DISTRICT ATTORNEY‘S OFFICE FOR THE THIRD JUDICIAL DISTRICT ET AL. v. OSBORNE
No. 08-6
Supreme Court of the United States
June 18, 2009
557 U.S. 52
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. ALITO, J., filed a concurring opinion, in which KENNEDY, J., joined, and in which THOMAS, J., joined as to Part II, post, p. 75. STEVENS, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined, and in which SOUTER, J., joined as to Part I, post, p. 87. SOUTER, J., filed a dissenting opinion, post, p. 103.
Kenneth M. Rosenstein, Assistant Attorney General of Alaska, argued the cause for petitioners. With him on the briefs were Richard A. Svobodny, Acting Attorney General, Talis J. Colberg, former Attorney General, Diane L. Wendlandt, Assistant Attorney General, Roy T. Englert, Jr., and Alan E. Untereiner.
Deputy Solicitor General Katyal argued the cause for the United States as amicus curiae urging reversal. On the brief were former Solicitor General Garre, Acting Assistant Attorney General Friedrich, former Deputy Solicitor General Joseffer, and Curtis E. Gannon.
Peter J. Neufeld argued the cause for respondent. With him on the brief were Barry C. Scheck, Nina R. Morrison, David T. Goldberg, Kannon K. Shanmugam, Anna-Rose Mathieson, Robert C. Bundy, and Randall S. Cavanaugh.*
*Briefs of amici curiae urging reversal were filed for the State of California et al. by Edmund G. Brown, Jr., Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Donald E. de Nicola, Deputy Solicitor General, Gerald A. Engler, Senior Assistant Attorney General, and Enid A. Camps and Michael Chamberlain, Deputy Attorneys General, by John D. Seidel, Senior Assistant Attorney General of Colorado, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Dustin McDaniel of Arkansas, John W. Suthers of Colorado, Joseph R. “Beau” Biden III of Delaware, Bill McCollum of Florida, Lawrence G. Wasden of Idaho, Thomas J. Miller of Iowa, Steve Six of Kansas, Jack Conway of Kentucky, James D. “Buddy” Caldwell of Louisiana, G. Steven Rowe of Maine, Douglas F. Gansler of Maryland, Martha Coakley of Massachusetts, Michael A. Cox of Michigan, Lori Swanson
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Walter Dellinger, Irving L. Gornstein, Shannon M. Pazur, Steven R. Shapiro, John W. Whitehead, and Barbara E. Bergman; for Current and Former Prosecutors by Donald B. Ayer; for Eleven Individuals Who Have Received Clemency Through DNA Testing by Jeffrey L. Fisher, Pamela S. Karlan, Lawrence C. Marshall, Amy Howe, Kevin K. Russell, and Thomas C. Goldstein; for Individuals Exonerated by Post-Conviction DNA Testing by Paul A. Engelmayer; and for Jeanette Popp et al. by Kenneth W. Starr and
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
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. The Federal Government and the States have recognized this, and have developed special approaches to ensure that this evidentiary tool can be effectively incorporated into established criminal procedure—usually but not always through legislation.
Against this prompt and considered response, the respondent, William Osborne, proposes a different approach: the rec-ognition of a freestanding and far-reaching constitutional right of access to this new type of evidence. The nature of what he seeks is confirmed by his decision to file this lawsuit in federal court under
I
A
This lawsuit arose out of a violent crime committed 16 years ago, which has resulted in a long string of litigation in the state and federal courts. On the evening of
K. G. did not die; the bullet had only grazed her head. Once the two men left, she found her way back to the road, and flagged down a passing car to take her home. Ultimately, she received medical care and spoke to the police. At the scene of the crime, the police recovered a spent shell casing, the axe handle, some of K. G.‘s clothing stained with blood, and the blue condom. Jackson v. State, No. A–5276 etc. (Alaska App., Feb. 7, 1996), App. to Pet. for Cert. 117a.
