INTRODUCTION
On September 18, 1988, a seventeen-year-old New Jersey girl was raped on her walk home from work at the local McDonald’s.1 Three days later, the victim saw twenty-two-year-old Dion Harrell at the same McDonald’s and was confident that she had spotted her attacker.2 She promptly called the police, who arrested Mr. Harrell and charged him with sexual assault based largely on the girl’s identification.3
Over the next three-and-a-half years, Mr. Harrell adamantly maintained his innocence and repeatedly rejected plea deals.4 At his 1992 trial, he testified that on the evening of the assault he played basketball with friends—one of whom was a police detective—and rode his bicycle to a friend’s house with his three-year-old nephew.5 A number of these friends, including the detective, testified on Mr. Harrell’s behalf at trial.6 However, prosecutors put forth a forensic serologist7 expert witness who incorrectly testified that Mr. Harrell was a part of a mere two percent of the population who could have contributed the sperm found in the victim’s rape kit.8 In fact, any man on earth could have contributed it.9
Mr. Harrell was convicted of second-degree sexual assault.10 He served four years of an eight-year prison sentence,11 during which he wrote to the Innocence Project requesting assistance in securing DNA testing to prove his innocence.12 However, the Innocence Project’s waiting list prevented it from taking the case immediately.13 Despite Mr. Harrell only serving half of his original prison sentence,14 his nightmare was just beginning. Upon his release from incarceration, Mr. Harrell was required to register as a sex offender for the rest of his life.15
Dion Harrell was subjected to New Jersey’s sex offender registration act (“SORA”) from the time he was released from prison in 1997 until August 2016.16 The law barred him from living near children, which interrupted his re-entry plan of living with his sister and nephews.17 It also required the publication of his name, face, and address, details about his crime of conviction, and other identifying information on New Jersey’s publicly accessible online sex offender database.18 Because Mr. Harrell maintained his innocence and refused to register as a sex offender, he was convicted and incarcerated two more times.19 When he eventually complied with the law and registered, his status on the sex offender registry made it difficult to find work and housing and subjected him to shame and ridicule from old friends and acquaintances.20
In late 2013, the Innocence Project accepted Mr. Harrell as a client.21 Within a year, the Monmouth County Prosecutor’s Office found slides from the rape kit that could be tested for DNA to prove conclusively whether Mr. Harrell was actually the perpetrator.22 However, Mr. Harrell’s attorneys soon hit a roadblock: New Jersey’s postconviction (“PC”) DNA testing statute limited such testing to those currently in prison, even though its general PC review scheme did not.23 Prosecutors relied on the statute and opposed Mr. Harrell’s request for DNA testing, declaring: “The State believes the conviction is entitled to finality.”24
The Innocence Project continued to seek testing for Mr. Harrell. Over the next few years, they received varying degrees of support from prosecutors despite the incarceration requirement.25 His case led to a policy campaign that resulted in the amendment of the New Jersey statute to remove the incarceration requirement.26 Despite being released at the age of twenty-eight, it was not until New Jersey changed its law—by which point Mr. Harrell had turned fifty—that he was granted DNA testing, excluded as the donor of the sperm from the rape kit, and ultimately exonerated.27
To provide paths to PC DNA testing and control the scope of that testing, all fifty states, the District of Columbia, and the federal government have enacted PC DNA testing statutes.28 Each jurisdiction has a different set of requirements that petitioners must meet.29 This Note focuses on the custody requirement and its restrictive progeny, the incarceration requirement.
Part I describes the history of custody and incarceration requirements in PC DNA testing statutes, as well as the interaction between those requirements and state sex offender registration acts. Part II analyzes a number of custody and incarceration requirements across various states. Part III proposes the elimination of custody requirements from PC DNA testing statutes and rebuts concerns about removing these requirements. Ultimately, this Note argues that custody and incarceration requirements specifically harm those who have been wrongly convicted of sex offenses, and the requirements’ fundamental incongruity with the goals of PC DNA testing support their complete elimination from PC DNA testing regimes.
