July 2009
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By Jonathan Wallace jw@bway.net


The Supreme Court has just ruled that the Constitution does not require the states to offer convicted criminals DNA testing in their efforts to clear themselves of the crimes of which they were convicted. The case came from the glorious, rational, compassionate state of Alaska, which has some vague putative rules under which no convict has ever successfully obtained a DNA test.

            The Supremes based their ruling on several factors which, examined in a vacuum, make some sense. They regarded the availability of DNA testing for convicts to be a matter most properly addressed by Congress, and one in which they did not wish to intervene prematurely. And they also paid some attention to the idea that court procedures need to end somewhere. The lack of finality,  the expense of constant appeals and habeas proceedings, and the effects on victims’ families who never receive closure, have all been name-checked numerous times in this debate.

            One of my goals in writing articles for the Spectacle has been to expose the meta-data whenever I thought I understood it, and the debate over DNA testing takes place against a huge backdrop of unquestioned assumptions that receive way too little attention in mainstream media and politics. While much has been said, pro and con,  about the fallibility of the legal process, relatively few analysts seem to take it up a level and discuss the fact that the DNA debate (similarly to the death penalty controversy) is a by-product of competing and highly inconsistent world-views. In other words, what is truly at stake when we argue that the legal system is flawed, or perfect?

            Before I get into that, I would like to note first that here is another example of one of my particular areas of fascination, the zone in which the debate over moral issues becomes imperceptibly, yet incoherently, mixed with practical concerns. People in favor of DNA testing usually start from a moral high ground position that it is unfair and unjust to deny the accused, even after conviction, any evidence that would establish actual innocence.  The only consistent response to this, which stays on the same moral plane, is that it is not unjust or unfair to convict the innocent sometimes, if they received every procedural protection. Instead, the opponents of DNA testing, afraid to take a public stand in favor of convicting innocent people, fall back to merely practical (and really quite unbelievable) arguments that the system is perfect, no-one is ever wrongly convicted, or is cleared if they are, etc.

            Lets stop a moment to examine that one. In the death penalty debate, supporters of death point to the number of people exonerated by DNA evidence, to argue that the system functions perfectly and the innocent are never executed. Many of these same people undoubtedly then argue against the granting of DNA testing, the very thing which brought about these exonerations, on the ground of expense, lack of finality, etc.

            The question of whether the legal system is perfect, in that it never convicts the innocent,  seems to me to be one that can be settled by a very simple thought experiment. The legal system is a result of human engineering, in the same way that the stock market is, nuclear power plants, bridges, mortgages, and the space shuttle. I wonder if there is anyone reading this who disagrees with the preceding proposition? If you agree with the basic premise that the legal system, like these other things, is the result of human planning, rule-making and solution seeking, it seems to me very hard, nigh impossible, to say:

            Bridges fall, markets crash, nuclear power plants have melt-downs, mortgages sink underwater, and shuttles explode, but the innocent are never convicted.

            Isaiah Berlin said, “Out of the crooked timber of humanity, no straight thing was ever made.” Here is where we get to the competing world views. One camp says that humanity is irredeemably imperfect, will inevitably make terrible and fatal errors, and that therefore, we should build in every protection, every safeguard possible, that we should hesitate in making any decision which takes away human liberty or life. The other camp is forced to argue, or perhaps cheerfully takes the position that humanity is perfectible, that we may be individually faulty but collectively, acting through our justice system and jury system, we will never convict the innocent.

            I suspect that the proponents of these two world-views are not equally in good faith. I doubt there are many people arguing for the fallibility of humans who secretly believe in their perfection. But I think there are many influential people, politicians and commentators (Dick Cheney, Newt Gingrich, Rush Limbaugh, Sarah Palin) arguing for the perfection of humanity, who secretly know the opposite is true. In their minds is a belief to which they will never admit, that the conviction of some innocent people is simply the price we pay for having a legal system in the first place, that the convicted and executed innocent are simply collateral damage, the eggs we break to make the omelet of society.

            A result of this is the spectacle of prosecutors and state governments fighting like motherfuckers to avoid ever acknowledging a mistake. The semen taken from the victim excludes the man she identified in a line-up as her attacker? Maybe he was there anyway, says the prosecutor, helping some other person as yet unidentified. Maybe she had consensual sex with someone an hour earlier without admitting it to the police, and her attacker raped her without leaving his own DNA. And the beat goes on.

            Hundreds of people have been freed when newer, more sensitive and accurate DNA testing excluded them, and in a large subset of these cases (including some high profile ones, like the Central Park jogger), the actual culprit has been identified. Rarely have prosecutors stepped up to admit an error; often, years of expensive court proceedings have been required to reach the obvious conclusion.

            By the way, a few judges along the road have been more honest than the norm. There is some case-law which says that when all available procedural rights have been exhausted, proof of actual innocence is not a basis for a grant of habeas corpus. The premise is that the individual is procedurally guilty even if actually innocent. Collateral damage and omelet-making. I can’t imagine a starker, more truth inducing litmus test question for a judge or politician than: “Do you believe that an individual’s actual innocence, no matter how belatedly or expensively proved, is ever irrelevant to the justice process?”

            The holy grail of death penalty opponents has been to find irrefutable proof of the execution of an innocent man. While there are numerous recent cases in which suspicion is strong, there isn’t yet one in which the injustice has been shown to be indisputable. I submit that this is not because the system is perfect, but because the people who are the foundation of the system (politicians and commentators) link arms and fight a ferocious last ditch effort, to prevent ever acknowledging a malfunction of the death penalty.

            While there are some people who genuinely believe the system is perfect, they tend to be more naïve and outside the corridors of power, like those young libertarians who believe that the free market system could never result in the destruction of a coral reef.

            Even in the case of the committed, the true believers, I think that theirs is an example of a priori reasoning, which goes something like the following: “The justice system must be perfect, because if the innocent are sometimes caused to serve long prison terms without exoneration, or are even executed, this would be a cruel and meaningless world.” This is essentially the same argument used frequently to argue that God must exist; it isn’t logic but something argued to be above it or prior to it, but which can never be tested.

            As to those who really know the truth, and nonetheless fight for the perfection of the system, their secret rationale must be: “If we admit the flaws in the system, we will lose credibility, and a loss of credibility may lead to a loss of authority and even power.”  In other words, if we don’t continue convicting and executing some number of innocent people, everything will fall apart.

             This argument is morally indistinguishable from that now being made by powerful people in Iran, fighting to sustain the validity of a stolen election.