A bill that would have Nebraska law enforcement agencies collect DNA from people accused of some felonies barely cleared a filibuster to earn second-round approval in the Nebraska Legislature on Wednesday.Â
Proponents see LB496 as a tool for solving cold cases and exonerating innocent people, while opponents see it as government overreach that would exacerbate the already disproportionate impacts of the criminal justice system on people of color.
The state already collects DNA samples from people convicted of felonies.
Under LB496, law enforcement agencies would also swab the cheeks of people who are arrested and booked on suspicion of burglary and felonies such as arson, assault, sexual assault, kidnapping, murder and robbery.
In the latest version of the bill, their sample wouldn’t be tested or entered in the state database until a judge determines there’s probable cause to charge that person, or if they waive the hearing where probable cause is determined.
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If probable cause isn’t found, that person’s sample would be destroyed. A person could request that their records be cleared from the state database if their conviction is reversed or if the charge is dismissed. The State Patrol, which maintains the state's database, would have to purge DNA records and destroy samples when it gets that sort of request.
Similar laws have passed in over 30 other states. Amendments to Nebraska's bill brought it into alignment with a law that the U.S. Supreme Court deemed constitutional in its , according to sponsor Sen. Robert Hilkemann of Omaha.
“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 crimes,†said Hilkemann.
During debate, which stretched over three legislative days, Hilkemann presented examples of how the law has helped solve cold cases in other states. He also referenced a personal experience with unsolved crime: His second cousin, David Stevens, was killed in California in 1998, and it took years before the killer was brought to justice.
Opponents argued anecdotes aren’t enough to justify collecting DNA from people who will ultimately be found innocent.
“We have due process for a reason in this country, and it is to protect every citizen and their rights,†Sen. Machaela Cavanaugh of Omaha said. “And it is to protect the constitution. We shouldn’t be taking shortcuts.â€
Cavanaugh argued that any resources available for DNA testing should go toward chipping away at a backlog of sexual assault kits. The State Patrol's crime lab is still testing kits from 2020, she said.
Sen. Justin Wayne of Omaha raised concerns that a person may not be able to remove their records from a federal database if they plead down to a lower-level crime. The State Patrol provides records to the FBI for its Combined DNA Index System, where DNA profiles can be searched against each other.
Wayne, who’s a public defender, also said the burden for a judge finding probable cause is extremely low — and afterward, people may still be found not guilty or they can plead down to a lower charge. Sen. John Cavanaugh, also a public defender, estimated he had won just 1% of probable cause hearings, and Wayne estimated he’d won one out of a few hundred.
He and others also objected to the bill’s potential impact on people of color.
“If communities are overpoliced and study after study show that they’re overcharged, then the result of this bill is going to be an overcollection of certain people’s DNA,†Wayne said.
Senators voted 33-12 to end the filibuster, just hitting the 33-vote minimum, and voted 26-16 to give it second-round approval.Â
Whether LB496 has enough support to make it into law, though, seemed uncertain.
In Wednesday's debate, Wayne pleaded with colleagues who committed to getting the bill through this round but won’t vote for its final passage. He asked them to instead give the bill "a fast death." And he warned fellow Democrats that if they voted to end the filibuster, this would turn into "a long session.â€
"I'm just saying you can't be an ally when it's convenient," he said. He called voting to end the filibuster "playing with people's lives."
Sen. Anna Wishart of Lincoln was among senators who voted to end the filibuster, but not for the bill to advance. Wishart said that she was giving Hilkemann a “lifeline,†allowing him to work with the opposition to see if there’s a way forward.