I. BACKGROUND
A. Postconviction DNA Testing Statutes: Form and Function
The first United States exoneration based on DNA30 testing occurred in 1989.31 Since then, a total of 362 innocent individuals have been exonerated by DNA testing.32 In 158 of those instances, DNA testing has also identified the actual perpetrators.33 In 2009, the United States Supreme Court proclaimed, “DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices.”34
PC DNA exoneration claims were initially brought under the common law. New York passed the first PC DNA testing statute in 1994.35 In the decades since, the other forty-nine states, the District of Columbia, and the federal government have all passed PC DNA testing statutes.36 These statutes grant convicted defendants who have met certain conditions the right to test pertinent physical evidence from their underlying case in order to develop DNA evidence that may prove innocence to an unparalleled degree of accuracy.37
1. Limiting Conditions
State PC DNA testing statutes have conditions that restrict testing to subsets of convicted defendants by specific criteria.38 Some of these criteria are related to the substance of the claim39—that the petitioner was wrongfully convicted and can prove so via DNA testing—while other criteria are procedural bars that address state concerns about the finality of convictions and the costs of continued litigation.40 Each statute has some mixture of criteria chosen from the set of commonly employed provisions, with each criterion adjusted to be more or less restrictive.41
There are two general categories of substantive requirements for PC DNA testing: the petitioner must show that (1) the perpetrator’s identity is at issue,42 and (2) results from DNA testing may have changed the outcome at trial.43 States impose different legal standards for both of these requirements. As to the first, states require identity to have been at issue at different points in the case.44 As to the second, states require different levels of certainty that the outcome would have been different, as well as how much more favorable the outcome would likely have been.45
In contrast, because they are not acutely related to the merits of innocence or guilt, procedural limits on PC DNA testing vary significantly from state to state.46 For instance, many states restrict the types of convictions that one may challenge by PC DNA testing.47 These “conviction restrictions” range from “[a]n individual convicted of a capital offense” in Alabama,48 to a person convicted of one of twenty-four listed offenses in South Carolina,49 to “[a] person convicted of a felony” in West Virginia,50 to absolutely no restriction in New York.51 The rest of the states (as well as the District of Columbia and the federal government) fall somewhere on this spectrum, with more states closer to New York than Alabama.52
Similar to the “crime of conviction” condition, other conditions imposed on applicants for PC DNA testing can be more or less restrictive, depending on how a state chooses its narrowing criteria. Some of these other conditions include: (1) the defendant was convicted at trial (rather than via guilty plea);53 (2) the defendant moved for DNA testing within a certain period of time, either from their arrest, conviction, or incarceration, or from the passage of the statute itself;54 and (3) the defendant is incarcerated or subject to some form of custody.55
2. Policy Justifications for Procedural Limits
States justify procedural limits to collateral attacks on criminal convictions by invoking the finality interests typically implicated by those convictions.56 First, states are concerned about the potential financial burden of increased PC litigation.57 Second, states often cite victims’, communities’, courts’, and prosecutors’ interests in “finality,” which are disrupted by allowing convicted individuals to challenge their convictions beyond direct appeal.58
State concerns about costs can further be divided into two categories. First, states fear that if they expand access to PC DNA testing, everyone who was ever convicted of a crime will move for testing.59 This “opening of the floodgates” will ostensibly clog up the courts at considerable taxpayer expense.60 Second, state legislators likely fear that as expanded access to PC DNA testing leads to more exonerations, it will also bring about the compensation of more exonerees—at considerable cost to their constituents.61
Unstated concerns about runaway compensation costs62 raise more significant questions than the oft-stated concerns about the allocation of scarce judicial resources.63 Legislatively enacted compensation standards among jurisdictions vary wildly,64 from as high as $80,000 per year of incarceration and a monthly annuity in Texas,65 to as low as $50 per day of PC confinement in Missouri,66 or a maximum aggregate of $20,000 in New Hampshire.67
