Acknowledging Guilt: Forcing Self-Identification in Post-Conviction DNA Testing

Abstract:     
Despite the enormous media attention given to the success of Innocence Projects in exonerating wrongfully convicted defendants in criminal cases through the use of post-conviction DNA testing, it is far more common for such tests to confirm petitioners' guilt. Guilt-confirming DNA testing imposes enormous costs on the state, in terms of the financial cost of testing, prosecutors' time in vetting petitions, and victim trauma. This Article develops an economic screening model that shows that the best regulatory response is to punish prisoners who seek post-conviction DNA testing - when those tests confirm guilt - with additional incarceration. This has the effect of forcing prisoners to self identify as guilty or innocent, and of discouraging guilty prisoners from seeking petitions, while freeing up resources to help exonerate the truly innocent. We examine the limitations of alternative responses taken by state regulators. We also consider possible constitutional objections to our proposal, both in terms of cruel and unusual punishment and due process requirements. The self-screening scheme can most easily be adopted by states through use of the good time credits systems, since every state that has a post-conviction DNA testing regime also has a good time credits statutory regime, and the Supreme Court has approved punishment in the form of revocation of good time credits. The self-screening scheme proposed here has been largely adopted in Missouri, however Missouri imposes a set penalty of 60 days additional incarceration for guilt-confirming tests. Our model shows that perfect self identification will only occur when either (i) the incarceration penalty is considerably higher than Missouri's 60 day penalty; or (ii) the incarceration penalty varies by the length of sentence of the petitioner. If either of these schemes is adopted, petitions for post-conviction DNA testing by guilty prisoners can be expected to be overwhelmingly diminished, saving the state considerable resources, and removing a major obstacle to exonerating actually innocent prisoners.

Number of Pages in PDF File: 44

Keywords: DNA, screening, innocence project, post-conviction, private information, constitutional criminal, constitutional, criminal

JEL Classification: K14, K42, K00, D82

working papers series