DNA and the Death Penalty
As a result of television shows such as CSI, NCIS, and Law & Order, a common misconception has emerged that DNA testing has made identifying and convicting killers a slam dunk.
These shows make it seem so easy: a crime happens, DNA evidence is collected at the scene, it is run through the CODIS database and voila! A killer is identified!
What TV producers have left out of the narrative: DNA evidence is only available in a small fraction–approximately 10%–of murder cases, usually those involving a sexual assault; many crime labs are underfunded and understaffed, so rape kits and other DNA samples can sit for months and sometimes years before being tested; and the testing process itself is not immune to human error.
All you have to do is read the news this week about the crime lab in San Francisco (where an employee was stealing drugs) to realize how inadequate standards still are for the handling and testing of evidence, biological or otherwise, in most parts of the country. Remember the Houston crime lab scandal.
This is not to say that advancements in forensic science have not been vastly important to improving the accuracy of our criminal justice system.
Without the use of DNA technology, groups like The Innocence Project could not have helped to identify 251 cases of wrongful conviction nationwide, including many individuals who have been on death row.
What we’ve learned from these cases of wrongful conviction is that eyewitnesses are often mistaken, informants lie, lawyers can be incompetent, “experts” are sometimes not experts at all, and occasionally, individuals even falsely confess to crimes they did not commit.
Just look at the case of Jennifer Thompson, who was positive that Ronald Cotton was the man who raped her in 1984. She thought she would never forget the face of the man who assaulted her—she studied his face—committed it to memory. Ten years after Cotton was convicted, DNA testing proved she was mistaken. The case everyone thought was so airtight suddenly shattered. The real rapist, who had previously confessed to the crime, was finally apprehended.
In 40% of these cases, the actual perpetrator is identified using DNA testing, but not before the innocent person has spent an average of 13 years behind bars.
These cases of wrongful conviction involving DNA evidence, while remarkable, are just the tip of the iceberg. Are eyewitnesses mistaken less often in cases where no biological evidence exists? Are informants less likely to lie? Are lawyers more competent in these cases? Is the use of junk science by pseudo experts less common? And are individuals less likely to falsely confess when there is no biological evidence tying them to the crime? The resounding answer is “no”.
The vast majority of 139 individuals who have been released from death row because of wrongful conviction did not have DNA evidence to prove their innocence. They have had to rely on new witnesses coming forward and other newly discovered evidence. In the case of Anthony Porter, who came within hours of execution, it took a group of enterprising journalism students who went out and found the real killer to prove Porter was innocent of the crimes for which he was convicted. Who knows how many other innocent men and women are sitting on death row, unable to meet the legal threshold for establishing their innocence?
It begs the question, should prosecutors still be allowed to seek the death penalty in the 90% of murder cases that don’t have biological evidence?
Last year, Maryland legislators enacted the most restrictive death penalty statute in the country by requiring there either be conclusive DNA evidence tying the accused to the crime, or a video of the person actually committing the crime, or a voluntary videotaped confession by the killer. This measure will likely reduce the error-rate in capital cases to a minuscule percentage, and it will also drastically reduce the number of cases eligible for the death penalty.
So why aren’t more states willing to enact provisions like this which will help prevent the execution of an innocent person even if it means fewer people will land on death row?
Even in Maryland, at this very moment, a few legislators are trying to undercut the new death penalty statute in order to reduce its restrictiveness.
Why are some politicians so wedded to a system which risks executing innocent people, costs far more than the alternative sentence of permanent imprisonment, is applied in an arbitrary manner, and drags victims through years of painful appeals?
The common response I hear is that there are some people who commit such heinous crimes that they do not deserve to live. Perhaps the real issue, however, is not whether some people deserve to live, but whether we have the right to kill them, especially if we are not committed to reducing the very real possibility of error.
Photo from: http://www.morguefile.com/creative/clarita
By Stefanie Faucher, Associate Director of Death Penalty Focus