...And Justice for All?

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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].

The Innocence Project.

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Normally I'd be right there with you, and was on this one. Until I read a bit deeper. Turns out Osborne had already refused the opportunity for a DNA test during his trial. Which muddies the waters quite a bit. So this may be an opinion on a particular case rather than a general reading of the Constitution. And may take considerably more depth of legal knowledge than I posses to understand properly.

The bit that really worried me, still does, was the way the opinion seemed to say that there is no constitutional obligation to grant a prisoner freedom even in the face of incontrovertible proof of innocence and reversal of conviction. Can you spell "Gitmo"?

By Gray Gaffer (not verified) on 19 Jun 2009 #permalink

It's worth mentioning in this context that Obama's Supreme Court nominee Sonya Sotomayor, a former prosecutor, seems to have a record with a notable bias against defendants in criminal cases.

Not "proof" that she would side with the Republican court majority in cases like this, but something which suggests strong questions unlikely to be asked at her confirmation hearings by senators of either party.

By Pierce R. Butler (not verified) on 20 Jun 2009 #permalink

grey gaffer -- i am aware of the refused DNA test during trial. actually, one DNA test was done and could not rule osborne out as a possible perpetrator, so the defense decided not to pursue a more accurate DNA test, thinking that it might actually incriminate him. not sure why the defense lawyer thought this .. ignorance regarding the accuracy of DNA testing? unsure whether her client was really guilty? however, in this case, if osborne wants to pay for his own DNA test, thinking it might prove his innocence, then let him do it. if certainly will not show him to be innocent if he is guilty! anyway, i don't think there should be a time limit on justice when someone has been convicted of a violent crime.

pierce -- i am no fan of sotomayor, and never have been.

Let me first say that I am a strong advocate for DNA testing and the Innocence Project. However, the court decided this case correctly. Not because convicted felons shouldn't have post-conviction access to DNA testing, but because it is not the job of the courts to dictate law to the rest of us.

People in science (and I'm one of them - PhD in Molecular Evolution from Stanford) sometimes forget that there is a larger world out there that works by its own rules, and that, because most people, especially in large groups, often do not act rationally, or even justly, the rules sometimes need to be a little more complicated than we'd like. This is one of those times.

The function of the courts, including the Supreme Court, is to interpret the law, not to make it. They are bound to rule based on existing law, not invent new law to come to a decision that makes us (or even themselves) happy. There is no constitutional amendment guaranteeing a right to post-conviction DNA testing, and no federal law requiring it, so there was no legal basis for the court to force it on Alaska. The system of checks-and-balances that we all learned about in grade school required them to make this decision. To do otherwise would be to substitute their own judgement for that of the People. This is no different than the ACLU defending the right of the KKK to exercise their First Amendment rights. While the details might be revolting, defending the fundamental principles that make us a free nation require those with integrity to make the hard choice.

If they had ruled otherwise, they would have been usurping OUR power. Anyone who supports that is supporting a system where a simple majority of a group of nine individuals, appointed for life and not answerable at all to the voters, make laws by which we would all have to live. And no one could overrule them, since they would still retain the role of interpreting any such attempt. While such a system might seem desirable if they rule the way you think they should, what happens when they don't? At least now we have the ability to change the system.

Anyone who is upset by this decision needs to go back, study your basic Constitution and the powers of the different branches of government, and then write their representatives and senators to get a national law (or, if you live in a state without a law providing for access to this testing, a state law) requiring people to have such access. Anyone who doesn't do this has no right to complain that such a law doesn't exist, and anyone who didn't do it before this decision came out has no right to criticize it. It's YOUR fault that they decided this way, because you didn't do your part to change the law. All the court did was recognize your failure to live up to your responsibility

People in this country choose to be ignorant of how it was designed to work, and simply expect it to do what they want, without doing their part (or even knowing what it is) to make it work properly. How many vote? How many of those vote in national off-year elections? How many vote in strictly local elections? How many ever talk to their elected representatives about their desires for legislation? The answer to each of these is, very few. Instead they complain, and expect the courts to fix the system they did nothing make work right in the first place.

The fact that the highest court in the land did their job exactly the way they are supposed to, rather than giving in to the temptation to usurp the powers of the other branches of government in a difficult case, makes me proud to be an American, rather than the citizen of a country in which despotic leaders feel free to violate the core founding principles of their countries and substitute their opinions and desires for the voice of the People.

I have no doubt that Justices Roberts, Kennedy, Thomas, Alito and Scalia will keep the file for this decision close by their bed side so they can get the continuing gratification that punishing or killing poor and innocent people provides them. Just like so many other serial killers do with their trophies.

You are already in the reprehensible category.