Do Inmates Have a Constitutional Right to DNA Testing? U.S. Supreme Court Says No.

Tim WelchBy Tim Welch

Last month, I wrote an entry about the current trend of prosecutors blocking convicted prison inmates from accessing DNA testing on old pieces of evidence stored in police files.  Despite inmate advocacy groups’ claims that DNA tests have exonerated hundreds from false imprisonment, prosecutors are denying the tests to inmates, citing insufficient scope of state laws.  William Osborne, a man currently serving a 26-year sentence for a 1994 rape conviction in Alaska, brought his case all the way to the Supreme Court.  Osborne is seeking a DNA test under 42 U.S.C. § 1983 on police evidence collected during his 1994 rape trial.  But yesterday, the Supreme Court dealt a major blow to the wrongfully-convicted of America’s prisons.

On June 18, 2009, the Supreme Court ruled 5-4 against Osborne, deciding that convicted prison inmates do not have a constitutional right to obtain DNA tests on old evidence.  As a result, the decision of whether or not to grant inmates access to DNA testing will remain in the hands of state courts and legislatures.  While according to the Chicago Tribune, 47 states have already enacted laws that allow inmates to receive DNA testing in some post-conviction instances, Alaska is not one of them.  Osborne, who won in the U.S. Court of Appeals for the 9th Circuit, may now face an impossible task in obtaining what he believes to be justice.

In my previous blog on this subject, I mentioned how most state laws on inmate DNA testing require that for a test to be performed, the results must be able to conclusively establish the inmate’s innocence.  But Justice Samuel Alito in his concurring opinion raised another interesting point.  Alito points out that many defendants will voluntarily forgo DNA testing at trial for strategic reasons.  According to Alito “a defendant who declines the opportunity to perform DNA testing at trial for tactical reasons has no constitutional right to perform such testing after conviction.”

Osborne and his lawyer decided not to seek DNA testing at Osborne’s 1994 rape trial.  The U.S. Constitution protects every citizen’s right to receive “due process of law” before they are incarcerated.  But if a defendant decides at his or her own trial not to bring DNA evidence into play, does he or she still have the right to request that testing after being found guilty in a court of law?

Despite Alito’s compelling constitutional reasoning, the bigger issue of an innocent man wasting away in a jail cell seems to carry more clout.  The reason why prisons exist is to punish and reform offenders of the law.  It is extremely difficult to justify–on any grounds–keeping an innocent citizen locked up in a penitentiary because of a false conviction via an imperfect legal system.  It is a fact that DNA evidence has exonerated wrongfully-convicted inmates, some of whom lose decades of their lives behind bars.  Because genetic technology is a rapidly-improving field, it is possible that evidence that may not have been useful 20 years ago could in fact be useful today.  Moreover, DNA tests are often relatively cheap and many defendants are willing to foot the bill.

For now, there will be no constitutional protection.  Osborne and the countless number of other prison inmates who maintain their innocence will have to wait for the States to decide what types of tests are permissible and which ones aren’t.  The American prison system is filled to the brim, and some states are being ordered to reduce their jail populations.  Perhaps they could start by releasing the innocent ones?

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