Set aside the states' right argument for now. I'm more interested in the question of whether constitutional protections for DNA testing would, in fact, result in lots of frivolous demands and endless appeals.
If there were, literally, no restrictions at all, maybe that's what would happen. Maybe every con with time on his hands would demand test after test just for the hell of it. Maybe. But if the court required even a minimal showing of cause, wouldn't frivolous requests dry up? What's the point, after all? If you're guilty, then you know perfectly well that DNA isn't going to get you off the hook. So why bother?
That's why I've never found this argument very persuasive. Prisoners who know they're guilty have little incentive to demand DNA tests. Conversely, though, prosecutors have loads of incentive to deny DNA tests, even -- or maybe especially -- in cases where it might well prove wrongful conviction.
Actually, I'm told that a shocking number of prisoners request DNA tests that confirm their guilt; they have nothing to lose, and apparently want to gamble on the slim possibility of a miracle exoneration. But this seems irrelevant to me. If they get a DNA test and it proves them guilty, we've lost little time or money. If they get a DNA test and it exonerates them, we've set an innocent man free. DNA tests would have to cost $1 million apiece for me to consider that a bad bargain.
It is, of course, a bad bargain for a justice system that suddenly reveals how many innocent men prosecutors have sent to death row, and if I were a prosecutor I've no doubt I could find any number of excellent reasons that we should not double-check my work. But making prosecutors feel better about themselves is not a legitimate goal of criminal policy.
Give them all the DNA tests. Innocent men should not be in jail.
Prosecutors shouldn't be threatened; just because you're good at putting people away doesn't mean your wrong convictions are you deliberately doing evil, although the Obama-left-wing nuts will use the small percentage exonerated to show "racism" or whatever agenda they want to set.
DNA testing is the best thing to happen to criminal justice and paternity testing--mainly, men in general. DNA will set more men free from the bondage of taking care of someone elese's kid and paying for someone else's crime than the Civil War emancipated people.
Megan,
The problem with this is that the state of the evidence. How often is the evidence store room a non-climate controlled disorganized mess? How degraded is the dna sample from 10 or 20 years ago? When the test comes back and says that the prisoners dna does not match the dna from the evidence store room does this mean the person is innocent or does this mean the test is faulty due to (now) damaged evidence?
I don't know the answer to this question. But I would ask your readers: what percentage of prisoners freed by DNA tests are, in fact, innocent?
R
I assume that this proposal deals exclusively with people who were incarcerated before DNA testing became available.
Today, the defense has access to any DNA evidence and can have its own experts conduct reviews and even do their own tests if the sample is large enough.
My understanding is that DNA evidence is available in a small minority of cases to begin with.
@Robert
You're seem more worried about false negatives than false positives. Those who feel that keeping innocent men on death row are more worried about false positives.
What is a 'false positive'?
Either the DNA is a match, it isn't a match or the sample is too small to get a definitive answer.
This idea that death row is full of innocent people is totally wrong. There have been under 300 people exonerated through DNA testing out of millions of convicted over several decades. That is a pretty good batting average if you ask me.
I want to agree with your main point -- I personally think that prisoners should have full access to evidence, and agree that the possibility of setting one person free should outweigh most concerns about waste and abuse.
However, I can't help thinking about the fact that at the moment, there are literally hundreds of thousands of rape kits in this country that haven't been tested. In some places (LA, most notably) the backlog is so long that the statute of limitations may expire before the test is complete.
Until we're at a point where DNA testing of forensic evidence can happen in a timely manner, I think it's reasonable to institute some restrictions on requests for DNA testing.
I think the number of exonerations through DNA testing will decline as time goes by. DNA testing hasn't been available all that long. During the trial the police and prosecutor have every motive to test DNA. If it comes out positive it helps make the case airtight.
One of Kevin Drum's commenters claimed to be a DA, and said that "all but six states currently give the defendant a right to post-conviction testing."
If that's so, then let time take care of it. Eventually those states will get on board. What shreds of local self-government we have left deserve protection.
