DNA Evidence and the Death Penalty

JURIST Special Guest Columnist and former FBI Director William S. Sessions says that Governor Eliot Spitzer's recent proposal to expand the New York DNA database and an Ohio Supreme Court ruling liberalizing DNA testing for inmates should be welcomed as necessary and overdue efforts to protect public safety while pursuing meaningful justice, especially for prisoners facing the prospect of capital punishment...



New York Governor Eliot Spitzer recently made headlines by announcing a plan to expand New York's DNA database to include genetic samples from those convicted of all felonies and most misdemeanors. The Governor's proposal — which would immediately increase the size of New York's database by at least twenty percent — would also require that samples be taken from all New Yorkers in prison, on probation or parole, or registered as sex offenders. A significant provision of the proposal would greatly expand the ability of inmates to obtain DNA testing that might prove their innocence. The Ohio Supreme Court addressed a similar issue this April when it struck down part of a state law that gave prosecutors control over which inmates were given DNA tests.

Governor Spitzer's proposal and the Ohio Supreme Court's decision should both be welcomed as necessary and overdue efforts to protect public safety while pursuing meaningful justice.

When I became Director of the Federal Bureau of Investigation in 1987, few in the criminal justice system knew much about DNA, and nobody fully understood how it would revolutionize our work. Shortly after I became Director the FBI established a DNA laboratory we hoped could be used to verify that a suspect had indeed committed a crime. During my years as a U.S. Attorney and federal judge in Texas I had seen rapists and murderers walk free for lack of biological evidence; these were the cases I had in mind when we established the laboratory in Washington, D.C.

One such case, half a country away from my Texas office, haunted even the most hardened prosecutors. In the summer of 1973 Kathleen Ham was brutally raped at knifepoint in her Manhattan apartment. When a jury failed to convict her alleged attacker, her life was put on hold and her sense of justice forever diluted. At the FBI we hoped that DNA matching technology would allow us to solve cases like Ms. Ham's and bring some justice to victims whose attackers were tried but never convicted.

By October 1988 the FBI's DNA lab had completed an analysis of biological evidence in 100 active cases. My colleagues and I anticipated that this federal initiative would enable local prosecutors to address questions that had previously been left unanswered. We were right, but not entirely in the manner we expected.

The results of those first 100 tests astonished me. In thirty percent of cases the DNA gathered during the investigation did not match the DNA of the suspect. In three out of ten cases not only did we have the wrong person, but the guilty person was still at large. In capital cases the stakes were unnervingly high: the prospect of executing an innocent person was only slightly more appalling than the prospect of murderers and rapists walking free, unidentified and dangerous.

The statistics today are roughly the same as they were 19 years ago. In approximately 25 percent of cases the genetic evidence recovered during an investigation does not match the DNA of the suspect. Oftentimes this discrepancy is discovered before irreparable harm is done to either the investigation or the suspect; however, too often we learn of our mistake only after time, money, and sometimes lives have been wasted on empty pursuits.

DNA evidence has supported more than 30,000 prosecutions and has led to more than 200 exonerations, including those of fifteen death row inmates. This last group, Americans sentenced to die for crimes they did not commit, stands to gain the most from greater access to DNA evidence. Though most prosecutors are dedicated to the pursuit of justice, for years too many have hidden existing DNA evidence or denied reasonable requests for genetic testing. Granting death row inmates access to DNA testing should be only one of many steps taken to confirm the guilt of suspects of capital crimes; the finality of the death penalty demands that our dedication to honest justice be absolute.

Governor Spitzer's plan and the Ohio Supreme Court's decision, both of which will allow more suspects and prisoners to obtain these genetic comparisons, should be welcomed by supporters and opponents of the death penalty alike. When more juries are able to consider genetic evidence that a suspect committed a crime, our neighborhoods will be safer places to live. When the wrongfully convicted are given every opportunity to exonerate themselves, our neighborhoods will be better and safer places to live.

Some have objected to Governor Spitzer's plan and ones like it on the grounds that the storage and management of sensitive genetic information is too cumbersome a task to ensure the protection of an individual's personal information. Others have rightly taken issue with Governor Spitzer's proposed one-year limitation on challenges to convictions, except those based on newly-discovered evidence such as DNA.

These concerns should not be used to arrest real progress. They should, however, be addressed as states continue to improve public safety and allow the wrongly convicted to exonerate themselves. To enable the pursuit of justice, we must work to craft legislation that will protect sensitive genetic information and give all prisoners' the right to challenge their convictions.

I applaud both the New York proposal and the Ohio Supreme Court decision regarding DNA testing. However, much remains to be done to improve our country's criminal justice system, especially in capital cases. Reviews of state capital punishment systems have been ordered from the bench and governors' mansions around the country, and with good reason. I encourage state legislators considering systemic reforms to consider the recommendations of the Constitution Project's Death Penalty Committee, a bipartisan coalition of policy experts, legal scholars, and former government officials. The Committee includes opponents and supporters of capital punishment, and I have joined them in calling for substantive reform of how America tries and sentences suspects in capital cases. The delivery of justice also requires competent, well-trained, well-resourced lawyers for defendants in death penalty cases while simultaneously reserving capital punishment for only the most heinous of crimes.

It took more than thirty years for justice to be done in Kathleen Ham's case. The same man the jury had failed to convict in 1973 was identified — in 2005 — by a persistent New York prosecutor who matched genetic material gathered during the original investigation to a sample in the FBI's national database. But for every story like Kathleen Ham's there is a story like Clarence Elkins'. Last year, Elkins, who served six years in an Ohio prison, was exonerated after DNA analysis — testing he was denied in 2002 — revealed another man had committed the murder for which he was convicted.

These stories and other like them should serve as potent reminders that justice and safety are mutually reinforcing. Only by pursuing justice to all ends will justice ultimately be served.


William S. Sessions is a partner at the Washington law firm of Holland & Knight LLP and a member of the Constitution Project's Death Penalty Committee. Sessions previously served as the United States Attorney for the Western District of Texas and as Chief Judge of the United States District Court for that district. He later served as Director of the Federal Bureau of Investigation under Presidents Ronald Reagan, George H.W. Bush, and Bill Clinton.
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