This week at the Supreme Court, the Obama administration took a position that both surprised and dismayed the president’s supporters in the criminal-justice and civil-rights communities. The Department of Justice’s action was “pretty disappointing,” says David C. Fathi of the civil-rights organization Human Rights Watch. "It isn't consistent with Obama's history of fighting for more access to DNA testing."
At issue in District Attorney's Office for the Third Judicial District v. Osborne is whether the US Constitution allows state governments to withhold potentially exonerating DNA evidence from defendants who have duly exhausted all appeals. The defendant, William Osborne, was convicted of a rape and kidnapping in Alaska in 1993. At that time, primitive DNA tests on a degraded semen sample narrowed the field of possible perpetrators to 16 percent of black men, including Osborne.
The administration's position isn't consistent with Obama's history of fighting for more access to DNA testing.
The state concedes that modern DNA testing would establish conclusively whether Osborne is guilty or innocent, and Osborne's attorneys at the Innocence Project offered to pay for the $1,000 test. Yet Alaska has refused to turn over the semen sample, on the grounds that Osborne’s trial produced more than sufficient proof that he committed the crime. “If there was other doubtful evidence,” Ken Rosenstein, the state’s lead attorney on the case, told the Anchorage Daily News, “things might be different."
Alaska is one of six states that provide no statutory right to post-conviction DNA testing. Osborne’s lawyers hoped to establish a constitutional right to that testing. But, surprisingly, the new administration backed the state of Alaska.
While Obama was a state senator in Illinois, the Chicago Tribune and a Northwestern University journalism class uncovered serious deficiencies in the way the state was prosecuting death-penalty cases. Eventually, 18 death-row inmates were exonerated in Illinois, prompting Gov. George Ryan to declare a moratorium on executions.
Obama co-sponsored a bill in the Illinois legislature that ensured access to potentially exonerating DNA evidence. When he ran for president, his website touted a 1999 article in which Obama called for more widespread access to DNA testing.
Asked about the apparent contradiction between those actions and the DOJ’s position on Osborne, Department of Justice spokesman Matthew J. Miller said in a written statement, “The president has supported legislation giving access to post-conviction DNA testing in appropriate circumstances, and to date 44 states and the federal government have enacted DNA testing statutes. The solicitor general’s position in the case does nothing to draw into question the validity of, and the great need for, DNA testing statutes.”
But it does stop well short of endorsing a federal right to such tests. Yet if being able to prove one's innocence is as important as Obama has said it is, why shouldn't the citizens of Alaska (or any of the other five states with similar laws) be guaranteed the same access to testing as the citizens of Illinois?
Obama is no federalist. Nor has he, in the past, subscribed to the sort of “originalist” arguments that say we can’t read rights into the Constitution that weren’t there in the beginning. Yet that is the gist of the federal government's brief in Osborne, which says “There is no tradition in this country of granting convicted criminals post-conviction access to the prosecution’s evidence locker…. And constitutional rights do not spring into existence simply because science has advanced.”
On the other side, one amicus brief filed on Osborne’s behalf by several former prosecutors (including former US Attorney General Janet Reno) points to several cases in which prosecutors vigorously fought DNA testing for years. When the tests were finally done, they not only cleared the defendant, but, by using DNA databases, identified the actual culprit, who in some cases had gone on to commit more crimes. It also noted that there have been earlier cases, similar to Osborne’s, in which defendants convicted on apparently “overwhelming’ evidence” of guilt were later exonerated by DNA testing.
In the end, the more likely explanation for the Obama Justice Department’s position in Osborne is inertia and deference to tradition. The Bush administration wasn't obligated to take a position Osborne, but it did anyway, filing a brief just days before Bush left office. That's the brief that Obama's deputy solicitor general defended on Monday, continuing the tradition by which a new administration generally argues the old administration's positions in holdover federal court cases.
The argument is that this tradition somehow preserves the integrity of the solicitor general's office. But the solicitor general serves at the pleasure of the president, and is supposed to represent an administration's opinion of what the law is, or ought to be. A change of party in the White House is of course going to bring a change in legal philosophy.
If you happen to be someone wrongly incarcerated in one of the six states that don't guarantee post-conviction DNA testing, hoping for access to the evidence that could set you free, it must be pretty hard to swallow the idea that reverence for some procedural tradition may have prompted the "hope and change" president to argue you have no right to prove your innocence.
Radley Balko is a senior editor for Reason magazine, and maintains a blog at TheAgitator.com.