For the past 20 years, Nebraska corrections officials have allowed more than 70 prisoners to defy state law — and potentially delay justice — by refusing to submit a DNA sample that could help authorities clear unsolved crimes.
The way the convicted felons have been able to get around submitting their DNA sample? By just saying no.
Under state law — and corresponding judges’ orders — all convicted felons are required to submit a DNA sample.
But if a prisoner says “no,” Nebraska prison administrators have, over the past two decades, done little to force DNA collection, other than writing up the inmates or attempting to extend their sentences.
Prison officials haven’t held the inmates down and swabbed the inside of their cheek. They haven’t taken the inmates in front of a judge to try to force the DNA collection. They haven’t sought obstruction-of-justice charges against the inmates for refusing to comply with the law.
Instead, they have moved on to the next inmate in the hopes that he says yes.
As a result, the resisting prisoners’ DNA doesn’t enter a database that could connect them to crimes across the state or country.
“We have a state law — and a court order in each case — that says convicted felons shall provide a DNA sample,” Douglas County Attorney Don Kleine said. “I don’t know how much more clear that can be. For the state to not collect it ... it’s tremendously frustrating.”
Corrections officials last week did not directly address why they haven’t forced DNA collections. Their reluctance appears to be rooted in a 1997 Nebraska attorney general’s opinion that said state lawmakers hadn’t authorized forced DNA collection.
Any reluctance is misguided, Kleine said. A subsequent Nebraska Supreme Court ruling — released two months after the 1997 opinion issued by then-Attorney General Don Stenberg — upheld Omaha police’s use of force to extract blood from a serial rapist who refused to give his DNA.
Despite that ruling, the state hasn’t sought to forcibly obtain any inmate’s DNA.
Seventy-three Nebraska prisoners — from gunmen to sex offenders — have refused to submit their DNA samples.
In fact, until recently, Nebraska prison staff gave incoming inmates a form asking them if they would submit a DNA sample through a blood draw or a cheek swab. On the form, inmates had a third choice — a box that they could check that indicated: I don’t want to give my DNA.
The revelation of the DNA refusals comes as state senators have contemplated reopening a committee to investigate chronic problems that have plagued Nebraska prisons — overcrowding, understaffing, inmate uprisings. That committee dominated headlines in 2014 after a World-Herald investigation revealed that prison officials had ignored two Nebraska Supreme Court rulings and set early release dates for more than 750 prisoners, including gun felons, habitual criminals and child rapists.
The DNA issue shares patterns with the early-release debacle.
It involves the state’s most violent felons — prisoners who, authorities believe, might have something to hide.
And, similar to the early-release scandal, it has been marked by inaction in the face of a Nebraska Supreme Court ruling.
That has led prosecutors and crime victims to question who is in control — inmates or the people who guard them.
A state law passed in 1997 says that sex offenders “shall” submit their DNA samples — and shall pay a fee to have their DNA collected. Later in 1997, the Nebraska Supreme Court upheld law enforcement’s use of force to collect a DNA sample from the Omaha serial rapist.
Then, in 2010, the DNA collection act was expanded to include all convicted felons — and specified that the DNA samples are supposed to be collected upon the inmates’ entrance into prison. The statute further says that no inmate shall leave prison “unless and until a DNA sample has been collected.”
Corrections spokeswoman Dawn-Renee Smith — answering questions posed to Corrections Director Scott Frakes — provided a written statement: “The Nebraska Department of Correctional Services is committed to collecting DNA samples pursuant to law.”
Smith did not directly address why Corrections hasn’t forced DNA collections over the past 20 years.
Corrections officials, she said, order inmates “to submit to a swab or blood draw.” Inmates who refuse “may receive multiple misconduct reports ... may be subject to discipline and loss of privileges,” Smith said. They also may lose their good-time credit for behaving — a day off for every day served.
However, any pressure on the inmates hasn’t worked to obtain the DNA of those 73 prisoners. In turn, Kleine said, justice undoubtedly has been thwarted for victims reeling from rapes, assaults, shootings or other unsolved crimes.
Kleine and Omaha Police Chief Todd Schmaderer have urged state officials to take prisoners’ DNA with reasonable force, if need be. Such a process — known as collecting a buccal swab — would amount to using a Q-tip to rub the inside of a prisoner’s cheek.
