refusing prisoner’s DNA.
Chambers, for his part, said he is against forced DNA collection from felons — a process that is allowed in several states. He called it the “crowning crime against humanity.”
The real crime, Kleine said, is a victim not knowing the identity of his or her attacker because Corrections has failed to collect an inmate’s DNA.
In their phone conversation, Kleine said, Ricketts indicated that he had been unaware of the DNA refusals.
“The governor was very adamant that he wanted something to happen,” Kleine said. “So that was encouraging.”