"Actually, I'm told that a shocking number of prisoners request DNA tests that confirm their guilt"
By who? Your dad, after he's gone on about unions?
you're not even pretending to try now.
@anon
No DNA test is going to return a 100% result, there's always some probability (hopefully very small) of a false positive.
What is very small?
From Bruce Schneier:
http://www.schneier.com/essay-108.html
Oh, and (same article)
Posted by Anon/12:37 PM
"This idea that death row is full of innocent people is totally wrong. There have been under 300 people exonerated through DNA testing out of millions of convicted over several decades. That is a pretty good batting average if you ask me."
Wrong population.
It's 300 people exonerated *out of those who were tested*. Assuming your 300 number is correct.
Now, how many were tested, and what would the number of exonerations be for the total prison population if they were all tested?
"Actually, I'm told that a shocking number of prisoners request DNA tests that confirm their guilt"
By who? Your dad, after he's gone on about unions?
Look at the Innocence Project. They get huge numbers of applicants from convicts claiming they were wrongfully convicted. They review those claims to find the ones that look most promising and, even from that subset, most turn out to be guilty.
Or look at all of the trivial pro se complaints filed by prisoners. There are a lot of criminals out there who will use any opportunity to waste other people's time and annoy the system that incarcerated them. That's what happens when you a have group of very unpleasant people with a lot of free time.
Using DNA tests to help free wrongfully convicted prisoners can be a worthwhile use of time and money, but Kevin is still terribly naive to think that the system won't be abused by people who really are guilty.
I believe the percent of cases that involve DNA to begin with is quite small, that is the root of the so called 'CSI effect' that prosecuctors talk about where juries today won't convict on anything other than DNA evidence because TV has told them that the criminal will always leave scientifically verifiable and testible evidence behind....
Also, as DNA testing gets more and more sophisticated the liklihood increases that irrelevant DNA may be found...e.g. if you were murdered in your own home the DNA of others who live in the home or visited the home will be found even though they didn't commit the crime.
I think a distinction should be made in terms of testing to see if sample A which the prosecutor said at trial was prisoner A really matches prisoner A and willy nilly allowing for all evidence to be DNA tested..this will raise all kinds of new avenues for theories and appeals.
Kevin Drum wrote: That's why I've never found this argument very persuasive. Prisoners who know they're guilty have little incentive to demand DNA tests. Conversely, though, prosecutors have loads of incentive to deny DNA tests, even -- or maybe especially -- in cases where it might well prove wrongful conviction.
Kevin Drum should try conversing with a judge's clerk from criminal court before falling back to this sort of logic. As FXKLM just noted, many prisoners have nothing better to do than write letters, and no disincentive from doing so since the state pays for the materials, the law requires all requests to be reviewed, and the worst possible outcome is that the request will be denied.
The result is a very large volume of paper in circular rotation through the court appealing every possible technicality (and more than a few impossible ones) relating to law, procedure, and humane treatment. Many do not follow the correct filing procedure can be returned with a form letter notation to resubmit under the correct filing procedure, but those that pass through that first screen then have to be researched under the relevant question of law and a formal response issued.
Some sort of mechanism certainly needs to exist in order to protect the innocent, but the majority of what passes through this system is either retaliatory abuse of the process, or the the irrational efforts of substance abusers who have a touch of the drain bamage.
You might cut down on the frivolous requests if you publicized the possibility that DNA results of requested tests could and would be used to check DNA recovered in other crimes. The innocent, and even those who have committed only the one offense, would go forward. But those who had other skeletons in their closets would be at least somewhat deterred.
While in general I favor providing DNA testing where possible, I do agree that it is likely that at least some convicts who are in fact guilty will request such testing. There is a purely rational case for requesting such testing -- there is a slim chance that the test could come out wrong, and what do I have to lose? In addition, many convicts are narcissists who are able to conceive of themselves as victims of unjust persecution notwithstanding their actual knowledge of their own guilt. (To put it more concretely, if you gave OJ Simpson a polygraph test and asked him whether he was guilty of killing his wife, I'd bet he'd pass, and not because he didn't do it.)