Katherine “Kadi” Knight can attest to the power of that simple process.
In 2013, Anthony Vaughn was on probation for burglarizing the home of a woman who served as his son’s Bible study teacher. Vaughn had cast the burglary as his desperate attempt to get money for drugs.
Authorities soon would come to suspect he had a more sinister motive.
As part of his probation, he was required to submit to a cheek swab. The Nebraska State Patrol inserted his DNA profile into a database and connected Vaughn to the sexual assaults of Knight and four other Omaha women from 1999 to 2009.
Authorities also concluded that the burglary that landed him on probation was more than likely his attempt to victimize a sixth woman, the Bible study teacher.
Vaughn, 45, is serving up to 70 years in prison.
For Knight, who was raped in 2005, the collection of Vaughn’s DNA ended eight years of angst.
“It’s awful,” she said. “You have no idea — he could be standing next to you, waiting in line at the grocery store. He could still be watching you. It took years to get myself to stop thinking that way. It’s no way to live.”
Knight calls it “unconscionable” that state prison officials have allowed inmates to simply say no.
She wonders how many prisoners have gotten out of prison without giving their DNA.
“Someone needs to ask (prison officials), ‘How would you feel if this was your daughter or your sister or your loved one living their lives scared to death?’ ” she said. “They haven’t collected it because of what? The inmates said, ‘I don’t wanna?’ ”
Probation officers — such as the ones in Vaughn’s case — and parole officers are much more likely to get compliance. The reason: They can attempt to revoke probation or parole if prisoners refuse to give their DNA.
But step inside Nebraska prisons, and officials are reluctant to force DNA collections from inmates.
The reasoning is threefold: 1) legal opinions given to them by the State Attorney General’s Office; 2) state senators’ comments while passing the DNA collection law; and 3) a ruling that disallowed their use of extra prison time to gain compliance.
Nebraska attorney general staff have long advised Corrections that they cannot take DNA by force.
Soon after the DNA collection law was passed in 1997, then-Nebraska Corrections Director Harold Clarke asked the Attorney General’s Office: Can we force inmates to submit their DNA?
In an Oct. 10, 1997, memo, Stenberg and Assistant Attorney General Linda Willard, now retired, traced the legislative history of the DNA collection act and concluded: “It is our determination that the Legislature has not authorized the use of physical force in obtaining these DNA samples.”
Stenberg and Willard noted that state senators had modeled Nebraska’s DNA collection law after Pennsylvania’s — with one notable exception. Senators “removed” a portion of the law’s wording that “permitted the use of reasonable force” by law enforcement or Corrections. Then-Sen. Kermit Brashear of Omaha, a former chairman of the Judiciary Committee, said at the time that the committee removed the language so “permission to use reasonable force no longer exists.”
“If the subject (prisoner) refuses and will not permit,” Brashear said, “then Corrections and law enforcement personnel will have to proceed otherwise.”
For more than a dozen years, “proceed otherwise” meant do little. Meanwhile, other states, such as Pennsylvania, developed a several-step process that culminated in forced collection, if necessary. Still others, such as Massachusetts, made it a felony if a convict refused.
Nebraska took a different route.
In 2010, the Nebraska Legislature expanded the collection practices to all convicted felons — past or present. The law included a penalty for not providing DNA: The convict would forfeit his good time. In most cases, that meant he would double his sentence.
It didn’t take long for inmates to challenge it.
In 2011, George Shepard, a twice-convicted sex offender from Omaha, refused when Corrections officials asked him to submit a DNA sample.
Shepard had been convicted of sexually assaulting a 3-year-old girl in his Elkhorn trailer in 1990.
When Shepard refused to give his DNA, Corrections informed him that he would have to serve all of his 50-year sentence. But if he gave the DNA, he would get the typical day off for every day served — and his sentence would be 25 years.
Shepard sued — claiming the loss of 25 years of good-behavior credit was an after-the-fact sanction and, thus, was unconstitutional.
Shepard won, in part. The high court said Corrections could not penalize Shepard with additional prison time because that penalty was added in 2010 and wasn’t in existence when Shepard was sentenced. In effect, Corrections can extend sentences only of those inmates who entered prison after the 2010 law and have refused to give their DNA.
But the high court did not rule out Corrections collecting Shepard’s DNA. “Requiring a convicted person to submit a DNA sample does not violate” the U.S. Constitution, the ruling said.
