The DNA failure that’s letting predators slip through the cracks

Key takeaways:

• Millions of DNA samples remain uncollected despite legal mandates: States like California are missing up to 2 million lawfully owed DNA samples, weakening the utility of CODIS and impeding investigations.
• Failures in collection stem from human and systemic breakdowns: Poor training, outdated technology, lack of tracking responsibility, and early releases contribute to widespread noncompliance.
• Unfollowed CODIS hits are a massive wasted opportunity: Some agencies fail to act on database matches, despite the investigative lead being handed to them — a clear breakdown in follow-through.
• Inconsistent laws across states undermine national efforts: DNA collection triggers vary widely — some states require it at arrest, others not until conviction — creating gaps exploitable by offenders.
• Fixes exist, but few are implemented: Audits, rapid DNA booking stations, cross-agency accountability, and use of SAKI funding can close the gap, but most jurisdictions are not acting.

By Detective Deputy Chief (Ret.) Tony Levatino

Yes, monsters do walk among us. Serial killers, murderers, rapists, career criminals, and those who have and continue to prey upon the innocent are all around. Can you point them out? I bet you cannot. One thing these individuals have in common is they may eventually fall through the cracks of our criminal justice system or re-offend. A study by the Prison Policy Initiative concluded that 68% of people released were re-arrested within three years. [1]

There are countless examples of heinous crimes committed by previously arrested or convicted offenders who we later discover should have had their DNA collected and processed but had not. The absence of their DNA profiles from criminal databases enables them to commit crimes with impunity and evade detection for past offenses.
Despite systemic weaknesses, society can hold these individuals accountable for their current alleged and future crimes through collecting, processing and databasing their DNA.

What is lawfully owed DNA?

Lawfully owed DNA (LODNA) is the collection of an offender’s DNA due to statutory authority or a legal process such as arrest or conviction for a crime specified in the penal code. Offender DNA profiles are processed by state or federal government laboratories, stored in a State DNA Index System (SDIS), and eventually uploaded via a software program called the Combined DNA Index System (CODIS), which is managed by the FBI. Profiles are ultimately retained within the National DNA Index System (NDIS), which is divided into indexes containing over 25 million offender, arrestee, and forensic DNA profiles. [2]

Various agencies within the criminal justice system, as outlined in state and federal law, are responsible for collecting DNA samples. For most states, collecting a sample is the responsibility of local and county jails, as well as state penitentiaries. There are corresponding collection points for the federal system.

No matter where the collection point occurs, if a criminal history search reveals an offender’s DNA is not already in CODIS, and if the offense is listed in the statute as requiring collection, the inside of the offender’s mouth is swabbed (buccal) using an approved DNA sample collection kit. This kit documents identifying information, and following processing, the resulting DNA profile is uploaded to the National DNA Index System via the CODIS software.

Why are there millions of missed DNA collections?

The travesty of this process, and thus this article’s subtitle, is its inefficiencies and inconsistencies. Conservative estimates are that each state has missed approximately 40,000-50,000 Lawfully Owed DNA Samples. [3] If this number is shocking, more alarming is California’s statistics. According to an audit of LODNA samples by the California Department of Justice, as of February 2011, 1,049,057 people in California have been convicted of a felony offense but have yet to provide a DNA sample, as required by the Penal Code. [4]

Of that number, 978,639 are previously convicted or adjudicated felons who escaped collection. The database law does not require those who have completed their sentences to provide DNA unless they are later convicted of at least a misdemeanor. Furthermore, these numbers include 64,529 sex and arson registrants who are required to provide a DNA sample at any time and 9,000 samples that were improperly collected and the laboratory was unable to obtain a DNA profile.

California’s DNA collection rates since 2011 have not improved, especially during the COVID pandemic when jailers were not motivated to be in prolonged contact with an offender. The rapid release of offenders during this period further contributed to the missed collection process. Conservative estimates are that California has missed approximately 1.7 to 2 million samples. What is most disappointing is that no other audit has been conducted in 14 years, and no systematic program was instituted to recollect the missed samples.

Millions of dollars in grants have been allocated to laboratories and law enforcement to address the backlog of untested sexual assault kits. The federal Sexual Assault Kit Initiative (SAKI) funds the processing of forensic evidence, associated investigations, prosecutions and victim advocacy, and it is unconscionable to think that approximately half of all these case yield an unknown presumed offender DNA sample. Still, millions of potential suspect samples are missing. Fortunately, SAKI allows funding for auditing missed DNA collections and creating a task force to obtain DNA samples from offenders; however, only a 15 agencies have successfully applied for the grants to date despite there being almost 100 active SAKI grantees across the country [5].

