Bench Memos

Supreme Court Ruling on DNA Testing—Justice Stevens’s Dissent

On the broader debate in District Attorney’s Office v. Osborne over the proper role of the Court, here’s my quick stab at providing relevant excerpts from Justice Stevens’s dissent (citations omitted):

Whether framed as a “substantive liberty interest … protected through a procedural due process right” to have evidence made available for testing, or as a substantive due process right to be free of arbitrary government action, the result is the same: On the record now before us, Osborne has established his entitlement to test the State’s evidence….

Recognition of this right draws strength from the fact that 46 States and the Federal Government have passed statutes providing access to evidence for DNA testing, and 3 additional states (including Alaska) provide similar access through court-made rules alone.…  The fact that nearly all the States have now recognized some postconviction right to DNA evidence makes it more, not less, appropriate to recognize a limited federal right to such evidence in cases where litigants are unfairly barred from obtaining relief in state court.

When government action is so lacking in justification that it “can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense,” it violates the Due Process Clause. In my view, the State’s refusal to provide Osborne with access to evidence for DNA testing qualifies as arbitrary. Throughout the course of state and federal litigation, the State has failed to provide any concrete reason for denying Osborne the DNA testing he seeks, and none is apparent.

In the same way [as with the Court’s ultimate recognition of a Sixth Amendment right to counsel for all indigent criminal defendants, a decision to recognize a limited right of postconviction access to DNA testing would not prevent the States from creating procedures by which litigants request and obtain such access; it would merely ensure that States do so in a manner that is nonarbitrary.

The majority’s position also resembles that taken by Justice Harlan in his dissent in Miranda v. Arizona, in which he faulted the Court for its “ironic untimeliness.” He noted that the Court’s decision came at time when scholars, politicians, and law enforcement officials were beginning to engage in a “massive reexamination of criminal law enforcement procedures on a scale never before witnessed,” and predicted that the practical effect of the Court’s decision would be to “handicap seriously” those sound efforts. Yet time has vindicated the decision in Miranda. [??]