Proposal to Collect DNA Samples Sparks Opposition

Jan. 18, 2022, midnight ·

Senator Robert Hilkemann debates Tuesday (Photo by Fred Knapp, Nebraska Publiic Media News)
Sen. Robert Hilkemann debates Tuesday (Photo by Fred Knapp, Nebraska Publiic Media News)

Listen To This Story

A proposal to require DNA samples from people charged with certain crimes -- before they are convicted -- drew determined opposition in the Nebraska Legislature Tuesday.

The proposal by Sen. Robert Hilkemann from Omaha would require DNA samples from cheek swabs of people charged with violent crimes or burglary, before they are convicted. Hilkemann said the U.S. Supreme Court approved such a law in a 2013 case out of Maryland, and 31 states now have it on their books.

“This is a bill I believe will help Nebraska be smart on crime by using DNA to exonerate the innocent and identify individuals responsible for unsolved crime,” Hilkemann said.

Opponents like Sen. Megan Hunt disputed that.

“The proponents of LB496 claim that collecting DNA samples from people who are arrested – and these are people who are presumed innocent, who haven’t been convicted of anything – is going to help lead to solving unsolved crimes, (and) potentially even exonerating these people who are accused of crimes because they’ve been arrested. That assertion is not accurate in my opinion,” Hunt said.

Current Nebraska law requires DNA samples be collected after someone is convicted. To make the point that Hilkemann’s proposal casts the net too widely, Hunt proposed requiring DNA samples from everyone 19 years of age or older. Hilkemann urged his colleagues not to be distracted.

“Let’s not throw out things of testing everybody in the state of Nebraska. That’s not what this bill is about. This bill will make a safer Nebraska,” he said.

Hunt’s amendment was eventually defeated, 37-0.

Sen. Terrell McKinney opposed Hilkemann’s bill, citing the potential for abuse.

“I just think about how this can be abused by the police and the county attorneys to mass arrest individuals and charge them with crimes they probably didn’t do. But they’re charging them with these crimes in an attempt to collect their DNA, which isn’t out (of) the realm of thinking. I know many believe that couldn’t happen, but I disagree,” McKinney said.

McKinney argued the bill went too far by including burglary as a violent crime. Hilkemann countered the proposed threshold for collecting samples would be high enough.

“You have to work at creating a felony. This is not a matter of driving down Interstate 80 at 86 mile-an-hour and pulling over and getting your DNA (tested). We are looking for the violent crimes. That’s what this is all about,” he said.

Opposing the bill, Sen. John Cavanaugh cited the Fourth Amendment to the U.S. Constitution – words which are also in the Nebraska Constitution.

“The rights of the people to be secure in their persons, houses, paper and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall be issued, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the person or thing to be seized,” Cavanaugh said.

Hilkemann said the bill requires destroying the DNA sample if a judge rules there’s not probable cause to charge the person, and allows the record to be expunged if the charge is dismissed. And he said collecting more samples would help deter future crimes.

“People who are oftentimes arrested of crimes are also people who have done other crimes. Or that they may do other crimes. Or in the case of sometimes a rapist, we can get that rapist off the street before they have an opportunity to rape someone else while they’re going through the whole process,” he said.

But Sen. Machaela Cavanaugh, pointing to an estimate the bill would cost around $1 million over two years, said that money would be better spent on testing the backlog of untested rape kits from sexual assault survivors. And Hunt applauded Nebraska for not having passed a bill like Hilkemann’s.

“Why don’t we have a bill like this in Nebraska? Because in Nebraska, we still value personal liberties and individual rights and due process, and that people are innocent until proven guilty. And I hope that we keep it that way,” she said.

Sen. Wendy DeBoer said she’s struggled with what’s the right thing to do on the issue, although she praised Hilkemann’s motives.

“He’s bringing this bill to try to solve some crimes and to try to exonerate some people…and it will stop some crimes, potentially. We’ve seen in other states where it has. So that’s on the one hand. On the other hand, there are a great many things we could do to stop more crimes or to solve them, but we also want to live in a free society where we don’t all get called to the village square and given lie-detector tests every time a crime happens. So it seems to me there has to be a balance here between safety and freedom,” DeBoer said.

Last year on the first round of debate, the required minimum of 33 senators voted to cut off debate and 30 voted to give it first-round approval. But four or five senators were out Tuesday due to illness, leaving the outcome of second-round voting, expected Wednesday, in doubt.