A recent article in the Washington Post (via Volokh), discusses a Bush administration policy that requires defendants to waive their rights to post-conviction DNA testing in guilty pleas.  Under the Innocence Protection Act, defendants are permitted, under certain circumstances, to request post-conviction DNA testing of evidence related to their accused crime if they assert they are actually innocent.  In some U.S. Attorney offices, however, defendants who plead guilty are required to waive these rights, ostensibly to keep them from filing frivolous motions to harass prosecutors.  The Obama administration is reviewing this policy and pondering the end of the waiver practice. 

I think that rescinding the policy would be a great idea.  However, in reviewing the actual statute, I’m not so sure that these waivers are permissible as it is.  Under the statute, defendants are permitted to ask for DNA testing so long as they have not “knowingly and voluntarily waive[d] the right to request DNA testing of that evidence in a court proceeding.”  I’m not sure waivers are “voluntary” if they are required in order to receive the benefits of a guilty plea.  Black’s Law Dictionary defines “voluntary” as “unconstrained by interference; not impelled by outside influence; without valuable consideration; gratuitous.”  It seems to me that in this situation a defendant’s waiver is certainly not without outside influence–he waives only because of the threat of trial.  Admittedly, some might argue that no defendant is required to plead guilty.  But a defendant who admits his guilt with regard to a particular crime should not be forced to enter the crapshoot that is the jury trial. 

Putting aside the wording of the statute, we need to recognize the fallibility of the guilty plea.  People (obviously) make these pleas for a number of strategic reasons unrelated to their guilt or innocence.  Discouraging post-conviction DNA testing after guilty pleas essentially concedes that (1) we have innocent people in jail; (2) we have proof that could get them out; and (3) we don’t care.  The Washington Post article quotes the acting U.S. Attorney back in my old hometown of Macon, who justifies the policy by observing that “[i]t saves [the government] a lot of spurious litigation down the pike.”  Eliminating post-conviction relief via habeas corpus would also save a lot of spurious litigation, but we recognize the important purpose it serves: every once in a while someone should legitimately be released.  Why should IPA testing be any different?

 -Michael

Update: Susan asks: “I do remember from bar study that case about the defendant claiming it was coercion when the prosecutor offered him a choice of “take this plea, or I’ll jury trial your ass for a much much worse offense.”  What’s the difference here?”

My response I would say that with your example, you’re trading your right to contest the charges in a judicial proceeding for the lower sentence. In the IPA context, you’re trading your right to actually prove your actual innocence via scientific evidence for the guilty plea to which you would otherwise have been “entitled” to.

Of course, Susan makes another good point that one “could always plead guilty anyway, you [would just] have no control over the [sentence] you get.”