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Improving Access to Post-Conviction DNA Testing Kirk Noble Bloodsworth Spent a Policy Review Almost Nine Years in Prison

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EDUCATION THE JUSTICE PROJECT FUND Improving Access to Post-Conviction DNA Testing Kirk Noble Bloodsworth spent A Policy Review almost nine years in prison for the rape and murder of nine-year-old Dawn Hamilton before DNA testing proved he did not commit the crime. To date, more than two-hundred wrongfully convicted people have been exonerated through Introduction .............................................. 1 post-conviction DNA testing. Problems & Solutions ........................... 2 The Legal Landscape ........................... 5 Benefits & Costs ..................................... 8 Profiles of Injustice ................................. 9 Snapshots of Success ........................ 13 Voices of Support ................................ 14 Questions & Answers ........................ 16 A Model Policy ..................................... 17 Statistics ................................................... 24 Literature ................................................. 24 “ When innocent people are convicted and the guilty are permitted to walk free, any meaningful reform effort must consider the root causes of these wrongful convictions and take steps to address them.” —PATRICK LEAHY SENIOR UNITED STATES SENATOR FROM VERMONT EDUCATION THE JUSTICE PROJECT FUND INTRODUCTION NA testing is a remarkable technology that has counsel for post-conviction DNA testing petitioners. Ddeveloped rapidly since the first accurate descrip- The federal government recognized the impor- tion of DNA in 1953 by scientists James Watson and tance of post-conviction DNA testing with the Francis Crick. DNA has emerged as a highly reliable passage and signing into law of the Innocence source of information and a powerful tool for proving Protection Act on October 30, 2004.1 Included in guilt and innocence. Its the Innocence Protection many benefits are becom- The Justice Project Recommendations: Act (IPA) is a post-con- ing increasingly clear viction DNA testing pro- to courts, prosecutors, • States should require the preservation gram that authorizes $25 defense counsel, and to of biological evidence throughout million over five years the public. Post-convic- a defendant’s sentence and devise to help states defray the tion DNA testing gives standards regarding custody of evidence. costs of post-conviction those who have been DNA testing.2 The pro- • States should ensure that all inmates wrongfully convicted an gram is named after Kirk with a DNA-based innocence claim may opportunity for relief, and Bloodsworth, the first has been used to exon- petition for DNA testing at any time and death row inmate whose erate over two-hundred without regard to plea, confession, self- innocence was proven innocent people in the implication, the nature of the crime, or by DNA analysis. The United States. DNA test- previous unfavorable test results. time is right for states to ing also makes possible • States should require judges to grant follow the federal gov- the prosecution of “cold” post-conviction testing petitions when ernment’s lead in pass- cases, and many states are testing may produce new material ing comprehensive post- establishing DNA data- conviction DNA testing evidence that raises a reasonable banks for convicted fel- laws. Expanding post- probability of the petitioner’s innocence ons to find new leads in conviction DNA testing old cases. or reduced culpability. contributes to a more Without post-con- • States should ensure that petitioners accurate criminal justice viction DNA testing, it have access to objective and reliable system and restores pub- is likely that the more forensic analysis at independent and lic confidence in the abil- than two-hundred DNA privately funded labs, subject to judicial ity of the system to cor- exonerees would still be approval. rect its own errors. in prison today. A major- While DNA testing ity were convicted before • States should provide counsel and cover has become the new gold DNA testing could have the cost of post-conviction DNA testing standard for determin- proven their innocence in cases where a petitioner is indigent. ing guilt or innocence, it in court. Some of them • States should standardize post-testing does not necessarily solve would still be awaiting procedures for cases that produce the problems of wrong- execution, or would have testing results favorable to a petitioner. ful convictions. The vast been executed, for crimes majority of criminal cases they did not commit. As do not include biologi- of June 2008, all but seven states have laws address- cal evidence that could definitively determine the ing post-conviction DNA testing. Many states’ laws, identity of the perpetrator through such an accurate however, are too lax in their standards for preserving testing method. Still, where such evidence is avail- evidence, and the windows in which a defendant can able and can provide compelling information about a introduce “new evidence” are often unduly narrow. criminal offense, justice demands that DNA testing Furthermore, most state laws fail to provide adequate be conducted. 