Bob Barr

I'm a believer in DNA tests to clear 'guilty'
December 14, 2005

Several years ago, while I served on the House Judiciary Committee, I participated in debates concerning whether to enact federal legislation establishing a national DNA testing program to provide a framework within which states would be encouraged to implement mechanisms to determine whether those convicted of serious crimes were wrongly convicted.

The legislation would also provide federal funds to assist in such an effort. At the time, I was skeptical. The arguments and testimony presented in support of the legislation were neither consistent nor particularly sound. Yet, those advocating such a protocol, especially the Innocence Project founded in 1992 at the Cardozo School of Law at Yeshiva University, persisted - not just in Washington, but in state legislatures across the country.

Slowly but surely, they built credibility by persistence, developing sound data, and not overplaying their hand. The work of the Innocence Project and others advocating for the wrongly convicted has resulted in 164 exonerations in the past 13 years.

Congress eventually passed federal legislation - the Justice For All Act - signed into law in October 2003 by President Bush. Georgia passed legislation providing a mechanism for post-conviction DNA testing in serious felony cases the same year. The fact that it was Republican chief executives in both instances who signed such legislation speaks to the bipartisan nature of this effort.

Yet, much remains to be done to establish a truly meaningful DNA-relief regimen for those convicted of serious felonies in federal and state courts. The recent case of Robert Clark, freed after a quarter-century behind bars in Georgia following his exoneration by post-conviction DNA testing, highlights the benefit of such a process. This and similar cases has made a believer out of me.

It is important to bear in mind that the legislation that established the mechanism whereby the Innocence Project was able to secure Clark's release, and the related federal law, does not guarantee a DNA test for every inmate who has a hankering to delay his or her execution - if convicted of a capital offense - or who simply pines for their freedom from a lengthy - perhaps a life - prison sentence.

There must be a high degree of finality to our criminal justice system for it to have the credibility essential to protect society and secure the rights of the accused. That being said, and recognizing we are not addressing those minority of cases in which the integrity of the prosecutorial process is drawn into question, such cases should and must be dealt with. A moral system of justice must never be so blind or inflexible that it refuses to admit error.

Georgia's 2003 law and the model DNA-testing statutes advocated by the Innocence Project reflect the proper balance. For example, they require the petitioner in behalf of a person convicted of a serious felony establish a reasonable claim of innocence, and a clear link between the conviction and DNA evidence.

The government must establish reasonable, professional and consistent standards for DNA testing; reasonable access to DNA evidence that is required to be retained under proper conditions for a reasonable period of time; and a procedural mechanism that is not so inflexible or constrained that it is virtually impossible to meet. Beyond this, programs should be set up in such a manner as to properly prioritize cases and be directed to a specific office in order to ensure access and consistency.

Of course, sooner or later, funding becomes an issue. The Innocence Project, for example, which is better funded perhaps than many other prisoner-rights projects maintained by private entities, still operates on a budget that is miniscule compared to the funds available to federal, state and local governments. The federal legislation, which provides authorization for federal tax dollars to be made available for qualified state DNA testing programs, remains essentially unfunded.

While states need not and should not await federal funding before establishing and implementing their own programs (as nearly 40 states have done thus far), constitutional issues of due process and equal protection, in my view, establish a sound basis on which federal funds should be made available - a far sounder basis than exists for perhaps the vast majority of purposes for which federal funds are now used (can you say National Endowment for the Arts?).

Post-conviction DNA testing to exonerate those convicted of serious crimes is a remedy whose time has come. Just ask Robert Clark.

Former U.S. Rep. Bob Barr is a frequent commentator on political and social issues and the chairman of the American Conservative Union Foundation's 21st Century Center for Privacy and Freedom