Broadening Access to DNA Tests Divides States and Legal Community

NEW YORK —  DNA is that proverbial sword: a tool to free the innocent wrongly convicted, a weapon for police to use against the guilty.

In the last 10 years, states have moved swiftly to give authorities the power to take the DNA of convicted criminals, collecting samples in hopes of solving more crimes. It works: DNA evidence has helped solve thousands of cases.

But even as prisoners are freed from death row and questions about the death penalty enter the presidential race, states are slower to guarantee inmate access to DNA testing to prove claims of innocence.

“It’s just a matter of elemental fairness,” said Barry Steinhardt, associate director of the American Civil Liberties Union. “If we’re going to have DNA testing be an integral part of the criminal justice system, it needs to be available to not only the police and prosecutors, but to the accused as well.”

Four states this year passed laws granting inmates the right to DNA testing, bringing the national total to seven. But at least seven more rejected the idea. California is still debating, as is Congress, where lawmakers could create a national model for states.

Police Widen Testing

This year the DNA dragnet also expanded for police.

In 1989, Virginia passed the first law authorizing DNA sampling of convicted sex offenders. All states soon followed and often included violent felons. Laws passed this year in Arizona, Colorado, Florida, Georgia, Kentucky, New Jersey and West Virginia go further, authorizing DNA samples from even a broader range of convicted criminals.

A few states already take DNA from all convicted felons; some states even take samples from those convicted of misdemeanors. Louisiana allows DNA samples upon arrest, just as fingerprints are taken. New York Mayor Rudy Giuliani is among officials endorsing such an approach.

But critics who worry about Big Brother say it is wrong to compare a DNA sample to a fingerprint.

“Unlike a fingerprint, there is private medical information about me and my family and other relatives,” said Valerie Small Navarro, with the ACLU in Sacramento. She sees the risk of an intrusive search that could reveal physical or mental illness--and the risk that the information could find its way to employers or insurers.

More than 700,000 DNA samples have been collected nationally. Each one is a digital ID, not unlike a bar code at the market. It’s the DNA sample kept in government labs that raises privacy concerns across the political spectrum.

“The problem of keeping DNA records of suspects is, it casts too broad a net,” said Art Croney, director of the Committee on Moral Concerns in California. The group opposes abortion rights, gay rights, gambling and legalized drugs.

All people, he noted, leave DNA wherever they go: on the grocery shopping cart, at the laundry’s change machine. That could provide half a DNA match. The other half could come from a police registry of a sample taken after a youthful arrest, even one that never resulted in conviction.

DNA, Croney warned, could shift the burden of proof from innocent-until-proven-guilty to what’s-your-alibi?

“This would be a good way to clear a lot of crimes,” he added. “Unfortunately, it would be a good way to get the wrong guy.”

Courts Favor Sampling

Police and prosecutors dismiss the worries as overblown and point to the nation’s success with fingerprinting on arrest.

“I don’t think it’s that much an invasion of privacy,” said Joshua Marquis, district attorney in Clatsop County, Ore. “Yes, there can be abuses, but there can be from your credit card, from using the Internet.”

So far, courts have consistently allowed authorities to take DNA from convicted criminals. The ACLU promises a fight when it comes to suspects.

And DNA is now intertwined with a broader debate: Could such tests save an innocent person from death row?

After doubts freed 13 men on death row in Illinois, the state placed a moratorium on executions. In Texas, the nation’s leader in executions, lawmakers proposed expanding DNA access to those who claim wrongful conviction. U.S. Atty. Gen. Janet Reno called DNA testing crucial for the defense in death penalty cases.

Many prosecutors oppose broadly expanding inmates’ rights to DNA tests. “Our system of law has a theory of finality. At a certain point, it’s over and done with,” said Jim Polley, executive director of the National District Attorneys Assn.

Worries of unnecessary delays were on the minds of Texas judges who recently denied a DNA test for a death row inmate. Gov. George W. Bush, while campaigning for the presidency, granted 30 days to allow convicted rapist-murderer Ricky McGinn to pursue the testing.

Prosecutors acknowledge that some cases call out for retesting the evidence. But they argue that the existing system, where prosecutors and judges decide on DNA tests, already provides enough opportunity. And they want this safeguard: no more delays in a backlogged system.

“We’ve been doing it judge by judge and case by case here in Virginia,” said Paul Ferrara, director of the state’s forensic division. “That seems to have worked out very well.”

Defense attorneys scoff at that notion. Each wrongful conviction is a struggle to get evidence to test for DNA, said Peter Neufeld, one of the founders of the Innocence Project. The pro bono group has helped overturn at least 63 convictions.

Currently 33 states bar adding any evidence on appeal that was not introduced at trial unless it’s presented within a few months of sentencing, according to this group. But defense attorneys argue that DNA testing, which has improved greatly in recent years, should at least be applicable in the cases of convicts prosecuted before the technology was available.

Arguments in favor of giving inmates more access to DNA testing won out in four states: Arizona, Oklahoma, Tennessee (only for those receiving sentences of death or life imprisonment) and Washington state (death sentences).

Seven states rejected broader DNA access for convicts claiming innocence: Delaware, Florida, Louisiana, Maryland, Missouri, New Jersey, South Dakota.

Despite the defeat, the Maryland bill’s sponsor still sought a legislative remedy for criminal justice errors.

“If in fact the tools are going to be used not only to convict people but to emancipate people, then it’s fair,” said Tony Fulton, a Democratic state legislator. “We make a lot of mistakes, and this is one we can correct.”

Innocence Project: https://www.cardozo.yu.edu/innocence_project