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Mass. felons’ DNA test database has gaps

State fails to collect samples of 20,000

State officials have failed to collect the DNA samples of roughly 20,000 convicted felons, as required by law and dictated by the courts, leaving a gaping hole in the State Police DNA database, said state public safety officials.

The absence of the samples was discovered recently during the mandated updating of the state’s Criminal Offender Record Information database, and it raised concern among law enforcement officials that felons were evading the law and have been going unnoticed.

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The concerns have grown to the point that State Police have dispatched teams to identify the whereabouts of and, in some cases, arrest certain felons who have failed to provide their DNA samples, including Level 3 sex offenders.

Mary Elizabeth Heffernan, secretary of public safety and security, sent a letter to state probation officials and county sheriffs Thursday saying that many of the felons at issue were once in their custody and that the probation officials and sheriffs should help identify those who have failed to provide samples.

“Your assistance is imperative in addressing this public safety challenge in a timely and effective manner,’’ Heffernan said in the letter, which was obtained by the Globe.

She added in an interview, “We’re reaching out to these folks so that they can help us as we partner towards fixing the system, to make sure this doesn’t happen again.’’

State law requires that convicted felons, or juveniles adjudicated of a crime that would constitute a felony as an adult, provide a DNA sample within a year of their conviction, and they are told that by a judge when they are found guilty.

‘Though we may think we’re doing our proper part, is the system as a whole working?’

Michael Bellotti Norfolk County sheriff
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The samples are added to a State Police database that can be shared with other law enforcement and used in the investigation of other crimes.

But the state law, last revised in 2004, does not specify how to track the felons after their conviction and it does not list any enforcement mechanism, leaving a lack of uniformity that resulted in the unnoticed samples.

The Department of Correction obtains the samples of state inmates before they are released, and more than 96,000 samples have been entered into the State Police database. But it remains unclear how samples are collected in cases in which a felon is not sent to state prison, such as when they are sent to county jails for lesser crimes or sentenced to probation.

Norfolk County Sheriff Michael Bellotti, president of the Massachusetts Sheriffs Association, said the 2004 law was initially followed by confusion as to who was responsible for collecting the samples. But he said county jails, including his own, have since established a protocol with State Police to determine within days whether a sample is needed. Only rarely, such as when an inmate is released before that information is gathered, do samples go uncollected, Bellotti said.

Still, he acknowledged the need for a uniform process, among state prison, county jail, and probation officials to collect the samples, because of the block of missing samples.

“Though we may think we’re doing our proper part, is the system as a whole working?’’ Bellotti said. “That needs to be answered. Why are people falling through the cracks? We want to make sure that regardless of what we’re all doing, that there’s no way that this can continue to happen.’’

Heffernen also questioned whether felons should have been properly released from probation without submitting the required sample. State law calls for a punishment of up to six months in prison and a $1,000 fine for anyone who does not submit a sample.

“You can’t leave without giving this to probation,’’ Heffernan said. “We’re unclear as to why this happened. But we’re asking our partners to identify these people who need to give these samples.’’

Coria Holland, a spokeswoman for the Probation Department, said she could not comment on the number of samples that have gone uncollected without a better understanding of who is on the list and how the information was collected. She said in a statement, however, that her agency has worked with others including sheriffs and the State Police and has “facilitated the collection of thousands of DNA samples.’’ She said probation would support any revisions to streamline the process.

Heffernan’s office has been working with state district attorneys on a proposal to amend state laws so that DNA samples are collected right in the courthouse once a conviction occurs, through the use of a buccal swab.

Massachusetts is one of only four states in the country that does not collect DNA through the use of mouth swabs, a method that is less costly than through blood samples.

“If you’re looking for a flaw in the collection scheme, that’s it. It should have been done immediately,’’ said Worcester District Attorney Joseph D. Early Jr., president of the Massachusetts District Attorneys Association, after that group discussed the issue in a meeting Thursday. “It’s bringing the science to where it is today.’’

The association sent a letter to the Legislature’s Judiciary Committee on Thursday calling for the change in laws so that samples can immediately be collected through swabs, and a proposal is pending as part of the Senate’s new crime package. The association also called for more resources for the State Police Crime Lab to reduce the backlog.

Cape and Islands District Attorney Michael O’Keefe, vice president of the association, said that the use of swabs will also help speed up the collection process, saying such DNA databases have been a proven tool in investigating crimes.

“What we’re afraid of is we’re going to find some people in there who have committed some fairly serious crimes,’’ O’Keefe said. “We don’t want to be looking at a scenario down the road where people who could have been identified weren’t identified.’’

David Procopio, a State Police spokesman, said troopers with the Violent Fugitive Apprehension Section have worked in recent weeks to identify the felons who have failed to provide samples. He said 1,739 letters have been sent to felons warning them that they are in violation of a law, and that they could be arrested. Within weeks, 10,000 letters could be sent out to other felons once they are identified.

Procopio also said that a task force has conducted sweeps over the last three weeks in cities ranging from Springfield to Fall River to Lynn and have arrested felons who have not provided samples and who have outstanding warrants.

Of the 113 felons arrested, 57 of them are Level 3 sex offenders, Procopio said. Other felons are still being targeted, he said.

“We recognize it’s an important public safety mission, and we are confident that the plan we’re following will be successful,’’ Procopio said.

Milton J. Valencia can be reached at mvalencia@globe.com. Follow him on Twitter @miltonvalencia.
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