In 2015, Shepard left prison without giving his DNA. Court filings indicate he currently resides at the Lincoln Regional Center, though it’s not clear for how long.
His case wasn’t the only time the Nebraska Supreme Court asserted the state’s right to obtain convicted felons’ DNA.
In 1994, Omaha resident Thomas Freeman refused an order requiring him to provide blood or saliva samples. So, acting on a judge’s order, authorities physically held him down, stuck a needle in his arm and extracted his blood.
Freeman appealed — arguing that police violated his rights.
In 1997, the Nebraska Supreme Court rejected his appeal, ruling that, under state law, authorities had every right to take a DNA sample.
It turns out that Freeman had a reason to refuse. DNA tests showed that Freeman had raped eight women in Omaha in 1993. He now is serving a 100-year sentence.
Kleine, who helped prosecute Freeman, said the case proves the point: Guilty parties, especially prisoners, have motive to hide their DNA.
Kleine said he’s baffled as to why the Nebraska Attorney General’s Office hasn’t adjusted its stance since the Freeman ruling. The 1997 ruling upholding the use of force came out two months after the attorney general’s opinion that force can’t be used.
“If the (Nebraska) Supreme Court said you can hold somebody down and take their blood,” Kleine said, “certainly you can hold them down and take a cheek swab.”
Now, Kleine wonders how many of the refusing prisoners have been released without giving their DNA. Smith, the Corrections spokeswoman, said one inmate refused, lost all of his good-time credit, finished his sentence and has been released “to a federal detainer.” It wasn’t clear whether that federal case was criminal or immigration-related.
Corrections’ account isn’t complete. As mentioned, Shepard also left prison without giving his DNA.
It is not clear if others have. Smith would not identify any of the prisoners who have refused, saying it’s considered part of the inmates’ confidential file.
Kleine became aware of the DNA stalemate when he inquired about collection efforts for a sex offender suspected in other crimes.
Waiting on that DNA sample, Kleine called the Nebraska State Patrol, which oversees the statewide DNA bank. Patrol officials told Kleine they had received no DNA from the sex offender.
Kleine contacted state prison officials. They told him that they couldn’t collect the DNA for a simple reason: The inmate had refused.
So Kleine and Schmaderer last year contacted Nebraska Attorney General Doug Peterson — urging Peterson to advise the Nebraska Department of Correctional Services to follow the law.
Peterson, who didn’t take office until 2015, has since told the two he is working on the issue, according to Kleine. The attorney general reportedly advised Corrections to stop providing incoming inmates with the form that allows them to check a box to opt out of a DNA test — something Corrections used for years but now does not.
A spokeswoman for Peterson said the office was busy and couldn’t provide comment.
To be sure, the estimated 73 inmates who have refused represent a minority.
State officials have collected 37,000 samples from prisoners, parolees and probationers over the past 20 years. And those samples have helped law enforcement agencies solve 408 cases, according to data provided to a national DNA database.
However, Kleine argues, there’s little excuse for state prison officials to not have 100 percent compliance. He noted that DNA doesn’t just connect a person to a crime; it can serve to free others. Nowhere was that more evident than in the Beatrice Six case, in which a DNA test of an Oklahoma man cleared six people who were falsely convicted of an elderly woman’s murder.
“DNA is such a tremendous forensic tool — it not only implicates, it can exonerate,” he said. “It’s unbelievably powerful.”
But only if it’s collected, Kleine said.
Corrections’ practice of extending the sentences of recently incarcerated inmates, Kleine said, doesn’t accomplish the law’s goal: solving crimes through DNA collection. He noted that some of the affected inmates already are serving life sentences, or close to it — so they have little incentive to comply.
He questions why Corrections would wait — and make victims wait.
“The law doesn’t allow (prisoners) to hide their DNA for years before we get a sample,” Kleine said. “When Corrections says, ‘We’re not going to make you submit,’ it’s letting the inmates control the system. That doesn’t make any sense to me.”
Nor does it to Knight, the 2005 rape survivor.
“They have the chance to bring peace of mind to dozens of victims,” she said. “It’s baffling that this isn’t being done just because the inmates are refusing. It makes you wonder who exactly is running the show.”
World-Herald staff writers Alia Conley and Jeffrey Robb contributed to this report.