Dispatches from the Creation Wars

DOJ Does Something Right on DNA Testing

The Obama Justice Department is finally doing something right when it comes to protecting the right to prove one’s innocence. They are reversing a Bush-era order to federal prosecutors that clearly undermined due process:

Attorney General Eric H. Holder Jr. is reversing a controversial Bush administration policy under which numerous defendants have waived their right to DNA testing even though that right is guaranteed under federal law, Justice Department officials said Wednesday.

Holder will issue a memo on Thursday to the nation’s 93 U.S. attorneys, which overturns the practice of seeking “DNA waivers,” said the officials, who spoke on condition of anonymity because the policy shift had not been publicly announced.


Here’s how those DNA waivers worked:

The waivers have been in widespread use in federal cases for about five years and run counter to the national movement toward allowing prisoners to seek post-conviction DNA testing to prove their innocence. More than 260 wrongly convicted people have been exonerated by such tests, though virtually all have been state prisoners.

The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if evidence emerges that could exonerate them. Statistics show that innocent people sometimes plead guilty, often for a reduced sentence. One quarter of the 261 people who have been exonerated by DNA testing had falsely confessed to crimes they didn’t commit, and 19 of them pleaded guilty, according to the New York-based Innocence Project.

We know now that people often plead guilty to crimes they did not commit for a variety of reasons. Sometimes they actually become convinced that they committed the crime. Other times they are coerced into doing so because the police lie to them during interrogations and tell them that they have their fingerprints or their DNA so they’d better plead guilty to get a lesser sentence. In most cases, they do so because their court-appointed attorney gives them little choice because they’re too busy to actually put on a defense and lack the resources to put on a competent one even if they had the time.

This is a very good thing the Obama administration is doing. But it makes their position in Osborne last term all the more bizarre. In that case, Obama’s Solicitor General — that would be Justice Kagan now — took the appalling position that there is no constitutional right to access DNA evidence for testing that could prove one’s innocence even if they pay for the testing themselves. The inconsistency is obvious.