Attorney General Stops Waiver of DNA Testing Rights in Federal Plea Deals

Dec. 4, 2010   excerpt from New York Times

The value of DNA testing to clear the unjustly convicted is well known. That did not stop the Bush administration from bullying defendants who pleaded guilty to waive their right to seek such testing. Attorney General Eric Holder made the right choice last week, ordering the Justice Department to drop this policy.

In 2004, over the vigorous objection of the Bush Justice Department, Congress passed the Innocence Protection Act, intended to ensure that inmates challenging their convictions had access to DNA testing. Language added to the measure at Republican insistence also allows defendants to waive their right to DNA testing. The Republicans argued that would cut down on frivolous requests for testing and court challenges.

The full significance of the waiver provision emerged only last year. The Washington Post reported that soon after the law passed, the Bush Justice Department sent a memo to the nation’s 94 United States attorneys directing prosecutors to insist that defendants pleading guilty as part of a plea bargain relinquish their right to DNA testing even if new evidence emerged.

This not only ignored the problem of false confessions, it cynically gutted the intent of the 2004 law.

The fact is that innocent people sometimes plead guilty because of coercive interrogations or — in the case of plea bargains — to avoid a likely conviction at trial and a far tougher sentence. Peter Neufeld, co-director of the Innocence Project, says that 19 of the 261 people exonerated so far through DNA testing had pleaded guilty to crimes they did not commit.

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