During the Bush administration, a policy was passed requiring some federal defendants to abandon their right to DNA testing, mainly those who plead guilty. These waivers deny the defendant DNA testing, a federal right granted to them in the Innocence Protection Act of 2004, even if new evidence emerges.

Prosecutors who use them, including some of the nation’s most prominent U.S. attorneys, say people who have admitted guilt should not be able to file frivolous petitions for testing. They say the wave of DNA exonerations has little impact in federal court because all those found to be innocent were state prisoners, and the waivers apply only to federal charges. DNA evidence is used far more frequently in state courts.

This pretty much undermines the 2004 law, since a majority of federal inmates plea guilty (97%). Prosecutors often present the waiver alongside a plea agreement, and failure to sign the waiver breaks the agreement seeking lighter prison time.

Just because state courts have a higher occurrence of post-conviction DNA testing doesn’t mean that federal inmates shouldn’t receive the same rights, especially knowing that guilt pleas can often be forced or coerced at the promise of a shorter sentence. In fact, 25% of those exonerated by DNA testing falsely confessed to a crime they didn’t commit.

Beyond just disabling them to seek post-conviction DNA testing, the waiver also allows the evidence to be destroyed in some cases making DNA testing impossible even if they were able to get past the waiver.

These are all reasons why Attorney General Eric H. Holder Jr. has ordered a review of this policy. Hopefully, as a result of this review, the waivers will be discontinued allowing anyone to test DNA evidence that may prove their innocence.

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