Six days later, two military police officers at Fort Richardson pulled over Dexter Jackson for flashing his headlights at another vehicle. In his car they discovered a gun (which matched the shell casing), as well as several items K. G. had been carrying the night of the attack. Id., at 116a, 118a–119a. The car also matched the description K. G. had given to the police. Jackson admitted that he had been the driver during the rape and assault, and told the police that William Osborne had been his passenger. 521 F. 3d, at 1122–1123; 423 F. 3d 1050, 1051–1052 (CA9 2005); Osborne v. State, 110 P. 3d 986, 990 (Alaska App. 2005) (Osborne I). Other evidence also implicated Osborne. K. G. picked out his photograph (with some uncertainty) and at trial she identified Osborne as her attacker. Other witnesses testified that shortly before the crime, Osborne had called Jackson from an arcade, and then driven off with him. An axe handle similar to the one at the scene of the crime was found in Osborne‘s room on the military base where he lived.
The State also performed DQ Alpha testing on sperm found in the blue condom. DQ Alpha testing is a relatively inexact form of DNA testing that can clear some wrongly accused individuals, but generally cannot narrow the perpetrator down to less than 5% of the population. See Dept. of Justice, National Comm‘n on the Future of DNA Evidence, The Future of Forensic DNA Testing 17 (NCJ 183697, 2000) (hereinafter Future of Forensic DNA Testing); Dept. of Justice, National Comm‘n on the Future of DNA Evidence, Postconviction DNA Testing: Recommendations for Handling Requests 27 (NCJ 177626, 1999) (hereinafter Postconviction DNA Testing). The semen found on the condom had a geno-type that matched a blood sample taken from Osborne, but not ones from Jackson, K. G., or a third suspect named James Hunter. Osborne is black, and approximately 16% of black individuals have such a genotype. App. 117–119. In other words, the testing ruled out Jackson and Hunter as possible sources of the semen, and also ruled out over 80% of other black individuals. The State also examined some pubic hairs found at the scene of the crime, which were not susceptible to DQ Alpha testing, but which state
B
Osborne and Jackson were convicted by an Alaska jury of kidnaping, assault, and sexual assault. They were acquitted of an additional count of sexual assault and of attempted murder. Finding it “nearly miraculous” that K. G. had survived, the trial judge sentenced Osborne to 26 years in prison, with 5 suspended. Id., at 128a. His conviction and sentence were affirmed on appeal. Id., at 113a–130a.
Osborne then sought postconviction relief in Alaska state court. He claimed that he had asked his attorney, Sidney Billingslea, to seek more discriminating restriction-fragment-length-polymorphism (RFLP) DNA testing during trial, and argued that she was constitutionally ineffective for not doing so.1 Billingslea testified that after investigation, she had concluded that further testing would do more harm than good. She planned to mount a defense of mistaken identity, and thought that the imprecision of the DQ Alpha test gave her “very good numbers in a mistaken identity, cross-racial identification case, where the victim was in the
dark and had bad eyesight.” Osborne I, 110 P. 3d, at 990. Because she believed Osborne was guilty, “insisting on a more advanced... DNA test would have served to prove that Osborne committed the alleged crimes.” Ibid. The Alaska Court of Appeals concluded that Billingslea‘s decision had been strategic and rejected Osborne‘s claim. Id., at 991–992.
In this proceeding, Osborne also sought the DNA testing that Billingslea had failed to perform, relying on an Alaska postconviction statute,
The court relied heavily on the fact that Osborne had confessed to some of his crimes in a 2004 application for parole—in which it is a crime to lie. Id., at 978–979, 981 (majority opinion) (citing
snow. 163 P. 3d, at 977–978, n. 11. He repeated this confession before the parole board. Despite this acceptance of responsibility, the board did not grant him discretionary parole. App. to Pet. for Cert. 8a. In 2007, he was released on mandatory parole, but he has since been rearrested for another offense, and the State has petitioned to revoke this parole. Brief for Petitioners 7, n. 3.
Meanwhile, Osborne had also been active in federal court, suing state officials under
On cross-motions for summary judgment after remand, the District Court concluded that “there does exist, under the unique and specific facts presented, a very limited constitutional right to the testing sought.” 445 F. Supp. 2d 1079,
1081 (2006) (some emphasis deleted). The court relied on several factors: that the testing Osborne sought had been unavailable at trial, that the testing could be accomplished at almost no cost to the State, and that the results were likely to be material. Id., at 1081–1082. It therefore granted summary judgment in favor of Osborne.
