The Death Penalty and DNA

There are approximately 50 bills pending in the House and the Senate on the issue of the death penalty. It has been several years since the denominational Washington offices and other justice advocates have had to address the issue of the death penalty in the United States. As we listen to the evening news broadcast and read the national pages of our local newspapers, we seem to hear about an execution taking place somewhere in the nation almost weekly.

The original arguments in opposition to the use of capital punishment still hold: that it is not a deterrent to others who commit serious crimes and that it is irrevocable in the case of mistaken prosecution. Advocates have also asked, "Why kill people to show that killing people is wrong?"

Gov. George Ryan of Illinois recently added credence to this latter point. On Jan. 31, 2000, the state began observing a moratorium on the use of the death penalty, because thirteen death row inmates were proved innocent of their accused crime through DNA testing. There is now a stay of execution for all death row inmates in the state of Illinois. Fearing that this may be a reality for other states, Rep. Jesse L. Jackson, Jr. (D-Ill.) wrote a letter to the President asking for federal moratoria. Rep. Jackson stated, "I am writing to implore you to suspend all federal executions until the Department of Justice can review the cases of those currently sitting on death row to ensure that no innocent person is executed…Since Illinois reinstated the death penalty in 1976, the state has executed 12 people. During this same period, 13 people on death row were exonerated."

Sen. Patrick Leahy (D-Vt.) has also expressed concern about the mistaken use of the death penalty in the Senate. He has introduced the "Innocence Protection Act of 2000" (S.20763). The legislation would implement Recommendations of the National Commission on the Future of DNA Evidence, which supports the availability of DNA testing in the federal criminal justice system, where appropriate. An additional purpose would be to prevent the imposition of unconstitutional punishments through the exercise of power granted by Article I and the 14th Amendment to the Constitution. The bill also would ensure that wrongfully convicted persons have an opportunity to establish their innocence through DNA testing by requiring the preservation of DNA evidence for a limited period.

Title I of this bill calls for exonerating the innocent through DNA testing. In the bill's findings section, there are these points in support of the technology:

1. Deoxyribonucleic acid testing (referred to as DNA testing) has emerged as the most reliable forensic technique for identifying criminals when biological material is left at a crime scene.
   
2. DNA testing can, in some cases, conclusively establish the guilt or innocence of a criminal defendant. In other cases, DNA testing may not conclusively establish guilt or innocence, but may have significant probative value to a finder of fact.
   
3. While DNA testing is increasingly commonplace in pretrial investigations today, it was not widely available in cases tried prior to 1994. Moreover, new forensic DNA testing procedures have made it possible to get results from minute samples that could not previously be tested, and to obtain more informative and accurate results than earlier forms of forensic DNA testing could produce. Consequently, in some cases convicted inmates have been exonerated by new DNA tests after earlier tests had failed to produce definitive results.
   
4. Since DNA testing is often feasible on relevant biological material that is decades old, it can, in some circumstances, prove that a conviction predating the development of DNA testing was based upon incorrect factual findings. Uniquely, DNA evidence establishing innocence, produced decades after a conviction, provides a more reliable basis for a correct verdict than nay evidence proffered at the original trial. DNA testing, therefore, can and has resulted in the post-conviction exoneration of innocent men and women.
   
5. In the past decade, there have been more than 65 post-conviction exonerations in the United States and Canada based upon DNA testing. At least eight individuals sentenced to death have been exonerated through post-conviction DNA testing, some of whom came within days of being executed.
   
6. The two states that have established statutory processes for post-conviction DNA testing, Illinois and New York, have the most post-conviction DNA exonerations, fourteen and seven, respectively.
   
7. The advent of DNA testing raises serious concerns regarding the prevalence of wrongful convictions, especially those arising out of mistaken eyewitness identification testimony. According to a Department of Justice study, in approximately 20 to 30 percent of the cases referred for DNA testing, the results excluded the primary suspect (Convicted by Juries, Exonerated by Science: Case Studies of Post-Conviction Exonerations, 1996). Without DNA testing, many of these individuals might have been wrongfully convicted.
   
8. Laws in more than 30 states require that a motion for a new trial based on newly discovered evidence of innocence are filed within six months or less. These laws are premised on the belief-inapplicable to DNA testing-that evidence becomes less reliable over time. Such time limits have been used to deny inmates access to DNA testing, even when guilt or innocence could be conclusively established by such testing. For example, in Edge V. Florida, 723 So. 2nd 322 (Florida District Court App. 1998), the court without opinion affirmed the denial of a motion to release trial evidence for the purpose of DNA testing. The trial court denied the motion as procedurally barred under the two-year limitation on claims of newly discovered evidence established by the state of Florida, which has since adopted a six-month limitation on such claims.
   
9. Even when DNA testing has been done and has persuasively demonstrated the actual innocence of an inmate, states have sometimes relied on time limits and other procedural barriers to deny release.
   
10. The National Commission on the Future of DNA Evidence, a federal panel established by the Department of Justice and comprised of law enforcement, judicial, and scientific experts, has issued a report entitled Recommendations For Handling Post-Conviction DNA Applications, which urges post-conviction DNA testing in two carefully defined categories of cases, notwithstanding procedural rules that could be invoked to preclude such testing, and notwithstanding the inability of the inmate to pay for the testing.
    