Exonerees may also seek compensation via federal civil rights or common law tort suits.68 However, high bars to recovery are sometimes built into state compensation schemes to protect states from steep jury verdicts.69 Municipalities that remain concerned about large verdicts70 and the negative publicity attendant with stories of official misconduct71 often settle wrongful conviction suits for millions, if not tens of millions, of dollars.72
3. Custody and Incarceration Requirements’ Origins in Habeas Corpus
In addition to limiting PC DNA testing to certain kinds of cases, a number of states also have limited it to defendants who are still “in custody.”73 This is likely because PC DNA testing is a form of PC review,74 which generally derives from or mirrors the writ of habeas corpus.75 While PC review varies significantly from state to state,76 state PC review statutes often borrow features of federal habeas.77 In particular, the “in custody” requirement that originated in federal habeas doctrine78 has been incorporated into about half of the states’ PC relief statutory schemes79 and into many of the states’ PC DNA testing statutes.80
Courts historically read the federal writ’s custody requirement strictly.81 However, beginning in the early 1960s, the Warren Court82 relaxed the meaning of “custody” in the habeas context.83 The Court has read the requirement leniently ever since.84 Today, the habeas custody requirement entails only that a person files their habeas corpus petition in federal court while85 under government-imposed restraints not shared by the general public.86
Despite this broad construction, until recently no federal court of appeals had found that a SORA satisfied the federal habeas custody requirement.87 That changed in Piasecki v. Court of Common Pleas,88 in which the Third Circuit found Pennsylvania’s SORA registration and reporting requirements “sufficiently restrictive to constitute custody.”89 The Ninth Circuit had previously noted that a SORA with strict enough limits on a registrant’s ability to move about freely could be severe enough to satisfy the requirement.90 While Piasecki was decided on the restrictiveness of registration and reporting requirements,91 SORA geographic restrictions—which typically restrict where registrants may live, work, and “loiter”—also bear a striking resemblance to state-imposed restraints on liberty not shared by the general public.92
B. The Interaction Between Postconviction DNA Testing Statutes’ Custody Requirements and Sex Offender Registration Acts
As unnerving and confusing as it may be for people to contemplate the reopening of sex offender cases, the fact remains that sexual offenses are paradigmatic cases for DNA testing because perpetrators are prone to leave behind a variety of biological evidence.93 Ninety-one percent of the 325 DNA exonerations that had taken place in the United States by the end of 2014 were for crimes containing a sexual assault element, while 34% were for homicides.94 Additionally, far more people are convicted of sexual assault than non-negligent homicide each year.95 Moreover, sexual assault convictions typically result in much shorter prison sentences than those for non-negligent homicide.96 Thus, in states with PC DNA testing incarceration requirements, a significant slice of the population for whom PC DNA testing may prove innocence are ineligible to petition for potentially exonerative testing for reasons unrelated to the merits of their claims of innocence—namely, because they have already been released from prison.97
Modern sex offender registries were statutorily enacted at the federal and state levels beginning in the early 1990s. Since then, they have generally become more onerous.98 In 2006, the federal Sex Offender Registration and Notification Act99 (SORNA) predicated some federal funding on states’ bringing their sex offender registries into compliance with baseline requirements.100 Still, state SORAs vary from state to state,101 and most states are not in substantial compliance with SORNA.102 Nonetheless, some states have implemented restrictions on convicted sex offenders that not only go above and beyond those proscribed by SORNA, but also have gone so far as to have been held unconstitutional.103
