Joe McCulloch called me this morning to give us a heads-up on something. The House agreed on Thursday to recall a bill from committee that would allow people who are convicted of murder, rape and a handful of other violent crimes to have DNA testing done if they can convince a judge it would likely prove them innocent. The bill has passed the Senate, so there’s a chance it could become law this year, if the House approves it this coming week. Here’s the editorial we wrote about it earlier this month:
Post-conviction DNA testing
protects all of usWHEN THE WRONG person is convicted of a crime, the only clear winner is the actual criminal – although police and prosecutors might appear to be winners, since they were able to score a conviction. The person wrongly convicted certainly doesn’t win, and in fact we do incomprehensibly grave harm to that person. Neither do the rest of us, who are less safe because the real criminal remains free to harm others.
We don’t have reason to believe that a large number of people are wrongly convicted in South Carolina, but we do know that our laws are not adequate to right the wrong when it does occur. A bill passed last month by the Senate (S.429) would correct part of the problem, by adding our state to the 44 others that allow people convicted of murder, rape and a handful of other violent crimes to have DNA testing done if they can convince a judge it would likely prove them innocent.
Under current law, there’s no mechanism for such testing; in most cases, judges can’t order DNA testing – or do anything about it if such testing is somehow done and demonstrates the convict’s innocence – unless the solicitor agrees to the request.
That wouldn’t be a problem in an ideal world, because the job of prosecutors is to do justice, and so they would be just as anxious as anyone to make sure the wrong person isn’t in prison. The reality is different. Prosecutors are human and dislike admitting their mistakes; and besides, they grow cynical from hearing the inevitable claims of innocence from criminals who really aren’t innocent, so with rare exceptions, they fight tooth and nail against those claims.
One of the main criticisms of laws to facilitate claims of innocence is that they would be abused by prisoners who, with all the time in the world on their hands, will pursue any avenue of appeal that’s opened to them. That’s always a risk, but the bill’s sponsor, Sen. Gerald Malloy, projects that no more than five to 10 requests would be made each year. That’s in part because the bill is a double-edged sword for prisoners who really are guilty: If the DNA testing confirms their guilt, they are subject to contempt of court, revocation of good-time credits and denial of parole requests. Perhaps more importantly, it requires that any new DNA samples be run through state and federal databases, to see whether the prisoner can be tied to unsolved crimes.
Senators tried to address concerns about the cost by putting an annual limit of $150,000 on the amount of money the state would spend to provide DNA testing for prisoners who can’t afford it themselves. But that doesn’t address the larger potential cost, in increased demand on our already overburdened and underfunded courts. That cost is not a sufficient reason to reject the legislation – but it is reason to give the courts the resources they need to do their job. Another way to hold down the cost might be to eliminate the appeals procedure, and make the judge’s decision on whether to order testing final.
There is certainly room for debate over precisely how such a program should operate – and we hope that the House will engage that debate before lawmakers adjourn for the year. But we have not heard any convincing arguments why our state should continue to bar the courthouse door to inmates with reasonable claims that a simple test can prove their innocence.
A way to prove the innocent innocent, and the guilty guilty. It’s hard to see why this wouldn’t pass in a heartbeat.