Wrong on rights

In ruling that inmates have no right to sophisticated DNA evidence that could exonerate them, five conservative Supreme Court justices have taken a cruelly cramped view of the protections of the Bill of Rights. They also have vindicated President Obama’s much-ridiculed observation that empathy for the powerless is a qualification for serving on the court.

Television crime dramas notwithstanding, DNA evidence isn’t the skeleton key to unlocking the truth in every case. Nor, as O.J. Simpson’s acquittal demonstrated, are DNA results so persuasive that a jury can’t be convinced that they’re invalid or have been tampered with. Even so, developments in DNA technology have led to the release of more than 200 wrongfully convicted defendants. In the words of one eminent judge, “DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty.”

That judge was Chief Justice John G. Roberts Jr., the author of Thursday’s majority opinion rejecting the claim of William G. Osborne that he should be allowed to undergo DNA testing -- at his own expense -- to establish whether he sexually assaulted a prostitute.

After his paean to the accuracy of DNA testing, Roberts offered a litany of “buts.” Among them: The court shouldn’t establish a right to DNA testing because 46 states and the federal government already have enacted legislation providing such access. Osborne might still be able to receive a test under the laws of Alaska, where he was convicted, even though state law doesn’t explicitly say so. And Alaska’s refusal to accommodate Osborne didn’t offend “some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

Most of these arguments were refuted by Justice John Paul Stevens’ dissenting opinion. Stevens was especially persuasive in arguing that, given the importance of DNA evidence, “the state’s failure to provide Osborne access to the evidence constitutes arbitrary action that offends basic principles of due process.” Ideally, recalcitrant states like Alaska will act on Stevens’ insight that access to DNA testing is part of the right to “liberty” guaranteed by the 14th Amendment. If not, Congress should act -- perhaps by offering federal law enforcement assistance to states that reform their procedures.


The majority opinion is objectionable not just because of its conclusion but because it’s an object lesson in the sort of jurisprudence that, for all its command of legal technicalities, is impervious to the fundamental humane purposes of the Bill of Rights. Roberts and Stevens disagree about how to read the court’s precedents, but a more basic difference between the majority and the minority is insensitivity to the poignant predicament of an imprisoned man denied an opportunity to clear himself.