Preserve post-conviction DNA testing

I magine your son or another family member accused of a crime he did not commit. Despite his innocence, he is convicted and sentenced to prison for years or, perhaps, the rest of his life.

It is hard to imagine our justice system going so badly awry, but, tragically, it does. More than 150 people serving time in U.S. prisons have been exonerated since 1992 by DNA tests that showed they were innocent.

Since 2000, Washington state has permitted inmates to seek post-conviction DNA testing of evidence. But Washington’s law has what is known as a “sunset” provision — the law automatically expires on Dec. 31.

The law’s expiration date fails to recognize that DNA testing keeps improving and getting more sophisticated. Evidence that could not have been tested a few years ago could now yield DNA results — and possibly exonerate someone who has been wrongfully convicted.

The Legislature considered a bill in early 2004 to extend the statute, but the measure somehow got lost in the shuffle during the short session. The bill, as refined by the committee, was supported by the Innocence Project Northwest, the Office of Public Defense, the Washington State Prosecuting Attorneys and the Washington State Sheriffs and Police Chiefs. It passed the House and Senate committees with bipartisan support, but for some reason languished in the Rules Committee and never received a final vote by all members.

Because the bill did not pass during the 2004 session, people who are incarcerated must file a request for post-conviction DNA testing by the Dec. 31 deadline or they will lose the ability to do so. After that time, DNA testing may only be requested at trial or on appeal.

Furthermore, they may permanently lose access to the evidence that could prove their innocence.

As of Jan. 1, local jurisdictions will not be required to maintain biological evidence secured in connection with criminal cases that occurred prior to July 22, 2001.

I am not suggesting that there will be wholesale destruction of evidence on Jan. 1. Prosecutors and police officers also want to ensure that the right person is in prison for the crime.

But if even one innocent prisoner loses access to critical evidence or is denied post-conviction DNA testing, I believe our system will have failed.

My hope is that police and prosecutors will continue to preserve the evidence and that the Legislature will act swiftly come January to extend the right to obtain post-conviction DNA tests. In a free society, like ours, there should be no sunset on justice.

To its credit, the Washington State Patrol has made such a commitment. I commend Chief Lowell Porter for issuing a directive on Oct. 29 ordering that all biological evidence in the State Patrol’s possession be preserved until such time that a judge or prosecutor advises in writing that the evidence can be disposed of.

Across the country people are recognizing the need for post-conviction DNA testing. Just this past month, Congress passed the Justice for All Act of 2004 to provide an avenue for federal relief when a person has exhausted the available state petition process.

The legislation also includes grant funding for states that provide post-conviction DNA testing and preserve biological evidence. The bill passed the U.S. House of Representatives by a 393-14 vote on Oct. 6, and the Senate by unanimous consent on Oct. 9. President Bush has signed it into law.

It is our hope the availability of federal funding will be added incentive to move legislation extending our state’s post-conviction DNA testing law early in the session.

Few injustices compare to that of convicting an innocent person of a crime. The 2005 Legislature should eliminate the deadline on our state’s post-conviction DNA testing statute and ensure that justice is protected in Washington state.