The impact of human factors in missed collection of DNA

Compounding missed collections are human factors. Factors include poorly trained jail intake personnel on the procedures for collecting DNA properly, a lack of inventory for state-authorized collection kits, inadequate collection techniques that do not yield a complete DNA profile, and, sadly, a lack of motivation and diligence.

Technological inefficiencies also contribute to missed collections. Offenders processed upon arrest must be identified as thoroughly as possible to ensure that their proper name and birth date are accurately recorded on the DNA collection envelope, fingerprints are captured, and their criminal histories are checked through Automated Fingerprint Identification Systems (AFIS). Further collection is unnecessary if a criminal history search reveals that DNA has already been uploaded to the national database.

The issue arises when fingerprint or criminal history systems are inoperable. Processes favoring the early release of offenders oftentimes require the release before fingerprint or criminal history systems come online. Many states have antiquated AFIS terminals and criminal history systems, and a software update by one of the numerous terminal vendors can cause interoperability issues, resulting in collections being brought to an abrupt halt.

Very few states assign responsibility for tracking missed collections, which is an issue. In every state, arrests and convictions are recorded in state and federal criminal history systems. These could be cross-matched with State DNA Index System records of the profile upload to CODIS; however, this is not routinely done, and the computer systems are often incompatible.

During one review with a laboratory, the lab director mentioned that she routinely sends warning letters to the sheriff’s offices regarding the exact number of missed collections. When queried if she had any sense of responsibility for ensuring collections were done, she replied, “I only process what the sheriffs send me.”

Evidence with the most significant potential to link the offender to the crime is DNA obtained from a Sexual Assault Kit (SAK), which collects semen, saliva, skin, blood, hair and reference samples from the victim. During DNA processing, the offender’s DNA is separated from the victim’s and eventually uploaded into the National DNA Index System to match forensic samples from crime scenes and the Convicted Offender Index for immediate identification. If the DNA matches previously uploaded DNA, the laboratory submitting the profile is notified, which notifies the investigating law enforcement agency of a “CODIS Hit” and creates an “Investigative Lead.”

The law enforcement agency will still need to collect another DNA sample from the offender to be processed by the laboratory. Sadly, a statistically significant number of law enforcement agencies fail to follow up on CODIS Hits. An anonymous source provided an unsolicited internal audit from a medium-sized police department revealing that over 400 CODIS Hits were not followed up on. Imagine the waste of resources in investigating the case, processing the crime scene, conducting laboratory analysis, and uploading the results to CODIS, only to ignore the potential lead completely.

Incongruent state laws related to missed DNA collection

Other factors contributing to missed DNA collections are poorly written laws or frequent amendments. For example, the Alaska State Patrol was codified as legally responsible for DNA collections. However, a separate agency, the Alaska Department of Corrections, processes arrestees at intake, and consequently, neither collected samples. In 2022, Alaska Governor Dunleavy announced the discovery of 21,000 missed collections and changes in procedures to ensure timely collections, as well as a program to collect outstanding samples from offenders. [6] Similar programs have been implemented in Washington, Texas, and Ohio, yielding excellent results with hundreds of CODIS Hits.

All states agree that DNA is a valuable tool for solving crimes; however, the laws and procedures for collecting DNA vary from state to state, which is both disappointing and frustrating. State law will specify the exact crimes for which DNA collection is required. DNA collection laws fall into several general categories:

1. Collection and processing upon conviction.
2. Collection and processing upon arrest/booking.
3. Collection upon arrest and processing upon filing criminal charges.
4. Collection only upon the issuance of a search warrant or Grand Jury Indictment.
5. Collection upon release to a parole program.
6. Collection upon sentencing.
7. Collection upon release to a probation program.
8. Collection before pretrial release.
9. Collection upon prison intake.
10. Collection upon prison release.
11. Transfer from a parole or probation program in another state, which did not require DNA collection, to a state that requires collection and processing.
12. Commitment to a mental institution.

The variations in state laws regarding collecting and processing Lawfully Owed DNA are sometimes due to misunderstandings or misconceptions about DNA. Additionally, some restrictive states have privacy restrictions, mistrust of law enforcement, or concerns about retaining DNA containing genetic information within a governmental database. Most state DNA collection laws are decades old and have not been updated since their inception. They were enacted when the use of DNA for criminal identification was in its infancy. These laws must be modernized to keep pace with technological advancements, the increasing political tolerance of DNA collection, and the public’s expectations regarding law enforcement’s capabilities to solve crimes.

