NEW VOICES: Former FBI Chief Expresses Concerns about Innocence and the Death Penalty

In a guest column published in the Jurist, former FBI Director William S. Sessions underscored the importance of making DNA testing available for those facing execution. He also encouraged states to thoroughly review their capital punishment systems and to make reforms to ensure greater reliability. DNA testing, he noted, has revealed that police often do not have the right suspect in serious crimes. In about 25% of the cases where DNA was available and a suspect had been arrested, testing showed that the wrong person was being pursued. He applauded New York Governor Eliot Spitzer’s recent proposal to expand access to DNA testing and an Ohio Supreme Court ruling liberalizing DNA testing for inmates. Sessions noted:

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.
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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.
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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.
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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.

(W. Sessions, “DNA Evidence and the Death Penalty,” Jurist, May 30, 2007). See Innocence.