There was a case in Massachusetts a few years ago where an African-American veteran who had been convicted of rape in a trial tainted by racism had waged a long campaign to obtain DNA testing. That effort was supported by a number of politicians and leaders of the legal community in Masscahusetts, across the political spectrum. The test results implicated the defendant.
There was also the case of the guy who was executed for raping and kiling his sister in law who died proclaiming his innocence. When the governor finally agreed to DNA testing it was widely believed this would be the first proven case of an innocent man who was wrongly executed..except that oops, it confirmed he was guilty.
wiredog's second comment hit things on the nose. Let's highlight the most important line in the comment:
For example, even highly accurate medical tests are useless as diagnostic tools if the incidence of the disease is rare in the general population.
Unless you have some filters to cut down on the number of people who are getting tested, you are far more likely to wrongly release a guilty criminal, than you are to free an innocent.
Given the high rate of criminal recidivism, that means you are highly likely to create many innocent crime victims for each innocent person you saved.
How many robberies, rapes, and murders are you willing to see in order to let one innocent person out of jail early? Or do the harms inflicted on those innocents not matter to you?
How degraded is the dna sample from 10 or 20 years ago? When the test comes back and says that the prisoners dna does not match the dna from the evidence store room does this mean the person is innocent or does this mean the test is faulty due to (now) damaged evidence?
Based on the techniques used for DNA fingerprinting, it's mostly the case that if the samples are sufficiently degraded, the test just won't give a result. DNA doesn't re-sequence itself as it degrades, it just breaks down into it's constituent parts.
Unless you have some filters to cut down on the number of people who are getting tested, you are far more likely to wrongly release a guilty criminal, than you are to free an innocent.
Given the high rate of criminal recidivism, that means you are highly likely to create many innocent crime victims for each innocent person you saved.
How many robberies, rapes, and murders are you willing to see in order to let one innocent person out of jail early? Or do the harms inflicted on those innocents not matter to you?
There seem to be quite a few spurious assumptions here. I mean, you are aware that DNA must affirmatively exonerate the convicted criminal right? It's not a crapshoot; you can't ask for the DNA test and hope against multi-million odds to one that somehow the DNA test shows that you didn't do it when you actually did. I don't really understand what causes you to think that a horde of criminals will get out of jail free when a DNA test fails to prove they actually did it. Hence, your last two questions are just plain silly.
Also, DNA testing does nothing for men or women convicted on the basis of other evidence, many of whom will rot in jail.
Nothing wrong with grading the DA's papers and nothing wrong with assuring that the guilty are behind bars where they belong.
wiredog and Greg Q:
Those numbers are for widespread testing with small numbers of actual positives. Focussed testing does not have the same proportions.
You might want to learn some probability theory, especially Bayes, before making idiots of yourselves.
Note: Most libertarians probably were already aware of this problem anyway since it is the exact same situation with random drug testing and why it isn't effective.
How many robberies, rapes, and murders are you willing to see in order to let one innocent person out of jail early? Or do the harms inflicted on those innocents not matter to you?
I don't know.
What would you be willing to do if YOU were the one rotting in the can after your ex got pissed off and coached your kid to claim child abuse, or some such other?
I bet you would be willing to take a chance that soma guilty people might get out if the system gave YOU a chance to defend yourself.
Or maybe you are fine with innocent people in jail so long as you don't know them. That way, they don't really exist, right?
The number of cases where DNA can be used to establish post-conviction innocence or guilt is really small (relatively speaking). Men whose freedom (and in some cases lives) have been taken deserve a chance to prove themselves innocent. That some actually guilty prisoners might abuse this process strikes me as a pretty weak reason for depriving a possibly innocent man from the means to prove his innocence.
I live in Houston, where our DA's office, crime lab, and local judiciary have all been tainted with multiple scandals for years. Cases of prosecutorial and police misconduct are make the news continuously here. Frankly, such cases are hardly news anymore. Our last DA was forced from office in disgrace (as was a Galveston Federal Judge, just yesterday).
