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2012 Law & Public Policy

Post-conviction DNA access in Massachusetts

By Samantha Drake | Download as PDF.

Massachusetts – the “cradle of liberty” – has long enjoyed a reputation for progressivism.  Yet, the Commonwealth has one of the most rigid and conservative criminal justice systems in the United States.  Until recently, Massachusetts and Oklahoma were the only states in the country without legislation granting post-conviction access to DNA to those serving prison terms for serious crimes.  Despite fifteen years of persistent advocacy for a DNA access bill, plus demonstrated record of success in 48 states, Massachusetts failed to adopt such legislation.  This legislative resistance shows that the state’s reputation for progressivism is somewhat overstated.

Wrongful conviction is a fact of life.  It happens because of faulty eyewitness identification, problematic police procedure, unfair interrogation techniques, poor crime lab oversight, and false jailhouse informant testimony.  Recent evidence indicates that at least 5 percent of convicted felons are innocent and approximately 10,000 people nationally are currently in prison for crimes they did not commit.  However, such an abomination does not have to persist.  Post-conviction DNA testing has the power to free the innocent.  Since 1989 it has been responsible for the exoneration of 289 individuals, 17 of whom were on Death Row.  Advances in science and technology render DNA testing 99.999 percent accurate, making it the best determinant of guilt – or innocence. However, until recently, state law limited access to it.

The U.S. Supreme Court has said DNA testing is an issue for state action, leaving each state to decide whether to legislate post-conviction DNA access.  In states without such legislation, there is no recourse for inmates even where newly discovered evidence could prove their innocence.  Further, there is no procedure for collecting, storing, and preserving DNA evidence after trial, thus denying access to such evidence long into the future when new technology could potentially exonerate them.  Without a DNA access statute, convicts must seek judicial or prosecutorial consent for such testing, a procedure that can be arbitrary, slow, and is often refused outright.

States have adopted a variety of approaches to post-conviction DNA access legislation.  For example, Pennsylvania grants access to all defendants to test new evidence within 60 days of discovering that evidence.  California provides a more expansive right to post-conviction testing. All inmates convicted of a felony get access regardless of how much time has passed since the discovery of new evidence.  Alabama and South Dakota limit access to those claiming actual innocence.  However the approaches vary, most states have a procedure and a standard for preserving DNA evidence after trial and granting post-conviction access to it.  Until recently, Massachusetts had no such procedure and standard at all.

Massachusetts was extremely slow to adopt DNA access legislation.  DNA access bills were not introduced in the legislature until 2003, and even then, the legislature voted against the bills or allowed them to die in committee each time they were proposed.  In 2009 the influential Boston Bar Association stepped in to recommended new legislation that would provide for post-conviction access to DNA evidence.  It also recommended procedures for preservation and storage of DNA, and for requesting review of DNA evidence.  The Massachusetts legislature finally passed DNA access legislation this session, nearly three years after the BBA’s special report was completed.

There are several reasons why Massachusetts was so resistant to this important and necessary legislation.  Convicted felons are not a powerful constituency.  They are not eligible to vote.  They have no political influence.  Therefore, there is little impetus for the legislature to act on their behalf.

Many elected officials were reluctant to support DNA access legislation for fear of being labeled “soft on crime” and “anti-police.”

Opponents to DNA access legislation have exploited another fear.  They point to the financial burden of a flood of appeals.  Others have argued that post-conviction DNA testing is detrimental to the finality of a system whose integrity depends on the preservation of verdicts.

The Massachusetts legislature has been entrenched in “tough on crime” policies for generations, making even modest reforms difficult.  The delayed acceptance of post-conviction DNA access legislation is just the latest example of a criminal justice system that is not amenable to change.  Sixteen years of Republican administrations brought with it a culture of conservative administration of justice and a political agenda emphasizing stiff penalties for crime.  Despite its progressive reputation, Massachusetts has legislated to reinstitute the death penalty, ratchet up mandatory minimum sentencing, try juvenile offenders as adults, and sentence juvenile offenders to life in prison without the possibility of parole.

The testimony of Betty Anne Waters before the Senate about her effort to exonerate her wrongly convicted brother was key to the recent passage of the DNA access bill this session.  Kenny Waters served 18 years for a murder he did not commit.  At the time of his conviction, DNA technology was only sophisticated enough to demonstrate that Kenny Waters had the same blood type as the killer.  But approximately 45 percent of the population also had that blood type.  Even after Ms. Waters located the physical evidence that would clear her brother, it took a year to get permission to test it because there was no statute in place describing the standard for review.  Indeed, Ms. Waters called her discovery a “miracle” because the state had no obligation to preserve the evidence after Kenny Waters exhausted his appeals.

Massachusetts has finally joined the 48 other states to legislate post-conviction DNA access, agreeing that access to DNA testing prevents this kind of senseless injustice.

Samantha Drake is a third-year student at Suffolk University Law School with a focus on criminal law and international criminal law. She received her B.A. in Political Science from Reed College and has since worked as a research fellow for the Massachusetts Citizens Against the Death Penalty and as a legal intern for the Pennsylvania Innocence Project.


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