Some days, I am ashamed to be an American. These past two days, I’ve been astonished and outraged — and ashamed — by yesterday’s 5-4 Supreme Court decision that prisoners have no constitutional right to DNA testing that might prove their innocence. This decision was inspired by Alaska prison inmate William G. Osborne’s petition to be allowed to undergo DNA testing — at his own expense — to establish whether he is guilty of a particularly violent rape. This decision once again draws attention to Chief Justice John G. Roberts’s willingness to punish or, in some situations, to kill poor or powerless Americans by twisting constitutional law to accomplish these conservative (and punitive) goals.
Kill? Yes, you read that correctly. It is no mystery that innocent Americans have already been killed by the government for crimes they never committed. They are people who were killed by you and me. But in the past decade or so, DNA evidence has been used to exonerate Death Row inmates for crimes they did not commit according to the Innocence Project at Cardozo Law School, which represents Osborne.
Chief Justice Roberts was joined by the other conservative appointees, Justices Kennedy, Thomas, Alito and Scalia. Their majority decision emphasized that 46 states already have laws that allow at least some prisoners to gain access to DNA testing under at least some circumstances, so there is no point to revise the current system “by creating a new constitutional right and taking over responsibility for refining it.”
Huh? Isn’t the Constitution meant to make sure that all this nation’s laws protect every American citizen, regardless of how seemingly insignificant or despicable that person might be? Or maybe some of us are so ethically or behaviorally reprehensible — like convicted rapists — that it is okay to deny them their right to prove their innocence since no one cares about them anyway. (I dread the day that I accidentally fall into the “reprehensible” category). Isn’t the Constitution a living, breathing document that is supposed to change to reflect modern times? And don’t all Americans have the right to due process? DNA testing is a modern technology that has only been developed well enough to be accepted for widespread use in criminal cases and in forensics for the past fifteen years or so.
Despite its relative newness to the legal system, DNA testing has played a role in 240 exonerations, and in 103 of those cases, DNA evidence also identified the actual perpetrator. Isn’t that the real purpose of the law; to protect the innocent by convicting the guilty?
“DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty,” wrote Chief Justice Roberts in his majority decision. But nonetheless, Chief Justice Roberts refused to go one step further and make it a right to obtain DNA testing to clear the names of those who have been wrongly convicted of crimes and potentially to identify criminals.
Since Chief Justice Roberts and the majority Justices recognize the power of DNA testing, what are they afraid of? Even if DNA testing doesn’t yield anything useful, at least that avenue has been explored — isn’t this the purpose of justice? To learn the truth, to punish lawbreakers, and to protect the innocent? The lack of useful results certainly won’t change anything; convicted criminals will remain imprisoned unless innocence is proven.
The majority decision blatantly ignores true justice. In this case, if Osborne is innocent, then the real perpetrator is still out there, probably harming others while an innocent man is punished for his crimes. The responsibility of the state is to identify who is actually responsible for a particular crime and to punish them, not to convict whomever is convenient.
The Chief Justice’s decision was qualified by stating that there is no need to establish a specific right to DNA testing because 46 states and the federal government already provide such access. Thus, there is no reason to do anything to protect Osborne and others like him because they might be able to obtain DNA testing — sometime in the future.
But Justice John Paul Stevens’ dissenting opinion addressed Chief Justice Roberts’ punitive (and stupidly argued) decision. Justice Stevens pointed out that no prisoner had ever obtained DNA testing in Alaska and that Osborne “was rebuffed at every turn” by the state, creating “grave doubts about the adequacy of the procedural protections” in state law.
Justice Stevens also argued that, given the importance of DNA evidence, “the state’s failure to provide Osborne access to the evidence constitutes arbitrary action that offends basic principles of due process.” So in short, it is up to federal law to remedy that gross injustice so everyone convicted of serious crimes has the right to DNA testing to potentially clear their names.
Justice Stevens was joined by Justices Ginsburg, Breyer and Souter — who wrote his own dissenting opinion stating that officials in Alaska had “demonstrated a combination of inattentiveness and intransigence” that add up to “procedural unfairness that violates the due process clause.”
This Supreme Court decision represents a serious loss of due process for each and every American, whether we are innocents trying to clear our names or we are victims of a perpetrator who has not been convicted and removed from society.
This Supreme Court decision is ethically repugnant because it does nothing to protect the powerless, the poor and the disenfranchised in this country, which is what the Constitution was originally designed to do. This outrageous decision abandons innocent people who have been imprisoned for crimes they did not commit, and worse, it will cause the deaths of innocent people at the hands of the government — in the name of each and every one of us. Chief Justice John G. Roberts Jr. should be ashamed and all of us should be outraged.
District Attorney’s Office for Third Judicial Dist. v. Osborne [Free PDF].