So, last week the Supreme Court ruled that criminal defendants have no constitutional right to access DNA evidence after they are convicted — a position defended by the Justice Department.
The department’s decision not to disavow the Bush-era stance, to the utter disappointment of innocence advocates, underscored ”the tension between the eagerness of interest groups for a new administration to change direction, and the institutional reluctance in the solicitor general’s office to shift gears too suddenly, for fear of losing credibility with the high court,” The National Law Journal’s Tony Mauro wrote in this February piece.
Last week, we reported that Attorney General Eric Holder seemed to address that tension, distinguishing between “what is constitutional” and “good policy.”
In his speech at the at the American Council of Chief Defenders Conference in Georgetown, Holder once again explained the department’s stance on the issue:
The Department’s commitment to ensuring that justice is done is why, for example, I think defendants should have access to DNA evidence in a range of circumstances. DNA testing has an unparalleled ability to exonerate the wrongfully convicted as well as to identify the guilty. As you know, the Supreme Court held last week that there is no substantive due process right to access DNA evidence in post-conviction proceedings. But the Department distinguishes what is constitutional from what is good policy. And we have maintained that in a full and fair justice system, it is good policy to permit such access. Federal law already guarantees access to DNA evidence held by the federal government under specific conditions, and I hope that all states will follow the federal government’s lead on this issue.
Forty-seven states already have, and Alaska, where District Attorney’s Office for the Third Judicial District v. Osborne originated, is considering an access law. Massachusetts and Oklahoma are the only states without laws on the books.
