DNA and death row

The Supreme Court this week had good news for a Texas death row inmate: He can sue a district attorney who won’t give him access to DNA evidence that might clear him. The 6-3 decision, which opens a new avenue of appeal for condemned prisoners, is welcome. But it falls short of what the court should do to make DNA evidence available to every prisoner who requests it.

Henry Skinner was convicted of murdering his girlfriend and her two sons in 1993. He says he was in an alcoholic haze during the killings and that his girlfriend’s uncle was probably the killer. At his trial, he declined to seek access to DNA evidence that might have exonerated him.

Later, Skinner changed his mind and, using a Texas law, tried to obtain DNA testing. But he was rebuffed by the courts because the state law, among other restrictions, penalized prisoners who hadn’t sought DNA evidence earlier.

The significance of this week’s decision is that prisoners can now sue under a civil rights law known as Section 1983 to press their claims instead of being limited to habeas corpus suits, a traditional avenue of appeal that Congress has made more difficult to pursue. Hurdles remain, but the court has allowed some suits designed to obtain DNA evidence.


But the court needs to go much further. As a matter of simple justice, every prisoner, not just death row inmates, ought to have access to DNA testing when it offers the potential of exoneration. So important is such evidence that the court should use an appropriate case to rule that the Constitution’s due process clauses require DNA testing, and without conditions of the sort Texas imposed.

To do so, the court will have to overcome its past timidity. In a 2009 case, it declined to establish a federal right to DNA testing, even though Chief Justice John G. Roberts Jr. wrote in the majority opinion that “DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty.” Then Roberts and his colleagues went on to say why the court shouldn’t embrace a right to DNA testing, including the fact that 44 states provided access to testing. But, as the Texas case makes clear, states also can impose unjust restrictions.

Even some conservative justices recognize that the Constitution must keep up with the times. This is one example. Access to DNA testing should be declared a basic right.