Ethics and morality

Do convicts have a right to
access samples for DNA testing?

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Background about DNA:

Deoxyribonucleic acid (DNA) is "... a nucleic acid that contains genetic instructions for the development and functioning ..." of plants, humans, other animals and some viruses. The human genome consists of about three billion base pairs of DNA arranged into 40 chromosomes ₁

DNA profiling (a.k.a. genetic fingerprinting, DNA testing, and DNA typing) was  developed in 1984 by a British geneticist Sir Alec Jeffreys. It was first used to identify the perpetrator of the rapes and murders of two teen-age girls in Narborough, England during 1983 and 1986. A local man, Richard Buckland, had already confessed to one of the crimes when DNA evidence was able to exonerate him. An unsuccessful mass screening of 5,000 area men followed. Colin Pitchfork was later found to have paid an individual to impersonate him during the screening. His DNA turned out to be a perfect match. DNA was first accepted as valid evidence by a court during Pitchfork's court trial in 1987. He was convicted, and is still in jail. ₁

Timothy Lee Andrews was the first American to be convicted as a result of DNA evidence. This also happened in 1987.

DNA from hairs extracted from "Snowball," a cat in Canada, were used as evidence to link a man to the murder of his wife. This was the first time that non-human DNA was used in a court case.

The theoretical possibility of incorrectly declaring a match between two DNA samples is about 1 in 100 billion. In practice, the possibility is much greater than that, because of laboratory error and the existence of identical twins.

Forensic scientists can derive human DNA from samples of blood, hair (if a follicle is attached), saliva, semen, or skin left at a crime scene. ₂

An inmate asking for DNA testing is running a risk. If he/she is guilty of the crime, the test may well confirm their guilt; this might have a negative effect on obtaining a parole. But if they are actually innocent, testing may prove their innocence and given them their freedom. However, there are some states with statutes of limitation so that an inmate can be held in prison until the end of their sentence even though they have been proven innocent of the crime.

Policies concerning DNA testing:

Post conviction DNA testing has given new hope to convicts who are innocent of the crimes of which they had been found guilty. At least 232 American convicts (one source says 240) ₄ have been able to prove their innocence and obtain their release from prisons. Among them were at least 17 on death row awaiting execution. ₅ There were so many inmates on the Illinois death row who were proven innocent as a result of DNA testing that Governor G./H. Ryan declared a moratorium on executions in the state starting in the year 2000.

The federal government has laws that give convicts some access to DNA testing. So do all 50 states except for Alaska, Massachusetts and Oklahoma. (Some sources add Alabama; CNN says that there are six states) These latter states oppose post-conviction DNA testing because of the cost and the additional litigation that it might trigger.

The William Osborne case:

Osborne was convicted of kidnapping, raping and assaulting a prostitute near the airport in Anchorage Alaska. Results of a basic DNA test were used during his trial. It was only capable of showing that the DNA could have been either from Osborne or from about 15% of all black men. His lawyers decided to not pursue a more advanced DNA test because of their fear that it would conclusively prove his guilt. The court found him guilty and sentenced along with an accomplice.

He sued for the right to have his DNA compared with biological evidence from the crime. The U.S. Justice Department opposed his petition because a right to post-conviction DNA testing would "open the floodgates" and result in numerous lawsuits. They said that the matter should be left up to the federal government and the individual states to decide. The Alaska courts rejected his lawsuit, because he did not meet the procedures established by the state.

Osborn appealed to the U.S. Court of Appeals for the Ninth Circuit, using the Due Process clause of the U.S. Constitution in his defense. They agreed, but the U.S. Supreme court overturned the Court of Appeals' decision.

Chief Justice John Roberts wrote that:

	DNA testing has an "... unparalleled ability both to exonerate the wrongly convicted and to identify the guilty."
	The "... challenges DNA technology poses to our criminal justice systems and our traditional notions of finality" are better left to elected officials than to federal judges.
	"There is no reason to constitutionalize the issue," and that fairly won convictions should not be thrown into doubt merely because new technology is developed that can prove the individual innocent. 4
	"To suddenly constitutionalize this area would short-circuit what looks to be a prompt and considered legislative response." 3,5
	"A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man." Thus states have more flexibility in deciding procedures for post-conviction relief.

As is nearly universal for cases with a significant moral and ethical dimension, the Supreme Court vote was 5 to 4. The four strict constructionist justices -- Samuel Alito, Antonin Scalia, John Roberts, and Clarence Thomas who almost always vote as a single block on ethical and moral issues -- joined with Justice Anthony Kennedy.

Reuters wrote that the four more:

"... liberal justices, John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer dissented. Stevens said there was no reason to deny access to the evidence and cited 'a fundamental concern in ensuring that justice has been done in this case'." ₃

Justice Souter also wrote that the state:

"... has demonstrated a combination of inattentiveness and intransigence in applying those conditions that add up to procedural unfairness that violates the [Constitution's] due process clause." ₆

Washington Post wrote:

"Justice John Paul Stevens, said the right to post-conviction DNA testing should not depend on the widely varying laws enacted by the states. Allowing a prisoner to test DNA evidence at his own expense would 'ascertain the truth once and for all,' Stevens wrote." ₅

CNN wrote:

"In dissent, Justice John Paul Stevens said, 'There is no reason to deny access to the evidence and there are many reasons to provide it, not the least of which is a fundamental concern in ensuring that justice has been done in this case'." ₆

Peter Neufeld of the Innocence Project argued the case before the Supreme Court. He said the decision will mean that, because they lack the legal right to DNA testing:

"... more innocent people will languish in prison. Some state statutes are simply inadequate."

Within one day of the posting of t\he Washington Post article by the Boston Globe, there were 37 comments by readers. Essentially all were negative -- some viciously so. ₅

Other factors related to the Osborne case:

	He admitted his guilt during a 2004 parole hearing. However, he explained later that he had done this in the hope of being released early.
	He was eventually released in 2007.
	Within months of his parole he was arrested and charged with kidnapping and assault in a home invasion in Anchorage. He has convicted of those charges and is awaiting sentencing. 6

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. "DNA." Wikipedia, as modified 2009-JUN-19, at: http://en.wikipedia.org/.
2. "Colin Pitchfork," Wikipedia, as modified 2009-MAY-24, at: http://en.wikipedia.org/.
3. James Vicini, "Supreme Court rejects right for criminals to DNA tests," Reuters, 2009-JUN-18, at: http://www.reuters.com/.
4. "High court: No right to DNA test after conviction," Associated Press, 2009-JUN-19, at: http://www.northjersey.com/.
5. Robert Barnes, "Supreme Court rejects inmates' right to have DNA test.
   Rules officials, states must set own policy," Washington Post, 2009-JUN-19, at: http://www.boston.com/.
6. "Supreme Court denies DNA test to rapist ," CNN, 2009-JUN-18, at: http://www.cnn.com/

Copyright © 2009 by Ontario Consultants on Religious Tolerance
Originally posted: 2009-JUN-20
Latest update: 2009-JUN-20
Author: B.A. Robinson

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