Asserting the Right to DNA Testing


An editorial

in Saturday’s New York Times applauded Attorney General Eric Holder for overturning the controversial policy created under President George W. Bush that required federal defendants to waive their right to DNA testing in order to plead guilty.

Innocence Project Co-director Peter Neufeld said that 19 of the 261 people exonerated through post-conviction DNA testing pleaded guilty to crimes they did not commit. For many reasons – including mental health issues and aggressive law enforcement tactics – innocent people sometimes confess to crimes they did not commit. The Times wrote:

In 2004, over the vigorous objection of the Bush Justice Department, Congress passed the Innocence Protection Act, intended to ensure that inmates challenging their convictions had access to DNA testing. Language added to the measure at Republican insistence also allows defendants to waive their right to DNA testing. The Republicans argued that would cut down on frivolous requests for testing and court challenges.

The full significance of the waiver provision emerged only last year. The Washington Post reported that soon after the law passed, the Bush Justice Department sent a memo to the nation’s 94 United States attorneys directing prosecutors to insist that defendants pleading guilty as part of a plea bargain relinquish their right to DNA testing even if new evidence emerged.

This not only ignored the problem of false confessions, it cynically gutted the intent of the 2004 law.

Not every United States attorney has followed the Bush-era directive, but the DNA waivers reportedly have been part of the standard plea agreement filed in federal court by prosecutors in Manhattan, the District of Columbia and Virginia, and they have been used with some frequency in many other jurisdictions.

By forcing people to relinquish their right to post-conviction DNA testing, the Bush Justice Department put  securing convictions above the prosecutor’s primary responsibility to seek truth and justice.   By resending this ill-conceived policy, Attorney General Holder is reminding DOJ lawyers of their duty to put truth and justice first. 

Read the full editorial


Learn about access to post-conviction DNA testing


See a list of the

19 DNA exonerees

who pled guilty to crimes they didn’t commit.

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