In a recent case, a Ricardo Rachell was set free after DNA testing cleared him of the rape of a 6 year old boy. He had been convicted solely on the eyewitness testimony of the child. It has been suggested that the prosecutors withheld the rape kit from the defense attorney. Obviously that is difficult to prove, but it is known that the defense never knew of its existence.
Now I'm sure everyone is glad that an innocent man was released. But that's only half of the case--after Rachell's conviction, the real rapist was free to keep raping. And he did. He committed at least 3 more child rapes, for which he was eventually caught and sentenced. Because he had been sentenced, it was easy to match his DNA to that in the original rape kit, once anyone bothered to look. (See http://www.chron.com/disp/story.mpl/front/6277176.html .)
Given the low quality of court-appointed defense attorneys, and the propensity in some parts of the country for prosecutors to withhold exculpatory evidence, I think post-conviction DNA testing is called for. Because, in addition to freeing innocent men like Ricardo Rachell, it can help identify actual rapists like Andrew Wayne Hawthorne.
How many robberies, rapes, and murders are you willing to see in order to let one innocent person out of jail early?
Murder has the lowest recidivism rate of any crime; less than 1% of murderers ever kill again. Relatively few rapists serve any time at all for their crime, and it's not like we give them life sentences anyway, so they'd be out to rape again regardless.
So really we're talking about robbery - theft has the highest recidivism rate of any crime, especially grand larceny - as the only area where early release would cause crimes that wouldn't have happened anyway. How many robberies am I willing to cause to keep innocent people out of jail? Say, a thousand per innocent person. Sounds fair to me. Someone's stuff vs. someone's life? That moral calculus isn't hard for me to do.
Based on the techniques used for DNA fingerprinting, it's mostly the case that if the samples are sufficiently degraded, the test just won't give a result.
It's also worth pointing out that if you have the DNA fingerprint from when the sample was first taken, it doesn't matter how old the sample is now - you can compare new samples to that old fingerprint, since that's basically just a photograph of DNA bands in an acrylamide gel.
Part of the problem with DNA testing is that it may falsely exonerate the guilty. For example, consider the case of the teenagers accused of beating and raping the Central Park jogger.
At the time, it was known that their DNA didn't match the semen found on her, and they actually had pretty good "alibis" for where they were at the time. However, their "alibis" were other people in Central Park that they were beating up at around the same time the jogger was getting beaten up. Because of the cumulative evidence, they chose to plead guilty for a crime they probably didn't commit. After all, they would have gotten the same sentence if they'd been tried for the crimes they had actually committed.
A few years ago, New York reran the DNA tests and found the person who'd actually raped and beat the Central Park jogger. This was widely trumpeted as proof of those young hooligan's innocence, and people talked about how wronged they were. And they might have actually been innocent in a very very technical sense of the word. But I don't think there was any actual injustice done. And those young men certainly don't deserve compensation or apology.
I don't know how common this scenario is, but it probably happens a lot with rapes. It might be that only one man actually did the rape - but the other gang members held her down and helped dispose of the body. Legally and morally, they're just as guilty as the actual rapist. But a DNA test would falsely exonerate them.
After all, they would have gotten the same sentence if they'd been tried for the crimes they had actually committed.
I don't see how an intelligent person could support the government falsely convicting people of crimes they didn't commit - that everybody knows they didn't commit - because it's easier than prosecuting them for what they actually did.
Hey, maybe we could get Bernie Madoff for murder? How does that make sense to anyone?
The real problem here is the appalling state of criminal investigation labs - the testing isn't blind, there are poor controls, etc. (You think DNA testing is bad, you should dig into how fingerprinting works...) And nobody much cares...
I am totally in favor of DNA testing to the max, for exactly the reasons M.M. stated. But Kevin is almost adorably naive when he says that prisoners who knew they were guilty wouldn't request DNA tests because it would be a waste of time. That's pretty silly. These guys have NOTHING but time, and are looking to fill it with anything they possibly can. If you request a DNA test, you get several moments of human interaction out of it-- When you submit the request, when they come take your DNA, and when they deliver the results. That break in routine is something invaluable to most prisoners, and none of them feel the least bit bad about wasting the man's time and resources.