A good example is Michigan’s SORA, which was recently held to be an unconstitutional ex post facto punishment.104 This finding, and likely the Supreme Court’s subsequent denial of certiorari, was primarily due to aspects of Michigan’s SORA that go above and beyond the SORNA requirements.105 For instance, Michigan’s SORA’s three-tier system imposes an unappealable and publicly-accessible tier determination on registrants that is supposed to relate to “the state’s estimation of present dangerousness.”106 However, this “estimation” does not actually correlate to “present dangerousness;” rather, it is based only on the offense for which the individual is required to register.107 Thus, no matter how long a Michigan defendant convicted of a Tier III offense maintains a clean record post-incarceration, they will forever remain subject to state supervision solely due to the crime for which they were convicted.108 As noted in Does v. Snyder, this rigid tier system resembles shaming and is functionally punitive.109
Further, Michigan and many other states’ SORAs contain restrictions on where registrants may live and work.110 These restrictions often result in near-complete societal exclusion, particularly in densely populated cities and suburbs.111 Under such regimes, registrants must structure their lives around state-imposed geographic restrictions and are limited to few jobs and residences.112 These restraints on liberty are similar to incarceration, where inmates are assigned living quarters and work duties by the government.113 They are also similar in that both prison sentences and sex offender registration are direct consequences of convictions.114 And just as perceived insubordination in prison often results in further punishment,115 failing to comply with a SORA is often a felony that may result in reincarceration.116
Dion Harrell’s tale of living in limbo while being subject to sex offender registration requirements for almost two decades is not an isolated incident.117 Eddie James Lowery was wrongfully convicted of a rape in 1982 and released on parole in 1991.118 However, in order to receive parole, he falsely confessed to the crime.119 Further, he enrolled in a sex offender treatment program as a mandatory condition of his release.120 “It was almost like I was still in a prison on the outside,” said Mr. Lowery.121 “Even though I was out, I wasn’t free.”122 He eventually became frustrated with registering as a sex offender annually—a requirement of SORA—and was able to pay for DNA testing on the biological evidence from his case.123 Twenty-one years after his arrest, Eddie James Lowery was vindicated by DNA testing that proved he could not have committed the rape for which he was convicted.124
Individuals who are wrongfully convicted of sex offenses and subsequently released from prison, pre-exoneration,125 into states with incarceration requirements in their PC DNA testing statutes face bleak prospects for exoneration.126 While they may be out of prison, they are often still subject to state and federal SORAs.127 These laws regulate the behavior of convicted sex offenders in a variety of ways.128 Violation of these regulations put convicted sex offenders at risk of further convictions and re-incarceration, creating a sense of constantly being in custody.129 Despite the significant degree of control these laws exert over convicted individuals’ lives,130 remaining subject to them post-release often does not fulfill PC DNA testing statutes’ custody incarceration requirements,131 just as federal courts have mostly found them insufficiently restrictive to satisfy the habeas custody requirement.132
II. ANALYSIS: CUSTODY AND INCARCERATION REQUIREMENTS IN STATE POSTCONVICTION DNA TESTING STATUTES
Unlike the federal habeas statutes133 and about half of the states’ generalized PC relief statutes,134 most states’ PC DNA testing statutes do not have a custody incarceration requirement.135 The rationale behind this distinction is simple: because DNA testing has proven itself as a uniquely useful tool for discovering truths previously unknowable in our criminal justice system,136 the availability of PC DNA testing should depend on the potential for exoneration rather than on conditions unrelated to actual innocence.137 However, a number of states have maintained custody or incarceration requirements in their PC DNA testing statutes.138 These states’ statutes can be divided into three rough categories: (1) those that strictly require that the petitioner is incarcerated139 or “serving a term of imprisonment,”140 (2) those that afford judges discretion to determine whether a person is in custody,141 and (3) those that either include or exclude parole and probation as sufficient to fulfill an incarceration requirement.142 While the aforementioned categorization imparts a basic understanding of how different states’ incarceration and custody requirements work, it glosses over the policy problems that belie the inclusion of these requirements in PC DNA testing statutes,143 as well as the considerable distinctions between the specifics of various states’ custody and incarceration requirements.144
