A senator said Friday he would continue his push to greatly expand who is required to give DNA samples to the state database.
In February, Sen. Dick Sears, D-Bennington, chairman of the Senate Judiciary Committee, tabled S.10 after learning that the state forensics lab was stuck under a mountainous backlog, making any expansion impractical.
Under current law, a DNA sample is taken from everyone convicted of a felony in Vermont. The expanded program would include anybody convicted of a misdemeanor that carries a potential sentence of jail time. The change is opposed by a major civil rights organization.
The number of samples collected would zoom from an average of 2,000 a year to somewhere between 4,600 and 9,100 annually.
But Sears tabled the proposal after hearing there was a substantial backlog.
In January 2015, the lab had about 2,800 samples it had not yet processed.
Dr. Trisha Conti, director of the Vermont Forensics Laboratory in the Department of Public Safety, told the Senate Judiciary Committee on Friday that after furiously working to reduce the number of unprocessed samples, the lab has almost caught up.
By pulling three DNA casework analysts and a serology analyst (who screens criminal evidence for biological material) off their work for part of the time, and going over budget, the department processed and uploaded more than 3,300 samples into the state database by the end of last year.
The backlog has shrunk to 750 samples, Conti said. She anticipates the backlog will be down to 400 by the end of the month.
That prompted Sears to consider resuming work on the bill.
Conti said the lab expects between 100 and 150 samples to come in each month, which she called "doable to maintain." But, if S.10 passes, the lab would need roughly $75,000 more each year for lab materials and an additional staff member to get through the work, she warned.
Sears, long an advocate of utilizing DNA evidence, proposed the bill last year after a 2014 Vermont Supreme Court decision struck down a law that he pressed for in 2009 that required DNA samples be taken from suspects charged with a felony. Previous law required samples only from convicted felons.
In hopes of withstanding a constitutional challenge, S.10 draws on language in that court decision, which states that the "privacy interests of arraignees are stronger than those of convicted defendants."
Sears sees DNA as a critical tool for law enforcement. Not only can it be an important piece of evidence in investigating and prosecuting crimes, it can also exonerate people wrongly convicted, he said.
He would like the committee to resume discussion of the bill. As it goes forward, he said, he'll add a section to ensure that the bill goes before legislative appropriations committees to discuss the cost of the expansion.
Allen Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union, sees S.10 as part of an expansion of government programs that he finds worrying.
"When we start building surveillance systems, which is really what the DNA database is, for the purpose of people proving their innocence, we've really turned a corner that is not a good sign for the age old presumption of innocence that everybody is entitled to," Gilbert said.
In discussion, some committee members raised questions about DNA collection in light of the sometimes disproportionate penalties for certain offenses. Gilbert cited a statute that imposes a penalty of up to a year in prison and a $5,000 fine for mislabeling or otherwise misrepresenting maple products.
Gilbert offered other examples:
• "If you stop at the New Hampshire liquor store on I-93 in Hooksett, buy more than eight quarts of whiskey and bring them home to Vermont, get caught, prosecuted and convicted, you will have your DNA collected." He said bringing nine quarts of whiskey into Vermont carries a maximum penalty that includes a year in jail.
• "If you ignore the 'No trespass' sign on your neighbor's meadow and track rabbits or ski there, and you're caught, prosecuted and convicted, you will have your DNA collected." Trespassing carries a maximum penalty that includes three months in jail, he said.
Gilbert was relieved to see some senators question whether that crime warrants entry into the DNA database, but he said the ACLU has larger concerns about the legitimacy of the entire program.
"That doesn't cure what we think is the basic problem, which is an expensive expansion of something that just doesn't seem to cut it when it comes to privacy rights," Gilbert said.
DNA records could raise privacy implications for family members other than those who give the samples, because of shared genetic material, Gilbert said.
Sears said the opposition to expanding the DNA database surprises him. The appropriateness of penalties for certain misdemeanors is another issue, but one that shouldn't impede the legislation, he said.
"You can find the outlier and use that as a signal flag to run up that we shouldn't do the bill," Sears said. "I say we should do the bill and take care of the outliers."
In the meantime, Sears invited Gilbert to suggest how the penalties for mislabeling maple syrup should be amended.
"I'd happily try to attach it to that bill," Sears said with a chuckle
Senate Judiciary Committee Chairman Dick Sears, D-Bennington, speaks at a hearing.