DNA Testing: Today's Get-Out-Of Jail Card

DNA Testing: Today’s Get-Out-of-Jail Card
By Gary L. Flowers
Executive Director & CEO
Black Leadership Forum, Inc.
October 11-19, 2009

This week, United States Attorney General Eric Holder directed the United States Department of Justice to review a Bush Administration policy virtually excluding DNA testing from defendants in federal cases. In addition, the U.S. Attorney General favors the expanded use of DNA testing is federal courts.

In 2004, the Innocence Protection Act of 2004 was enacted by the United States Congress to ensure greater protections under law for the wrongfully convicted. The U.S. House of Representatives passed the Act nearly in tact; however, the U.S. Senate conjured up a catch—waivers to DNA tests that could provide exonerating evidence by defendants in consideration for lesser sentences.

In response to the Innocence Protection Act, the Bush Administration via U.S. Attorneys’ offices required some defendants to waive their right to DNA, despite such a right provided for by the Act. Although waivers were only filed in cases where guilty pleas were entered, the plausibility of coerced confessions of guilt or cases where defendants pled guilty to charges in exchange for lesser prison sentences were not considered. The process was politicized.

The most diabolical aspect of the policy was that defendants who filed DNA waivers were barred from ever asking for DNA tests, notwithstanding the existence of exculpatory evidence in such tests. In other words, a defendant was forced to waive science for a softer sentence, even in cases where their innocence existed. Seriously?

The use of DNA evidence became widely used around 2003 and has had a dramatic affect on exonerating innocent people wrongly convicted of crimes. For example, following the conviction last year of high-ranking police officers in Chicago of coercing confessions through torturing the accused several people have been released from prison as DNA evidence was admitted and exonerated them from the crimes they were forced to admit.

However, the full effect of DNA testing in federal courts is yet to be witnessed. So far, 243 people in the United States have been exonerated by DNA evidence (25% of which gave false confessions, and 16 of that number pled guilty). Seventeen wrongly convicted people have been exonerated. All 243 who have been exonerated have been in state cases. In fact, 97% of federal convictions arise from guilty pleas, thereby eliminating the use of DNA tests.

Most federal court districts have enacted legislation allowing inmates to request DNA testing, and the majority of cases permit petitions, post guilty pleas. Some high-volume federal districts such as the District of Columbia, Manhattan, New York, and Alexandria, Virginia commonly use waivers. Twenty-four U.S. Attorneys do not use waivers at all.
However, help is on the way.
The DNA process will soon expand to include biological data. Currently, DNA data does not reveal whether the DNA sample originated in semen, blood, or other tissue. The improvements in science are way overdue for the wrongly convicted—disproportionately African Americans and Latinos.
In 2009, the inmate population in the United States is over 2 million, with nearly 75% ethnically Black or Brown.

In the board game Monopoly a “Get-Out-of-Jail Card” is won on the chance the player rolls the dice and lands on the appropriate box of the board. The reality for defendants of being wrongfully convicted due to poverty, poor legal representation, or overly ambitious prosecutors should not depend on a “roll of the dice” or is it appropriate that so many are jailed for so little evidence. The playing field for the falsely accused and convicted should be leveled so that scientific evidence is available in order to ensure the nation’s promise of liberty and justice for all.
Today, science in the form of DNA testing provides a genetic “Get-Out-of-Jail Card” or better still: a “Not-Go-to-Jail Card.” I love the proper use of science for just public policy!