“the law holds that it is better that ten guilty persons escape than that one innocent suffer.” – William Blackstone in Commentaries on the Laws of England
This is a cornerstone in American law. In fact, the concept of protecting the innocent goes back far further than the 1760’s and Mr. Blackstone. Benjamin Franklin is noted to have conveyed a similar thought [Letter from Benjamin Franklin to Benjamin Vaughan (Mar. 14, 1785)], as did Sir John Fortescue [De Laudibus Legum Angliae (c. 1470)], and Maimonides in the 12th Century. This thought can even be found in Genesis 18:23-32
Abraham drew near, and said, “Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it? … What if ten are found there?” He [The Lord] said, “I will not destroy it for the ten’s sake.”
In essence this principle is the reasoning behind the American Right – that a person must be found guilty, beyond a shadow of doubt, to be convicted of a crime. Except that is not what always occurs.
There are occasions, for numerous reasons, where an innocent is convicted of a crime they did not convict. In New York State, those wrongfully convicted can not only be freed but they can be paid for the anguish such wrongful imprisonment places upon them. In other situations, cases grow ‘cold’. There is evidence, but no one to link that evidence to. Sometimes there is even DNA.
Which brings us to DNA.
The introduction of DNA since the 1990’s has been an invaluable tool in proving who committed a crime, beyond shadow of doubt. It has helped to incarcerate criminals, and leave the innocent untouched. Most of the time. Because in New York State it is absolutely true that DNA can be used to lock a person in prison, but it only rarely can be used to free anyone.
“Since its inception, DNA stored in the databank has been used to identify perpetrators in about 10,000 crimes, including 900 murders and 3,500 sexual assaults. Since 2006, when the DNA databank was expanded to include 36 misdemeanors, law enforcement agencies have used the information to convict 1,460 criminals.”
This is news that will allow everyone to sleep a little better at night. Right up until the question is asked, ‘What about those that were wrongly convicted? What about those where doubt remains, and the individual was convicted anyway?’
DNA again can provide an answer. There have been 289 exonerations based on DNA in the U.S. since 1989. 222 have occured since the year 2000. Of those exonerated, 24 have been from NY State. These 24 people spent an average of 11 years in prison. In 10 of the cases there were false confessions obtained, and 14 cases where there was eyewitness misidentification. An example is Douglas Warney
…DNA testing matched that blood and other physical evidence to Eldred Johnson, who was already in prison for a similar murder. Johnson confessed to the crime, and Warney was freed [in 2006].
…Warney had AIDS-related dementia, an eighth-grade education, and an IQ of 68, according to the news reports. He claimed he was ill when he confessed. Several points in his confession were patently untrue—at one point he said he’d used his brother’s car that day, a car the brother gave up six years before the murder.”
All of which brings us back to the Blackstone Ratio, and the New York Assembly now.
On January 31, 2012 the NY State Senate passed S 5560-A Requires DNA Testing of All Persons Convicted of Certain Crimes. The law is incredibly simple. If you are convicted of a crime, your DNA goes into a State databank. If you have committed other crimes that your DNA connects you to, you can be charged with those crimes as well. Innocents are free, the guilty convicted.
It passed 49 – 10 in the NY State Senate. State Senator Tom Libous, of the NYS-52 [our State Senator] was among the votes to pass the Bill. While several Democrats in the State Senate voted for the Bill, all 10 nay votes, and both non-votes, came from Democrats alone. Governor Andrew Cuomo strongly supports the Bill.
Currently the NY State Assembly is at a standstill on this legislation (A08547A). The proposed cost of enacting this Bill is $700,000 in 2012, and $1.4 million each year thereafter.
We are left with a single question.
IF DNA has been an effective tool in convicting criminals of crimes, and can effectively be used to connect criminals to crimes that are unresolved, while at the same time providing for exoneration of those wrongfully convicted of a crime and preventing conviction of the innocent, at a cost that is (in terms of the State budget) highly affordable, why is the State Assembly stalling passage?
Actually we have another question. Why is it that the opposition to this Bill seems to fall politically? The only votes against it, or failing to vote at all, were from Democrats. The NY State Assembly is Democrat majority. Is this a political battle of wills, denying the public a means of greater security on the basis of partisan posturing.
These questions we have asked Assemblywoman Donna Lupardo, who voted yea for the June 16, 2011 Bill A05886. The June 2011 Bill’s purpose was
“The bill enacts various provisions of law to help protect against the conviction of innocent persons, and to assure that the Perpetrators of crimes are caught and convicted.”
The June 16th Bill was focused on ensuring DNA was correctly used to convict criminals. In addition it allowed for wrongful convictions to use DNA to exonerate and prevent such incarceration. We see the State Senate Bill being of the same purpose.
We will post the response of Assemblywoman Lupardo, and any other member of the NY State Assembly whom may wish to respond, VERBATIM as always.