The Court of Appeals affirmed, relying on the prosecutorial duty to disclose exculpatory evidence recognized in Pennsylvania v. Ritchie, 480 U. S. 39 (1987), and Brady v. Maryland, 373 U. S. 83 (1963). While acknowledging that our precedents “involved only the right to pre-trial disclosure,” the court concluded that the Due Process Clause also “extends the government‘s duty to disclose (or the defendant‘s right of access) to post-conviction proceedings.” 521 F. 3d, at 1128. Although Osborne‘s trial and appeals were over, the court noted that he had a “potentially viable” state constitutional claim of “actual innocence,” id., at 1130, and relied on the “well-established assumption” that a similar claim arose under the Federal Constitution, id., at 1131; cf. Herrera v. Collins, 506 U. S. 390 (1993). The court held that these potential claims extended some of the State‘s Brady obligations to the postconviction context.
The court declined to decide the details of what showing must be made to access the evidence because it found “Osborne‘s case for disclosure... so strong on the facts” that “[w]herever the bar is, he
We granted certiorari to decide whether Osborne‘s claims could be pursued using
II
Modern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty. While of course many criminal trials proceed without any forensic and scientific testing at all, there is no technology comparable to DNA testing for matching tissues when such evidence is at issue. Postconviction DNA Testing 1–2; Future of Forensic DNA Testing 13–14. DNA testing has exonerated wrongly convicted people, and has confirmed the convictions of many others.
At the same time, DNA testing alone does not always resolve a case. Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent. See House v. Bell, 547 U. S. 518, 540–548 (2006). The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The dilemma is how to harness DNA‘s power to prove innocence without unnecessarily overthrowing the established system of criminal justice.
That task belongs primarily to the legislature. “[T]he States are currently engaged in serious, thoughtful examinations,” Washington v. Glucksberg, 521 U. S. 702, 719 (1997), of how to ensure the fair and effective use of this testing within the existing criminal justice framework. Forty-six States have already enacted statutes dealing specifically with access to DNA evidence. See generally Brief for State of California et al. as Amici Curiae 3–13; Garrett, Claiming Innocence, 92 Minn. L. Rev. 1629, 1719 (2008) (surveying state statutes); see also An Act to Improve the Preservation and Accessibility of Biological Evidence, Mississippi S. 2709 (enacted March 16, 2009); An Act to Provide for DNA Testing for Certain Inmates for the Purposes of Determining Whether They May Have Been Wrongfully Convicted, South Dakota H. R. 1166 (enacted March 11, 2009). The State of Alaska itself is considering joining them. See An Act Relating to Post-conviction DNA Testing, H. 174, 26th Leg., 1st Sess. (2009) (proposed legislation similar to that enacted by the States). The Federal Government has also passed the Innocence Protection Act of 2004,
These laws recognize the value of DNA evidence but also the need for certain conditions on access to the State‘s evidence. A requirement of demonstrating materiality is common, e. g.,
Alaska is one of a handful of States yet to enact legislation specifically addressing the issue of evidence requested for DNA testing. But that does not mean that such evidence is unavailable for those seeking to prove their innocence. Instead, Alaska courts are addressing how to apply existing laws for discovery and postconviction relief to this novel technology. See Osborne I, 110 P. 3d, at 992–993; Patterson v. State, No. A–8814, 2006 WL 573797, *4 (Alaska App., Mar. 8, 2006). The same is true with respect to other States that do not have DNA-specific statutes. E. g., Fagan v. State, 957 So. 2d 1159 (Ala. Crim. App. 2007). Cf. Mass. Rule Crim. Proc. 30(c)(4) (2009).
First, access to evidence is available under Alaska law for those who seek to subject it to newly available DNA testing that will prove them to be actually innocent. Under the State‘s general postconviction relief statute, a prisoner may challenge his conviction when “there exists evidence of material facts, not previously presented and heard by the court, that requires vacation of the conviction or sentence in the interest of justice.”