Victim advocacy

Victim advocates are our warriors on the battlefield, educating legislators, law enforcement and the public to increase the effectiveness of DNA databases, expand the list of crimes requiring DNA collection and highlight the inefficiencies of DNA collection.

Victim advocates and organizations for improved DNA laws and expansion include Ilse Knecht from Mariska Hargitay’s (Law and Order: SVU) Joyful Heart Foundation [7], Ashley Spence from the DNA Justice Project [8], Jayann Sepich [9], who is a DNA Justice Project board member and a long-standing advocate responsible for “Katie’s Law,” resulting in 30 states collecting DNA upon felony arrest, Julie Weil from the Not Just Me Foundation [10], and retired detective Lindsey Wade [11] from the Tacoma Police Department who identified gaps in DNA collection laws while investigating horrific homicides.

They continually seek opportunities to engage with local, state, and federal representatives and advise them on improvements to state and federal DNA laws. The effectiveness of advocates cannot be understated, and they do so out of a passion to prevent further victimization.

Victim advocates working with lobbyists have been able to dramatically impact criminal justice by establishing DNA databases, expanding the list of crimes requiring DNA collection, securing funding for processing crime scene samples, and addressing the backlog of Sexual Assault Kits.

The role of technological solutions such as Rapid DNA

Science and technology have intersected to allow the collection and processing of arrestee’s DNA during the booking process. Rapid DNA is a fully automated process that develops a DNA profile from a cheek swab (buccal swab), which can be processed upon the offender’s intake. These FBI-approved “Booking Stations” send the DNA profile directly to the state’s CODIS laboratory, which then transmits it to the National DNA Index System. The system first compares the samples with the DNA Index of Special Concern (DISC). This index contains the most serious of offenses within the entire database and includes homicides, kidnapping, sexual assaults and acts of terrorism.

Booking stations ensure that the offender’s DNA has been collected, as they will not allow an intake officer to complete the booking process until after collection and processing. Unfortunately, booking stations are only available in states that have modified their laws to authorize the collection and processing of DNA upon arrest. As of this date, only Louisiana and Florida have established programs.

What is needed is a nationwide call to action that allows for:

1. The collection and processing of all felonies and serious misdemeanors upon arrest
2. Authorization to establish Rapid DNA Booking Stations
3. Funding and affixing responsibility for the tracking of Lawfully Owed DNA samples to the state CODIS laboratory
4. Continued funding for audits and task forces to address missed LODNA collections
5. Mandating the establishment of CODIS Hit Notification Systems to ensure law enforcement agencies follow up on database matches.

Conclusion

The public is unaware of what happens behind the scenes within the criminal justice system. They rely on practitioners as responsible stewards in solving crimes and swiftly apprehending offenders. However, when those charged with these responsibilities fail to fulfill their duties, do not work towards system improvements, and blame others for their failures, individual victims are not served, and society suffers as a result.

References

1. Prison Policy Initiative (2025, May 6). Reentry and recidivism.
2. Federal Bureau of Investigations (2025, May 6). CODIS-NDIS statistics-LE.
3. Salinas O. (2024) Eligible offender samples are missing in CODIS: A statewide approach to performing a lawfully owed DNA census. Journal of Forensic Science, 69, 1758-1770.
4. California Attorney General (2025, March 11). BFS DNA frequently asked questions. California Department of Justice.
5. SAKI Sexual Assault Kit Initiative (n.d.) Lawfully Owed DNA.
6. State of Alaska (2024, February 14). Department of public safety begins owed DNA collection. Alaska Department of Public Safety.
7. Joyful Heart Foundation (n.d). Joyful Heart Foundation Homepage.
8. DNA Justice Project (n.d). Prevent Tomorrow’s Victims.
9. DNA Justice Project (n.d). Jayann Sepich.
10. Not Just Me Foundation (n.d). Not Just Me Foundation Homepage.
11. Calams S. (2024, December 10). A day in the life of a cold case detective. Police1.com

About the author

Detective Deputy Chief (Ret.) Tony Levatino served with the Santa Ana Police Department in California for over 30 years. He is an expert in implementing Rapid DNA into the investigative workflow, victim identification and establishment of booking stations. He founded the non-profit International Association of Technology Advocates, representing crime victims by assisting law enforcement agencies in implementing advanced technologies to solve, prevent and deter crime. He is the author of the soon to be released book “Rapid DNA to Z: The Complete Guide to Law Enforcement Rapid DNA Programs,” and can be contacted at tony.levatino@justice-advocates.org.