DNA Tests Can Be a Safety Valve for the Death Penalty

There won’t be any death penalty moratorium in California. But there will be more DNA testing to make sure innocent people aren’t executed or even imprisoned.

The next 10 days--the climactic end of the legislative session--will determine just how much more DNA testing there will be.

Senate Leader John Burton (D-San Francisco) is pushing a bill that would allow convicted felons--not just occupants of death row--to demand DNA testing if the technology or evidence wasn’t available at their trial. A judge would need to decide that the testing--of blood, hair, skin, saliva, semen--could prove an inmate’s innocence.

It’s not cheap: up to $5,000 a pop.

Prosecutors in four counties--Orange, San Diego, Ventura and San Francisco--recently decided to offer DNA testing to convicts who conceivably could be innocent.

“That’s nice,” Burton says. “But an innocent person wrongfully imprisoned shouldn’t have to depend on the kindness of a D.A. to get justice.”

Two other related bills also are pending. Unlike Burton’s, these are designed to prove a suspect’s guilt. They’re backed by Atty. Gen. Bill Lockyer.

One, by Assemblyman Michael Machado (D-Linden), is aimed at solving serial crimes. It would allow DNA samples taken from a suspect arrested for one crime to be matched against evidence found at other crime scenes. Now, the suspect first must be convicted of the offense for which he was arrested.

Another bill, by Assemblyman Lou Correa (D-Anaheim), would extend the statute of limitations for rape from six years to 10. This is important because there are an estimated 15,000 “rape kits” containing significant DNA evidence scattered around the state that haven’t been analyzed, largely because of backlogs at crime labs.

Gov. Gray Davis recently approved $50 million to expedite these rape probes, on top of $10 million to upgrade the state DNA lab at Berkeley.

The rape bill won final legislative passage Friday. But both it and the Machado measure are “double joined” to Burton’s--meaning that unless the Senate leader’s bill is signed by the governor, the other two cannot become law.

That’s one way leverage is applied in the Capitol.

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Davis has not taken a position on any of these bills. But as a tough-on-crime governor--who also doesn’t want to be accused of locking up innocent people--he’ll probably sign whatever the Legislature passes.

He and Lockyer are working on the Burton bill to make sure the DNA tests truly are pertinent--and aren’t used by death penalty opponents merely to delay executions.

Already, appeals in capital punishment cases stretch out an average of 14 years in California, compared with nine nationally.

Has California in modern times executed an innocent person? “I would think not,” the attorney general says. “We have extraordinary due process requirements, unlike any other state.”

Indeed, California has executed only eight people since capital punishment was reinstated in 1978, compared to 139 in Texas under Gov. George W. Bush alone. Three have been executed on Davis’ watch.

There now are 571 sentenced to die in California, so many that San Quentin’s death row no longer can house them all.

The cases of 381 still have not been ruled on by the state Supreme Court; 164 don’t even have defense attorneys. Davis recently approved $1 million to hire top-rate private lawyers for some condemned inmates.

“Those of us who support the death penalty,” the governor says, “have a special obligation to assure that it’s carried out fairly.”

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Davis and Lockyer oppose a death penalty moratorium in California--even if Illinois Gov. George Ryan did freeze executions because of concerns about his state’s judicial system.

“I see no reason for it,” Davis says, noting another California execution isn’t anticipated until next year.

Davis and Lockyer are Democrats, but not bleeding heart liberals. They’re politicians who also realize that nearly two-thirds of Californians still support the death penalty.

Both believe capital punishment can be a deterrent and is just. “These crimes are so horrible,” Lockyer says, “it doesn’t seem right to have the victims’ families living forever knowing the killer of their loved one is watching TV.”

Burton is a bleeding heart: “I’d like to know the name of the last rich person who was executed. A lot of people think it’s racially based, but I think it’s totally economically based.”

At least with more DNA testing, death penalty opponents will have a harder time arguing that innocent people are being executed.