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Double-Edged Sword

07.31.2005 | POLITICS

Following the discovery in Illinois that 13 convicted prisoners on death row were in fact innocent, Republican Governor George Ryan in January 2000 instituted the nation's first moratorium on state executions. Ryan announced, "Until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate."1

Current Illinois Governor Rod Blagojevich has continued Ryan's policy, and other states, including Colorado, Texas, Maryland and California, have followed Illinois in pursuing death penalty moratoria. These appeals to suspend executions are driven by the same logic Ryan employed: the system cannot countenance the death penalty at the risk of condemning innocent people.

Until recently, most on the right have dismissed arguments that capital punishment is barbaric, inconsistently applied, disproportionately meted out to minorities and the poor, and an ineffective deterrent.2 But with the availability of new sientific tools like DNA evidence, conservative politicians are faced with the sobering reality that science can now irrefutably prove the innocence of many on death row.3 Since 1989, 159 inmates have been exonerated by post-conviction DNA evidence, more than triple the number of innocent people exonerated during the previous 15-year period -- an embarrassing statistic for longtime Republican death penalty supporters.4

But imposing a moratorium on the death penalty is not equivalent to eliminating it. In the long run, once the innocent have been cleared from death row and the "mistakes" are but a faint residue on the public memory, it's just as likely that DNA evidence will be used in defense of capital punishment. This is because DNA has just as much capacity to condemn the guilty as it has to exonerate the innocent. Robert Pambianco, Chief Policy Counsel for the Washington Legal Foundation, acknowledged this possibility: "If DNA evidence can be used to prove that the wrong man was convicted, then it can be used to remove any remaining doubt about a prisoner's guilt. Far from undermining confidence in capital punishment, DNA evidence will only help increase the certainty about the guilt of those sentenced to die."5

According to Virginia-based scientist Anthony Brooks, DNA evidence is now being used more frequently to confirm a person's guilt than it is to prove his innocence.6

At the Virginia State crime lab, Dr. Paul Ferrara says that his colleagues now yield almost two "cold hits" a day, which occurs when a suspect's profile is matched with DNA evidence from the crime scene.6

In the last year, Republican politicians have begun using these instances to question the utility of death sentence moratoria, employing the language of science to buttress the case for capital punishment. On July 21, Massachusetts Governor Mitt Romney announced plans to re-instate a "foolproof, no doubt" death penalty statute. Romney has already supported efforts to beef up State Police crime labs and broaden the application of DNA evidence in the courtroom.7 A similar defense of capital punishment is being mounted by Virginia Attorney General Jerry Kilgore, who argues that DNA evidence will provide "a better opportunity to determine if we have a serial killer, or if we have someone who has committed crimes over and over again." Whether we should take conservative politicians lie Romney and Kilgore -- who are possibly using the authority of science to buttress a priori moral beliefs -- at the their word, is a matter of debate.6

But no test is full-proof; condoms break, guns backfire, and sometimes DNA evidence is useless. Furthermore, evidence can be applied only in the relatively exceptional cases in which the police can obtain evidence suited to DNA analysis, such as blood, hair, or semen.

DNA evidence can also be wildly misapplied. Witness the debacle unfolding in Houston, where forensic psychologists are under independent audit from the Texas Department of Public Safety for manufacturing fraudulent DNA evidence to convict as many 1,300 innocent people. The investigation has already led to the exoneration of one innocent man who had spent five years in prison, whom fraudulent DNA evidence had linked to the rape of a young woman.8

According to City Councilwoman Carol Alvarado, the Harris County, TX, crime lab contained scientists whose methods were sloppy and tainted by prejudice, whose surroundings resembled an adolescent's basement dwelling after an all-night rager: "These were not just leaks; these were holes. There were trash buckets and water buckets throughout the lab. They were having to move tables around, because some of the leaks were near and sometimes above where the analysis was occurring."9

Can we really trust DNA samples deluged by dirty water and examined by fools? As Max Weber warned, prejudice and stupidity sometimes masquerade as science. And much like the phrenology experiments that endeavored to prove the intellectual inferiority of African-Americans, there is the risk that the more blindly we trust DNA evidence, the more dangerous and disingenuous its application will become.


  1. Illinois Governor Halts Executions. Moratorium News.
  2. Governor George Ryan: An Address on the Death Penalty. The Pew Forum on Religion & Public Life.
  3. Travis County Commissioners Court Passes Moratorium Resolution. Texas Moratorium Network
  4. Facts about Wrongful Convictions. Mid-Atlantic Innocence Project.
  5. The Guilty Are Being Executed. Pro-Death
  6. DNA and the Science of Truth. WBUR - Boston NPR.
  7. Massachusetts Governor's Proposed Death Penalty Law Meets Strong Opposition at Hearing. Death Penalty Information Center.
  8. UCI Professor Finds DNA Laboratory Errors That Sent Wrong Man to Prison. Scientific Testimony.
  9. Tex. Lawmakers Probe Lab Over Reports of Tainted DNA Evidence. Washington Post.

About the Author
Joe Krupnick is a frequent contributor to Flak Magazine.
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