PC DNA testing statutes vary quite considerably in how they articulate custody or incarceration requirements.145 While some custody or incarceration requirements expressly define their scope within their states’ respective PC DNA testing (or general PC relief) statutory schemes,146 others borrow language directly from one of the federal habeas statutes,147 despite the distinction between the policies underlying federal habeas and state or local PC DNA testing.148 Some state PC DNA testing statutes simply express their custody requirement with one of three words—imprisonment, incarceration, or custody—without any explanation or definition of these terms.149
A. Washington: The Ambiguity of “Imprisonment”
In State v. Slattum,150 the Washington Court of Appeals grappled with the ambiguity of an undefined term in the Washington PC DNA testing statute’s incarceration requirement.151 The court found that the word “imprisonment” in Washington’s PC DNA testing statute152 was ambiguous because, among other reasons, it was not defined in the relevant statutory scheme,153 dictionary definitions were not helpful,154 and the parties offered competing authority, legislative history, and plain meaning arguments.155 It consequently applied the rule of lenity156 and construed the phrase “term of imprisonment” in the statute favorably for the petitioner, as including the community custody portion of the defendant’s sentence.157 The court also emphasized that the procedural purpose of the “imprisonment” requirement was dwarfed by the “onerous” substantive criteria the statute requires one to meet in order to receive relief.158
B. D.C. and New Hampshire: Echoes of Habeas
Both the District of Columbia and New Hampshire’s PC DNA testing statutes require petitioners for testing to be “in custody pursuant to the judgment of” a court.159 However, neither of these states’ courts have ruled on exactly what this phrase means.160 The phrase itself comes from the federal habeas statute for individuals convicted of crimes by state courts,161 and echoes that statute’s “in custody” requirement.162 To that end, it would be prudent to presume that these two custody requirements should be read similarly to the federal custody requirement. There is, however, little precedent supporting or contradicting this proposition.163
C. Massachusetts and Kentucky: Contrasting Broad Custody Requirements
Among the states that still have incarceration requirements, Massachusetts and Kentucky stand out in their broadening of the requirement to anything remotely resembling “custody,” even more so than the modern reading of the custody requirement in the federal habeas statutes.164 Despite its arguably progressive reputation, Massachusetts was the second-to-last state to enact a PC DNA testing statute.165 This allowed Massachusetts to survey the landscape and tailor its statute more carefully. To this end, Massachusetts’s PC DNA testing statute requires that a petitioner “is incarcerated in a state prison, house of correction, is on parole or probation or [has had their] liberty . . . otherwise restrained as the result of a conviction.”166 While this is not a complete rebuke of the custody requirement, it seems to broaden it short of abandonment.167
In 2013, Kentucky amended its PC DNA testing statute to similarly broaden its custody requirement.168 While this amendment also rid the statute of its previous “death sentences only” requirement, it was replaced with a “crime of conviction” requirement, which still restricts testing to individuals convicted of violent crimes.169 Thus, despite similarly broad custody requirements in Massachusetts and Kentucky’s respective PC DNA testing statutes, there is a stark distinction between the degree of access to justice that the statutes each provide.170 This distinction illustrates that while incarceration requirement reform is a crucial element of reforming state PC DNA statutes, it is not a panacea. Each PC DNA statute must be viewed as a whole in order to determine its ultimate effect on access to justice in the Innocence Era.171
D. Mississippi, Utah, and Michigan: Idiosyncratic Incarceration and Custody Requirements
Some states have intertwined incarceration requirements with other limitations on PC DNA testing.172 Each of these permutations attempt to balance competing concerns in the PC DNA testing arena, namely cost, finality, and justice.173 Thus, they offer insight into the common aims behind the various procedural limitations states place on PC DNA testing.174
