Monday, 27 July 2009

Limiting DNA Testing and Denying Justice to Victims

On June 18th, the United States Supreme Court ruled by a 5-to-4 decision that prisoners have no constitutional right to DNA testing that might prove their innocence if they have been wrongfully convicted. That decision is one that will hurt crime victims in the U.S.

The five-justice majority found that this was a state issue instead of a federal one. In essence, state legislatures were doing enough already to remedy the problem of wrongful convictions. The opinion, written by Chief Justice John Roberts, Jr. for the majority, said that to vote in favor of giving such rights to inmates would “short circuit what looks to be a prompt and considered legislative response.” It’s hard to agree with Chief Justice Roberts when 240 prisoners to date in the U.S. have been exonerated because of the use of DNA testing. Often the exoneration of these inmates has been due to the hard work of organizations like the Innocence Project and other organizations across the country. Without the use of DNA testing it is hard to think how these innocent prisoners would ever have seen the light of day.

But what concerns me as well is the number of crime victims who have been shafted yet again by the criminal justice system in the U.S. They once thought their case was solved only to find years later, sometimes two decades later, that the wrong man was convicted and sentenced. What a blow! According to the Innocence Project, out of the 240 exoneration cases, some 103 of those cases also identified the actual perpetrator through that same testing. DNA testing frees the innocent and catches real perpetrators. As a restorative justice advocate my question is : What on earth are we waiting for?

The argument against “constitutionalizing’ this area, as Chief Justice Roberts called it, is assuming that all state legislatures in the U.S. will do the right thing. My understanding, and my experience with this subject, is that there is progress in the area of righting these atrocious wrongs in these criminal cases when some advocacy organization, like the Innocence Project, or an interested legislator takes up the cause to attempt to lower the number of wrongful convictions in their state. I’d say it’s not a high priority these days in any state.

In California in 2006, there was a package of bills to address wrongful convictions as proposed by the California Commission on the Fair Administration of Justice. I wrote a letter of support for these bills on behalf of The Justice & Reconciliation Project, an organization representing crime victims in support of restorative justice. Those bills were passed by the Legislature and landed on the governor’s desk in 2006 and 2007. Both times the bill package was vetoed. Not exactly swift justice. Do states need a little push to do the right thing here? Yes. More states are looking at the problem of wrongful convictions but because of this Supreme Court ruling the most important weapon to fight these miscarriages of justice has been denied.

When I became more aware of wrongful convictions I was urged to read a book called "Surviving Justice, America’s Wrongfully Convicted and Exonerated" - edited by Lola Vollen and Dave Eggers. If you think that wrongful convictions only happen to those who are of the criminal ilk you would be wrong. After reading this well researched book you realize that “by the grace of God go I.” No one is immune from the common occurrence of a witness misidentifying an innocent man or woman after a crime has been committed. That is the number one reason why innocents are behind bars for crimes they did not commit: faulty witness identification.

But for God’s sake, if we know we have hundreds or thousands of innocents behind bars must we not do everything in our power to set them free if we live in a civilized society? Absolutely. This court ruling will now make this work harder and slower. As I said earlier, crime victims are hurt - not helped - by this ruling. The challenge on top of this urgent need to free those who are wrongfully convicted is to remember then that someone who is actually guilty of that crime is free at large. Ask a crime victim how they would view that fact. Having worked in the restorative justice field for 15 years I can tell you that crime victims want the system to get it right. There can be no restoration of crime victims, nor can there be offender accountability - two key elements of restorative justice, if the real perpetrator is not caught.

Lastly, I am sharing this video of a man I met in Sacramento a few years ago. His name is Herman Atkins. He is an exoneree freed in 2000 due to DNA testing after serving over 11 years in prison for rape he did commit.

I fear in America we have just exposed the tip of the iceberg. There is so much more we can do to right these wrongs: for the innocent in prison and the crime victims who still seek justice.


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