Both parties agree that under these provisions of
In addition to this statutory procedure, the Alaska Court of Appeals has invoked a widely accepted three-part test to govern additional rights to DNA access under the State Constitution. Osborne II, 163 P. 3d, at 974–975. Drawing on the experience with DNA evidence of State Supreme Courts around the country, the Court of Appeals explained that it was “reluctant to hold that Alaska law offers no remedy to defendants who could prove their factual innocence.” Osborne I, 110 P. 3d, at 995;
This is the background against which the Federal Court of Appeals ordered the State to turn over the DNA evidence in its possession, and it is our starting point in analyzing Osborne‘s constitutional claims.
III
The parties dispute whether Osborne has invoked the proper federal statute in bringing his claim. He sued under the federal civil rights statute,
While Osborne‘s claim falls within the literal terms of
Osborne responds that his claim does not sound in habeas at all. Although invalidating his conviction is of course his ultimate goal, giving him the evidence he seeks “would not necessarily imply the invalidity of [his] confinement.” Brief for Respondent 21. If he prevails, he would receive only access to the DNA, and even if DNA testing exonerates him, his conviction is not automatically invalidated. He must bring an entirely separate suit or a petition for clemency to invalidate his conviction. If he were proved innocent, the State might also release him on its own initiative, avoiding any need to pursue habeas at all.
Osborne also invokes our recent decision in Wilkinson v. Dotson, 544 U. S. 74 (2005). There, we held that prisoners who sought new hearings for parole eligibility and suitability need not proceed in habeas. We acknowledged that the two plaintiffs “hope[d]” their suits would “help bring about earlier release,” id., at 78, but concluded that the
While we granted certiorari on this question, our resolution of Osborne‘s claims does not require us to resolve this difficult issue. Accordingly, we will assume without deciding that the Court of Appeals was correct that Heck does not bar Osborne‘s
IV
A
“No State shall... deprive any person of life, liberty, or property, without due process of law.”
In identifying his potential liberty interest, Osborne first attempts to rely on the Governor‘s constitutional authority to “grant pardons, commutations, and reprieves.”
Osborne does, however, have a liberty interest in demonstrating his innocence with new evidence under state law. As explained, Alaska law provides that those who use “newly discovered evidence” to “establis[h] by clear and convincing evidence that [they are] innocent” may obtain “vacation of [their] conviction or sentence in the interest of justice.”
The Court of Appeals went too far, however, in concluding that the Due Process Clause requires that certain familiar preconviction trial rights be extended to protect Osborne‘s postconviction liberty interest. After identifying Osborne‘s possible liberty interests, the court concluded that the State had an obligation to comply with the principles of Brady v. Maryland, 373 U. S. 83. In that case, we held that due process requires a prosecutor to disclose material exculpatory evidence to the defendant before trial. The Court of Appeals acknowledged that nothing in our precedents suggested that this disclosure obligation
A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man. At trial, the defendant is presumed innocent and may demand that the government prove its case beyond reasonable doubt. But “[o]nce a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.” Herrera, 506 U. S., at 399. “Given a valid conviction, the criminal defendant has been constitutionally deprived of his liberty.” Dumschat, supra, at 464 (internal quotation marks and alterations omitted).
The State accordingly has more flexibility in deciding what procedures are needed in the context of postconviction relief. “[W]hen a State chooses to offer help to those seeking relief from convictions,” due process does not “dictat[e] the exact form such assistance must assume.” Pennsylvania v. Finley, 481 U. S. 551, 559 (1987). Osborne‘s right to due process is not parallel to a trial right, but rather must be analyzed in light of the fact that he has already been found guilty at a fair trial, and has only a limited interest in postconviction relief. Brady is the wrong framework.