Mississippi’s PC relief statute provides the state’s only avenue for PC DNA testing.175 While the Mississippi statute grants individuals who are out on parole or probation, or registered as sex offenders a right to file a motion for DNA testing, that right expires, or “sunsets,” for those who remain subject to sex offender registration after five years.176 This sunset provision bars people from receiving DNA testing solely because they did not file for testing quickly enough.177 A significant part of the problem stems from Mississippi’s decision to codify its state-granted right to PC DNA testing in the same set of statutes that grant general PC relief.178 If the state had codified the right to PC DNA testing separately from the general right to PC relief, it could have more easily created a broader right to the former than the latter.179 However, by not doing so, it has limited the ability of Mississippians wrongly subjected to sex offender registration to attack their convictions with the full force of DNA testing, highlighting the problems with both incarceration requirements and sunset provisions.180
While Utah does not require a person to be incarcerated to petition for PC DNA testing, it does require that they are both indigent and “imprison[ed]” for the state to pay for testing.181 While this unique hybrid restriction may not seem particularly onerous at first, it may harm wrongly convicted individuals who have been released from prison, are subject to sex offender registration, and have been unable to have their case accepted by an innocence organization.182 This is because registrants are likely to be unable to pay for testing on their own, as they often have difficulty finding work and supporting themselves given the many restrictions imposed on them by registration laws.183
Michigan’s PC DNA testing statute had both a filing deadline and a conviction deadline until its most recent amendment.184 While this amendment removed the statute’s filing deadline, it had no effect on the statute’s conviction deadline of January 8, 2001.185 The conviction deadline186 complicates the statute’s applicability by differentiating eligibility requirements for those convicted before the date of Michigan’s first PC DNA testing statute’s enactment and those convicted on or after that date.187 It does this by conditioning testing for those convicted prior to the law’s initial enactment date on an incarceration requirement, while simultaneously restricting testing for individuals convicted on or after that date to those individuals who have already had inconclusive DNA testing and for whom “testing with current DNA technology is likely to result in conclusive results.”188 If that seems confusing, don’t worry—it is.
E. Pennsylvania: A Recipe for Reform
Pennsylvania’s PC DNA testing statute is embedded in its overall statutory PC relief scheme.189 While that scheme generally allows those “currently serving a sentence of imprisonment, probation or parole for the crime” to petition the court for relief,190 the PC DNA testing statute had—until recently—a narrower incarceration requirement, under which only those “serving a term of imprisonment or awaiting execution because of a sentence of death” may petition the court for testing.191
At the end of 2018, however, Pennsylvania passed a series of criminal justice reform bills, one of which vastly expanded access to PC DNA testing.192 Among other changes, Act 147 of 2018 completely removed the Pennsylvania PC DNA testing statute’s custody requirement.193 These reforms brought Pennsylvania in line with most other states by ratcheting down the procedural restrictions placed on people seeking to use uniquely powerful DNA evidence to prove their innocence.194
III. PROPOSAL: REMOVE CUSTODY AND INCARCERATION REQUIREMENTS FROM POSTCONVICTION DNA TESTING STATUTES
Because the role of custody and incarceration requirements is directly at odds with the aim of PC DNA testing, those requirements should be completely removed from all PC DNA testing statutes. While the limited, process-based aim of federal habeas may be best served by procedural bars like the jurisdictional “in custody” requirement,195 the factual error-correction aim of PC DNA testing should not be limited by procedural bars unrelated to the merits of innocence. In fact, the significant substantive requirements one must fulfill in order to be granted PC DNA testing already serve those purposes.196 In order to best fulfill the criminal justice reform goals underlying the compensation of the wrongfully convicted, we must identify more wrongfully convicted people to compensate. We can only do this by removing procedural bars to PC DNA testing that are unrelated to the merits of innocence—like all custody requirements—and subsequently exonerating more wrongfully convicted people.