11. The number of cases in which post-conviction DNA testing is appropriate is relatively small and will decrease, as pretrial testing becomes more common and accessible.
    
12. The cost of DNA testing has also decreased in recent years. The typical case, involving the analysis of eight samples, currently costs between $2,400 and $5,00, depending upon jurisdictional differences in personnel costs.
    
13. In 1994, Congress authorized funding to improve the quality and availability of DNA analysis for law enforcement identification purposes. Since then, states have been awarded over $50,000,000 in DNA-related grants.
    
14. Although the Supreme Court has announced a standard for addressing constitutional claims of innocence, in Herrera V. Collins, 506 U.S. 390 (1993), a majority of the Court expressed the view that, "a truly persuasive demonstration of 'actual innocence' made after trial would render imposition of punishment by a State unconstitutional."
    
15. If biological material is not subjected to DNA testing in appropriate cases, there is a significant risk that persuasive evidence of innocence will not be detected and, accordingly, that innocent people will be unconstitutionally incarcerated or executed.
    
16. To prevent violations of the U.S. Constitution that the Supreme Court anticipated in Herrera V. Collins, it is necessary to enact national legislation which would ensure that the federal government and the states permit DNA testing in appropriate cases.
    
17. There is also a compelling need to ensure the preservation of biological material for post-conviction DNA testing. Since 1992, the Innocence Project at the Benjamin N. Cardozo School of Law has received thousands of letters from inmates who claim that DNA testing could have decided guilt or innocence if the biological material were available or had not had been destroyed or lost. In two-thirds of the cases in which the evidence was found, and DNA testing was conducted, the results have exonerated the inmate.
    
18. In at least fourteen cases, post-conviction DNA testing that has exonerated a wrongly convicted person has also provided evidence leading to the apprehension of the actual perpetrator, thereby enhancing public safety. This would not have been possible if the biological evidence had been destroyed.

DNA testing does not mean that an accused individual is automatically let out of prison or removed from death row. If DNA testing is favorable to the applicant, the court would order a hearing and enter any order that serves the interests of justice. This would include vacating and setting aside the judgment; discharging the applicant if the applicant is in custody; resentencing the applicant; or granting a new trial.

It is very clear that such a testing system is needed if our nation does not want to be in the position of either incarcerating or executing innocent people. The use of scientific DNA testing should be an automatic process-especially when the death penalty could be imposed. Our judicial system needs to catch up with science if justice is to be truly part of the court procedures.

In the face of the possibility of executing the innocent, it could almost be said that our judicial system is being vindictive, if it insists that an execution take place before DNA testing can be done. To insist on time limitations of six months for evidence to come forward may be limiting in the case of an individual who may not have the resources to pay for such test.

Mistaken Identity

It was the work of a group of students in a Northwestern University journalism class that led to an overturned conviction of four men in Chicago who were dubbed the "Ford Heights Four." Two of the four men were already sitting on death row when they were cleared based on the DNA evidence. In this case, it was also discovered that a jailhouse informant was not reliable and that the men had ineffective attorney representation. The legal system had failed these four men. We must ask ourselves: how many more has the system failed for these same reasons?

Thirty-eight states now have the death penalty. Only Illinois has halted executions in light of new findings of factors that indicate the real possibly that an innocent person could be executed. Other variables that should not be overlooked in determining the guilt or innocence of a capital punishment inmate is the possibility of police misconduct, racial bias, crowded court dockets and simple human error.

Written by Elenora Giddings Ivory of the Washington Office, Presbyterian Church (U.S.A.).

Suggested Action

At this writing, there are only four cosponsors of Sen. Patrick Leahy's, "Innocence Protections Act of 2000" (S.2073). They are Sens. Daniel K. Akaka (D.Hawaii), Russell D. Feingold (D-Wis.), Carl Levin (D-Mich.), and Daniel Patrick Moynihan (D-N.Y.). If your senator is not listed among these, you may want to call to ask that they put their name on this bill.

Since there is no House counterpart to this bill, you may wish to ask your Representative to introduce the same bill in the House or cosponsor it if it has already been introduced in that chamber by the time you read this paper.

Addresses

Honorable________
U.S. Senate
Washington, DC 20510

Honorable________
U.S House of Representatives
Washington, DC 20515

Capitol switchboard: (202) 224-3121

Resources

1. To order a copy of The Death Penalty: The Religious Community Calls for Abolition, contact the American Friends Service Committee, 1501 Cherry Street, Philadelphia, PA 19102 (215) 241-7130, fax (215) 241-7119.
2. Subscribe to the PC (USA) Washington Office List serve on Civil Rights and Religions Liberties. Send an e-mail message to washcivil-request@halak.pcusa.org and include in the message the word, subscribe. This read-only list provides action alerts, legislative updates, and background documents on public policy issues related to civil rights and religious liberties.

General Assembly Guidance

Statement of the 1985 General Assembly on the death penalty: "Therefore, the 197th General Assembly: Reaffirms the positions of the General Assembly of the United Presbyterian Church in 1959, 1965, and 1977, and of the General Assembly of the Presbyterian Church U.S. in 1966, and declares its continuing opposition to capital punishment.

Calls upon governing bodies and members to work for the abolition of the death penalty in those states, which currently have capital punishment statutes, and against efforts to reinstate such statutes in those, which do not.

Urges continuing study of issues related to capital punishment and commend the use of resources available from the Presbyterian Criminal Justice Program."