OUR VIEW: Postconviction DNA testing should be available whether it's a constitutional right or not

Posted by The Editorial Board June 27, 2009 2:01 AM

The U.S. Supreme Court says people who were wrongly convicted of old crimes have no constitutional right to the DNA testing that could prove their innocence.

The justices, in a 5-4 ruling last week, said it's not their job to say who should get DNA testing in old criminal cases. Rather, it should be up to Congress and state legislatures to make the call, and the court indicated satisfaction with what it called a "prompt and considered legislative response" on the issue.

Surely, though, the court wasn't thinking about Alabama. This past session, after years of efforts, our Legislature finally passed a postconviction DNA law, and it was one of the last states in the union to do so. (Only three states still don't have such a law. One of them, Alaska, generated the case decided by the Supreme Court.)

Moreover, the Alabama law is extremely limited by design. It allows only those convicted of capital crimes to petition for DNA testing -- and under such narrow circumstances that some experts believe it will be harder to get testing now than it was before the law passed.

In just one example, the Alabama law allows DNA testing only if the guilty party's identity was an issue at trial. That sounds perfectly reasonable on the surface. But some people who have been exonerated by DNA evidence pleaded guilty, so there was no trial, and no "question" about the identity of the perpetrator. What happens to them under Alabama's law?

Certainly, there must be a process with some restrictions, but the goal should be to make this latter-day, crime-solving method available wherever it could exonerate a wrongly convicted person -- and identify the person who got away with the crime.

Don't forget that last part, although Alabama officials sure seem to.

Like a number of their counterparts in other states, many Alabama prosecutors and law officers resist DNA testing in old cases as a matter of course. They are either so convinced they are right, or so worried at the prospect of being proved wrong, they prefer to keep a tight lid on that can of worms.

The U.S. Supreme Court could have pried open the lid for those hoping DNA will clear them of old crimes, and their refusal was a disappointment.

But all is not lost. As the justices said, the court doesn't have to make DNA testing a constitutional right for states to make it available to those who may have been convicted of crimes before the science was adapted for law enforcement.

Alabama can and should make it easier for anyone convicted of a crime involving biological evidence to have DNA tests performed. What is there to lose? If the tests confirm guilt, fine. If they prove innocence, shouldn't we want to find out?

This isn't about defendants' rights; it's about the state's responsibility to ensure that injustice doesn't stand and that justice is done.