The custody requirements in PC DNA testing statutes are often justified with the same reasons as all procedural limits on access to PC DNA testing.197 These can be boiled down to cost and finality, and primarily derive from the debate over state prisoners’ access to federal habeas.198 Comparing the aims of state PC DNA testing statutes with federal habeas provides a framework to both discern whether the same concerns are actually implicated in both contexts and, if they are, whether the incarceration requirement addresses those concerns.199
A. The Incongruity of Custody and Incarceration Requirements in PC DNA Testing Statutes: Process Versus Proof
The non-fiscal aims of finality of criminal judgments include reinforcing criminal law’s deterrent and educational functions, granting victims closure, incentivizing defense attorneys to put on the best defenses possible at trial, and ensuring that credible PC petitioners’ claims are not drowned out by a flood of relatively frivolous claims.200 These reasons for finality all stem from the notion that once a criminal defendant has had a trial court decide the questions of fact and law surrounding her alleged conduct, and then had the opportunity to appeal those findings all the way up to the United States Supreme Court, she has exhausted all of the direct remedies that our judicial system typically affords.201
The emphasis on the finality of criminal convictions developed alongside the process-based approach to post-trial jurisprudence, and the two “acutely linked” doctrines have been primary influences on the narrowing of access to federal habeas relief from the 1970s through today.202 After states adopted the process approach,203 the PC DNA testing revolution occurred, leading to the widespread passage of DNA testing statutes.204 However, these DNA testing statutes often maintained many of the process-based features of the federal habeas-inspired general state PC review statutes that preceded them, including the “in custody” requirement, which was codified by many states as an incarceration requirement.205
Dion Harrell’s case embodies the problem with maintaining process-related bars on review in PC DNA testing statutes designed to spot and remedy wrongful convictions.206 While discussing Mr. Harrell’s case in the context of amending the incarceration requirement out of New Jersey’s PC DNA testing statute, New Jersey State Assemblyman Declan O’Scanlon decried the law as “an awful contradiction,” the amendment of which “would increase the certainty of our justice system—freeing the innocent and increasing the likelihood that the truly guilty will be prosecuted.”207
Despite this distinction, some proponents of limiting PC DNA testing statutes with procedural bars unrelated to innocence still cite traditional finality concerns.208 However, in the context of using DNA testing to review the factual accuracy of convictions, many of these concerns are inapplicable.209 For instance, the deterrence, rehabilitation, and education functions of the criminal justice system, as well as true closure for victims, require the conviction of actual perpetrators.210 Thus, putting stock in the finality of criminal judgments where DNA testing could completely exonerate the convicted defendant undermines these aims by allowing actual perpetrators to run free and possibly commit more crimes while innocent people remain behind bars.211
States that have maintained procedural bars to PC DNA testing, such as custody requirements, have not taken these arguments into account.212 Thus, a counterintuitive hesitance to broaden the scope of PC DNA testing is likely one explanation as to why, despite Michigan’s recent abandonment of the filing deadline in its PC DNA testing statute, there has never been a successful challenge to the law’s conviction deadline and incarceration requirements.213 The 2015 Michigan Senate Fiscal Analysis of the most recent amendment to the state’s PC DNA testing law explicitly notes the state’s primary goals in removing the filing deadline: providing the wrongfully convicted “meaningful access to DNA testing” and identifying and prosecuting actual perpetrators.214 However, the Analysis does not address the conviction deadline and accompanying incarceration requirement. Those two limitations bar claims that may otherwise be meritorious on the substantive question of whether DNA testing could prove innocence, contradicting the underlying values that were explicitly stated as the motivation for removing the filing requirement.215
B. The Fiscal Costs of Removing Incarceration Requirements: Critical to Criminal Justice Reform and Likely Less than Expected
PC DNA testing statutes are enacted to spur criminal justice reform.216 While legislators typically express concern about the administrative, judicial, and prosecutorial costs associated with expanding access to PC DNA testing, those costs are vastly overstated. Where there are increased costs—be they associated with administering PC DNA testing statutes or compensating more exonerees—those costs incentivize criminal justice reform among all the relevant actors in the system: police, prosecutors, courts, and even potential criminals.217 This, in turn, saves the municipality money by preventing more, future wrongful convictions and subsequent payouts. Finally, by providing for the exoneration of individuals who have been released from incarceration but remain on sex offender registries, municipalities will decrease the cost of maintaining their sex offender registration and notification systems.218
