An ongoing series tackling the issues around the death penalty in the United States.
“It’s just common sense that before the government sends a man to his death, we should use the best scientific methods to make sure we have convicted the right person,” Karen Thompson, staff attorney with the Innocence Project said.
This past April, the state of Arkansas pushed to execute 8 people in 11 days before their supply of sedatives used for lethal injection expired. Four of the eight executions went through. Ledell Lee, one of the executed, was denied DNA testing access before he was executed. Stacy Johnson, one of the men spared from state enforced death, was granted access to DNA testing, halting the execution.
Officially, Lee was denied this DNA testing opportunity because the idea was brought up too late. Innocence Project Senior Attorney Nina Morrison says there are a lot of problems with that argument, including the facts that
“it’s never too late to find out if you’re executing the wrong man for a crime he didn’t commit.”
Deoxyribonucleic acid (DNA) is a necessary molecule that is unique to each person, and can be found in every cell in a body. Testing evidence for DNA is the “modern and improved form of fingerprinting”, according to the ACLU. For it to be effective though, biological evidence must be collected, preserved, kept from contamination and analysed correctly. Because of this, DNA is not able to be reliably tested in all criminal cases.
In 1993, Kirk Bloodsworth was the first person on death row who was exonerated by DNA evidence after serving 9 years in prison. Since then, 20 of the 350 people exonerated by DNA evidence served time on death row. This March William Barnhouse became the 350th person exonerated by DNA evidence. after serving 25 years for a crime he didn’t commit. Of all exonerees freed by DNA evidence- 217 are African American, 106 are white, 25 are Latino and 2 are Asian Americans.
DNA testing remains one of the most important factors in criminal justice reform, yet it is not currently a speedy process. The average length of time that exonerees are in prison before DNA evidence frees them is 14 years.
All 50 states have post conviction DNA testing access laws, but the reach and ability of DNA testing access within each state differs. This means that death row inmates in all of the 31 state that still use the death penalty should theoretically get access to DNA testing, though different laws complicate this. Additionally, if the client does not have a good lawyer who knows to push for DNA testing, this piece of crucial evidence can simply never be brought up.
In some states, DNA testing access is not granted if the defendant originally pled guilty for the crime they are on death row for. This is despite the fact that about 30% of proven wrongful convictions involved a false confession. Some laws do not allow for challenges to denials for DNA testing, and some laws do not allow people who are no longer incarcerated to follow through with DNA testing.
Many laws do not require sufficient preservation of DNA evidence after the initial trial, which can make post-conviction DNA testing impossible. Some DNA access laws put the burden of solving the crime wholly on the convicted person, and expect the convicted to find the actual perpetrator of the crime before release is possible. Finally, many states do not have standardized and prompt responses to requests for DNA testing, and the convicted can wait in prison for years for an answer.
It seems to be, though unstated, that the judicial system as a whole tends to fear the reopening of old cases, and uses many reasons to deny this search for justice with modern tools in an attempt to maintain their reputation without uncovering old “mistakes.”
Despite the opinion of the judicial system, a 2000 Gallup Poll found that 92% of Americans say those convicted before DNA testing technology was available should be given the choice to submit DNA tests now.
There have been 158 people released from death row after they were proved to be innocent since the Death Penalty was reinstated in the US in 1977. That means that for every ten people set to be executed and granted access to DNA testing, one is found innocent.
National data is not recorded as to how many DNA tests affirmed guilt of the prisoners on death row. According to DNA cases tested by the Innocence Project though, only half of DNA tests on death row confirmed guilt.
According to the Innocence Project, a leading voice in the country for those wrongly convicted, there are many ways to improve access to DNA testing post conviction. Most of these solutions have to do with making DNA access laws more flexible and available to those convicted.
To begin with, getting rid of expiration dates for DNA testing would be hugely beneficial, in addition to excluding debate as to whether DNA testing was available at the initial trial. Allowing appeals for denied DNA testing requests, providing funding to DNA testing statutes, requiring states to accurately preserve biological evidence for as long as the individual is incarcerated or experiencing effects of the conviction would also make drastic changes to the way DNA testing is currently being handled. Finally, requiring prompt and accountable responses to pleas for DNA testing post conviction, allowing DNA testing even if the defendant is no longer in prison and establishing a reasonable standard for proof of innocence to accompany the DNA test are all things that could better streamline the system for justice.
Because what are we really aiming for? Justice, or preservation of a few judge’s reputations? I hope we choose the former.
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