1 WWW.TH E JUSTIC E PROJECT.ORG EDUCATION THE JUSTICE PROJECT FUND The Justice Project has developed this policy and by recommending positive reforms that can sig- review to facilitate communications among the legal nificantly improve its practice. By implementing the community, local law enforcement agencies, poli- reforms recommended in this policy review, states cymakers, the public, and others by explaining the can significantly increase fairness and accuracy in the problems surrounding post-conviction DNA testing, criminal justice system. PROBLEMS & SOLUTIONS he passage of post-conviction DNA testing their laws. The following reforms will allow states to Tstatutes acknowledges the serious flaws in our remedy many of their failures to do justice. system of justice while providing an opportunity to increase the credibility and quality of the system. States should require the preservation of In 2004, Congress passed the Innocence Protection biological evidence throughout a defendant’s Act (IPA), which authorizes federal funding to states sentence and devise standards regarding whose programs comply with certain requirements custody of evidence. of the Act. While the Innocence Protection Act put The loss or destruction of DNA evidence jeop- the federal government at the forefront of post-con- ardizes the integrity of the criminal justice system. viction DNA testing, there are still seven states that After spending twelve years in prison, Kevin Byrd was do not have post-conviction DNA testing statutes.3 exonerated based on DNA evidence. At the time of his Of the states that do have exoneration and pardon, then- post-conviction DNA testing The loss or destruction of Governor George W. Bush said statutes, many limit access to he expected Byrd’s to be the post-conviction DNA testing DNA evidence jeopardizes first of many re-examinations by allowing the destruction the integrity of the criminal of old cases using preserved of evidence or unreasonably DNA evidence. However, with- limiting the conditions under justice system. in a week, evidence custodians which a defendant can petition at the Harris County Clerk’s for testing.4 In some states, innocent people remain office willfully destroyed at least fifty old rape kits in imprisoned due to legal and bureaucratic hurdles storage, making any relief for others wrongfully con- that prevent post-conviction DNA testing. In Idaho, victed extraordinarily difficult, if not impossible.6 The for example, a defendant only has one year to file a Supreme Court had ruled in Arizona v. Youngblood that post-conviction DNA testing petition.5 Historically, loss or destruction of evidence is a violation of due courts have limited the amount of time one can peti- process if it is done in an act of “bad faith.” 7 However, tion for relief because “new evidence” has tradition- Texas and federal law sanctioning the destruction of ally become less reliable as time lapses. DNA evi- these kits effectively precluded any claim that the dence is different. In fact, DNA evidence can last for destruction was an act of “bad faith” as well as any decades, and can be used to prove guilt or innocence judicial censure on those grounds. Mr. Byrd’s own with greater accuracy long after cases close. Statutes evidence had been slated to be destroyed before it was that limit accessibility to such powerful evidence tested. Whether due to a filing error or an unknown compromise the fairness and accuracy of our criminal party’s intentional intervention, his evidence was saved, justice system. and it proved his innocence. Statutes requiring preser- States should enact laws requiring the most vation of evidence would significantly expand oppor- expansive use of DNA evidence possible. States with tunities to correct otherwise irreversible errors. post-conviction DNA testing statutes that create bar- Currently, all but twelve states (and the District riers to accessibility of such evidence should revise of Columbia) lack statutes requiring the preservation 2 WWW.TH E JUSTIC E PROJECT.ORG EDUCATION THE JUSTICE PROJECT FUND of evidence throughout an inmate’s incarceration.8 analysis (RFLP), matched a suspect to DNA at the Even in states with such statutes on the books, rules rate of one in many millions, but required relatively regarding the preservation of evidence are often large and well-preserved samples and took up to ignored. In New York City, for example, despite the six weeks to analyze. The short tandem
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