The most common cost-related concern about expanding access to PC DNA testing is that administrative, prosecutorial, and judicial costs will rise due to a flood of litigation.219 This argument is belied by decades of experience.220 State fiscal analyses demonstrate that the floodgates have not opened as states have enacted PC DNA testing statutes.221 For example, the Michigan Senate Fiscal Agency’s own 2015 legislative analysis of the most recent amendments to their PC DNA testing statute acknowledges that, after nearly fifteen years of providing statutory access to PC DNA testing, “the program of petitioning the court for PC DNA testing has proven not to be a burden on Michigan’s court system.”222 Further, not one of the first thirty-seven states without an incarceration requirement has reported a flood of DNA testing litigation.223 In the past few years, at least four more jurisdictions—Montana,224 New Jersey,225 Oregon,226 and Rhode Island227—have amended their PC DNA testing laws to allow testing for those already released from prison. As of Dion Harrell’s exoneration in summer 2016, only twenty-four people had been exonerated by post-release DNA testing nationwide, indicating a narrow subset of people for whom post-release testing would be a substantively viable option.228
By removing procedural bars to PC DNA testing and exonerating more wrongfully convicted individuals, states may actually limit judicial costs by reducing the number of petitioners who will turn to repeat time-consuming non-DNA PC review claims, such as state PC review and federal habeas.229 Additionally, DNA testing is becoming less expensive as time goes on,230 and local innocence organizations typically screen for potentially meritorious claims and pay for their clients’ testing.231 Thus, legislators should not fear a flood of costly or frivolous PC DNA testing petitions to result from removing custody requirements.232
Beyond the oft-stated concern about a flood of petitioners lies the unstated concern about the cost of compensating a broader swath of wrongfully convicted individuals.233 While compensation is often costly,234 it helps deter wrongful convictions—a critical criminal justice reform effort—by incentivizing thorough, impartial, and accurate policing, prosecuting, and adjudication.235 Further, when exonerees are compensated more than $500,000, they are less likely to commit crimes upon release,236 fulfilling the traditional deterrence aim of the criminal justice system.237
The primary comparative disadvantage of allowing PC DNA testing for individuals who are no longer incarcerated is that, unlike allowing testing for individuals who are still incarcerated, it does not provide an obvious financial incentive in the form of decreased incarceration costs.238 However, exonerating those who are wrongfully subject to sex offender registries will, by removing these individuals from the registries, save states and municipalities significant staffing costs associated with the administration of sex offender registration and notification.239 Individuals convicted of crimes with sexual elements continue to make up the vast majority of DNA exonerees240 and tend to serve shorter sentences than those convicted of non-negligent homicide.241 Thus, a significant percentage of the wrongfully convicted individuals who both have been released from prison and could viably be exonerated by DNA testing either are or have been on sex offender registries.242 A reduction in this population would significantly diminish states’ SORA-related staffing costs.243
While it is unclear whether these savings will be greater than the administrative, judicial, and prosecutorial costs of screening the cases that come in and the compensation costs of meritorious cases, the same can be said for the oft-cited savings from freeing wrongfully incarcerated prisoners.244 This is partly because compensation varies wildly from state to state and case to case.245 Further, there is no clear way to quantify the administrative, judicial, and prosecutorial costs of dealing with petitions for PC DNA testing—particularly when those petitions are often filed in lieu of successive federal habeas or general state PC petitions.246
CONCLUSION
Removing incarceration requirements from PC DNA statutes would increase access to justice while likely implicating none of the rationales often espoused for limiting the availability of PC DNA testing: state repose, victim closure, and judicial or prosecutorial costs.247 In fact, it may actually save jurisdictions money to remove exonerees from state sex offender registries, especially if the actual culprits are already in the registries for other sexual offenses.248 While expanding access to PC DNA testing to convicted individuals who have been released from prison may implicate the unspoken potential for runaway compensation costs, these concerns are outweighed by the societal imperative to compensate those who have suffered the burdens of wrongful conviction. Further, bearing these costs will advance the goals of both the criminal justice system as a whole and PC DNA testing regimes in particular.249 Finally, removing the incarceration requirement would best serve the interests of justice, as wrongfully convicted individuals should not be burdened by the collateral consequences of wrongful convictions, especially when those consequences are arguably punitive restraints on liberty.250 In order to provide access to justice for more wrongly convicted individuals, states should abolish custody and incarceration requirements from their PC DNA testing statutes.