DNA Testing is Ok For the State – But Not Ok for Prisoner Who Wants to Prove His Innocence

Why the Supreme Court Gets It Wrong

Recently the Supremes said that it was Constitutional for law enforcement to take a DNA sample from a person arrested on suspicion of committing a felony.  This Forum reluctantly agrees with that decision.  One of the great horrors would be if a person were arrested, not tested and later it was found out that the person was a violent felon wanted for vicious attacks who went on to commit horrendous crimes.

The feeling here is that once you allow things like fingerprinting taking DNA is just a logical extension.  Government has the right to take fingerprints and run them through a data base to see if the arrested person should be retained on other charges.  Using DNA is just another means to the same end.

But an attorney who works on proving innocent people are in jail, and who so far has exonerated over  300 jailed felons who were shown to be innocent by DNA testing raises a valid point about hypocrisy on the Supreme Court.

Justice Anthony M. Kennedy, writing for the five-justice majority, drew on a 2000 book by the founders of the Innocence Project and a newspaper columnist to explain why this was a good idea.

“In the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense,” Justice Kennedy wrote. Then he quoted from the book, “Actual Innocence.”

Ok, that sounds good, but but but

Justice May be
blind, but Conservatives on the
Supreme Court are
deaf and dumb

In 2009, Justice Kennedy joined the majority opinion in a 5-to-4 decision that said prisoners had no constitutional right to DNA testing that might prove their innocence. Mr. Neufeld, who founded the Innocence Project with Barry Scheck, represented the prisoner on the losing end of that case, District Attorney’s Office v. Osborne.

But last week, Mr. Neufeld said, Justice Kennedy concluded that “it’s O.K. for the state to take DNA, without a warrant, from mere arrestees, who may ultimately have their charges dismissed.”

The combination of the two decisions baffled Mr. Neufeld. “That is quite a worldview,” he said of a jurisprudence that allows nonconsensual testing of people presumed innocent but denies voluntary testing to people who insist that they really are innocent.

The idea that a prisoner, even after he or she is convicted, cannot use all means to prove innocence is just baffling.  The 14^th amendment guarantees due process, but a Supreme Court that is hostile to rights refuses to provide convicted prisoners with the right to show innocence, even after technology has been developed that wasn’t available to that prisoner before.

That statue of blind justice over the Supreme Court building must cringe every time Scalia, Kennedy and company enter.