By Brandon L. Garrett, a professor at the University of Virginia School of Law.
The U.S. Supreme Court settled another boundary dispute about what lies inside and what lies outside of habeas corpus today in Skinner v. Switzer. Henry Skinner was convicted and sentenced to death in Texas in 1995 for the murder of his girlfriend and her two sons, whom he lived with. Skinner claimed he was home, but did not commit the murders since he was incapacitated by large amounts of codeine and alcohol. Before trial, the State tested some crime scene evidence, and some of it inculpated Skinner, but some did not. Inexplicably left untested were key pieces of evidence, including knives found at the scene, an axe handle, vaginal swabs, fingernail clippings, and hair samples.
In the meantime, in 2001 Texas passed a DNA access statute, which makes available post-conviction testing to prisoners who satisfy its criteria, including that there is a "reasonable probability" that the results could change the outcome. The Texas Court of Criminal Appeals repeatedly denied his motions seeking DNA tests on all of those other items. They blamed Skinner's trial lawyer, saying that it was a "reasonable" strategy to fail to request the DNA tests at the time of his trial, since the results might just have further inculpated Skinner. Skinner could be executed without any tests done on that crucial crime scene evidence - unless the federal courts would reverse the rulings by the Texas courts. He brought a civil rights action seeking to do just that, but the State argued federal habeas corpus was the exclusive avenue for such a claim.
These boundary issues did not come up often before. Both the habeas corpus statute, 28 USC § 2254, and the civil rights statute, 42 USC § 1983, provide avenues for litigation of constitutional violations by state actors. Prisoners often used both. However, the habeas statute has been encumbered with a raft of Supreme-Court made restrictions, together with limits added by Congress under the Antiterrorism and Effective Death Penalty Act. While the Court has limited access to remedies under Section 1983 as well, Section 1983 does not have unfair timing rules. If one suffers separate constitutional violations over time, one can bring multiple actions.
Not so under federal habeas corpus. If new evidence of constitutional violations or of innocence comes to light only years after a conviction, it may be impossible to file a federal habeas petition. Any number of rules, from the AEDPA statute of limitations, to the dreaded "successive petition" rule may rule out access to a federal court. Many of the innocent people who have been exonerated by DNA tests had to wait years to get those tests; they waited on average 15 years to be exonerated. I describe their difficult path to exoneration in a book that has just been published by Harvard University Press, Convicting the Innocent: Where Criminal Prosecutions Go Wrong. More generally, the book explores what went wrong in the first 250 DNA exonerations. Selective testing of the crime scene evidence was just one of many problems with the way that the forensics was handled and presented in the cases of those innocent people.
States have responded to the DNA revolution by, in all but two states, enacting statutes ensuring access to post-conviction DNA testing. Though DNA exonerations have become more common, state judges do still continue to arbitrarily deny DNA testing requests to prisoners who could potentially prove their innocence. Some hastily drafted state post-conviction statutes arbitrarily deny access to DNA testing to entire classes of prisoners, such as those who pleaded guilty. (The Pennsylvania Supreme Court just made clear that those who confess may obtain DNA testing, reversing a baseless interpretation of the Pennsylvania statute.)
The Supreme Court suggested in its District Attorney's Office v. Osborne opinion that a narrow procedural due process right might be available to such prisoners. In Skinner, the Court made clear that this right has a remedy when brought pursuant to a Section 1983 action. I had thought that the answer, based on the Court's prior decision in Heck v. Humphrey, was clear, and I was glad to see that the Court thought so as well.
Skinner must still show that Texas courts arbitrarily denied him access to DNA tests. He has one advantage that Osborne did not: he diligently pursued remedies in the state courts under a Texas statute which certainly reads as if it should apply to cases like his. Even if he obtains DNA tests helpful to his case, he must separately obtain relief.
Fortunately, this type of dispute will not occur too often. As the Court noted, in the Circuits that already allow these claims, there has been no "litigation flood, or even rainfall." Today, DNA testing is done routinely before a trial. In old cases, or cases where the DNA technology has changed, or where biological evidence comes to light, post-conviction testing may still play a role. But most prosecutors, as I discuss in the book, now readily and conscientiously approve DNA tests on all of the potentially probative evidence. They know that the results could free the innocent and also locate the culprit. In 112 of the first 250 DNA exonerations. the results inculpated the perpetrators, dozens of whom had committed additional crimes before DNA helped bring them to justice.
More broadly important, the Court rejected the Catch-22 view of the dissent, authored by Justice Thomas. The dissenters said they hoped to prevent Section 1983 from "intruding into the boundaries of habeas corpus." They would close access to the possibility of challenging denials of DNA testing under Section 1983 - but what they did not explain was that federal habeas corpus would be a non-option in cases where DNA testing becomes available years after a conviction. Where the Court has limited habeas corpus remedies, it has generally made clear that there should be alternative channels for vindicating constitutional rights. Unfortunately, state courts continue to carelessly handle post-conviction requests for DNA and claims of innocence. When they do, there should be at least one meaningful constitutional avenue available.