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.
…

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.
…

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.
…

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.

Tags
Citation Guide