Conservative Justices’ Strange Enthusiasm for the Punishment of the Innocent

Here’s a beaut of a decision from the increasingly brutal and inhumane conservative-dominated Supreme Court. Not content with gutting anti-discrimination legislation, a 5–4 majority has decided that if people are wrongfully convicted they should be punished anyway because, hey, tough on crime!

In 1993, William Osburne was convicted of kidnapping, assaulting and raping a woman in Anchorage, Alaska. He spent the next 14 years of his life behind bars. Osburne insists that he is innocent, the State of Alaska has in its possession DNA evidence which will once and for all prove his guilt or innocence, and Osburne has offered to pay for DNA testing out of his own pocket. Allowing Osburne to prove — or disprove–his claim of innocence will cost Alaska literally nothing.

Nevertheless, the Supreme Court held today in a 5–4 decision by Chief Justice Roberts that Osburne is out of luck. Although Roberts conceded that “[i]t is now often possible to determine whether a biological tissue matches a suspect with near certainty,” he determined that Osburne has no right to pay for a test that could exonerate him for a crime he did not commit. Allowing Osburne to prove his potential innocence, Roberts said, risks “unnecessarily overthrowing the established system of criminal justice.”

Obviously, the purpose of the established system of criminal justice is to use punishment of the guilty as a means of controlling crime. The general hostility of most people in the law enforcement and prosecutorial universe to exonerating evidence is a little bit hard to understand. The predominant thinking of Alaska in this case seems to be that the punishment of the innocent works as a close substitute for the punishment of the guilty, so that given the heinous nature of the crime the state has a strong interest in convicting someone or other of it irrespective of the facts. This is exactly the sort of madness and injustice we rely on the judicial system to rescue us from. But not the new Roberts Court!


The two cases handed down yesterday are just two new additions to the trend observed by Jeffrey Toobin, “in every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.” That’s conservative jurisprudence in a nutshell.