Instead, the question is whether consideration of Osborne‘s claim within the framework of the State‘s procedures for postconviction relief “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” or “transgresses any recognized principle of fundamental fairness in operation.” Medina v. California, 505 U. S. 437, 446, 448 (1992) (internal quotation marks omitted); see Herrera, supra, at 407–408 (applying Medina to postconviction relief for actual innocence); Finley, supra, at 556 (postconviction relief procedures are constitutional if they “compor[t] with fundamental fairness“). Federal courts may upset a State‘s postconviction relief procedures only if they are fundamentally inadequate to vindicate the substantive rights provided.
We see nothing inadequate about the procedures Alaska has provided to vindicate its state right to postconviction relief in general, and nothing inadequate about how those procedures apply to those who seek access to DNA evidence.
Alaska provides a substantive right to be released on a sufficiently compelling showing of new evidence that establishes innocence. It exempts such claims from otherwise applicable time limits. The State provides for discovery in postconviction proceedings, and has—through judicial decision—specified that this discovery procedure is available to those seeking access to DNA evidence. Patterson, 2006 WL 573797, *4. These procedures are not without limits. The evidence must indeed be newly available to qualify under Alaska‘s statute, must have been diligently pursued, and must also be sufficiently material. These procedures are similar to those provided for DNA evidence by federal law and the law of other States, see, e. g.,
And there is more. While the Alaska courts have not had occasion to conclusively decide the question, the Alaska Court of Appeals has suggested that the State Constitution provides an additional right of access to DNA. In expressing its “reluctan[ce] to hold that Alaska law offers no remedy” to those who belatedly seek DNA testing, and in invoking the three-part test used by other state courts, the court indicated that in an appropriate case the State Constitution may provide a failsafe even for those who cannot satisfy the statutory requirements under general postconviction procedures. Osborne I, 110 P. 3d, at 995–996.
To the degree there is some uncertainty in the details of Alaska‘s newly developing procedures for obtaining postconviction access to DNA, we can hardly fault the State for that. Osborne has brought this
His attempt to sidestep state process through a new federal lawsuit puts Osborne in a very awkward position. If he simply seeks the DNA through the State‘s discovery procedures, he might well get it. If he does not, it may be for a perfectly adequate reason, just as the federal statute and all state statutes impose conditions and limits on access to DNA evidence. It is difficult to criticize the State‘s procedures when Osborne has not invoked them. This is not to say that Osborne must exhaust state-law remedies. See Patsy v. Board of Regents of Fla., 457 U. S. 496, 500–501 (1982). But it is Osborne‘s burden to demonstrate the inadequacy of the state-law procedures available to him in state postconviction relief. Cf. Medina, supra, at 453. These procedures are adequate on their face, and without trying them, Osborne can hardly complain that they do not work in practice.
As a fallback, Osborne also obliquely relies on an asserted federal constitutional right to be released upon proof of “actual innocence.” Whether such a federal right exists is an open question. We have struggled with it over the years, in some cases assuming, arguendo, that it exists while also noting the difficult questions such a right would pose and the high standard any claimant would have to meet. House, 547 U. S., at 554–555; Herrera, 506 U. S., at 398–417; see also id., at 419–421 (O‘Connor, J., concurring); id., at 427–428 (SCALIA,
J., concurring); Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 159, n. 87 (1970). In this case too we can assume without deciding that such a claim exists, because even if so there is no due process
B
The Court of Appeals below relied only on procedural due process, but Osborne seeks to defend the judgment on the basis of substantive due process as well. He asks that we recognize a freestanding right to DNA evidence untethered from the liberty interests he hopes to vindicate with it. We reject the invitation and conclude, in the circumstances of this case, that there is no such substantive due process right. “As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Collins v. Harker Heights, 503 U. S. 115, 125 (1992). Osborne seeks access to state evidence so that he can apply new DNA-testing technology that might prove him innocent. There is no long history of such a right, and “[t]he mere novelty of such a claim is reason enough to doubt that ‘substantive due process’ sustains it.” Reno v. Flores, 507 U. S. 292, 303 (1993).
And there are further reasons to doubt. The elected governments of the States are actively confronting the challenges DNA technology poses to our criminal justice systems and our traditional notions of finality, as well as the opportunities it affords. To suddenly constitutionalize this area would short circuit what looks to be a prompt and considered legislative response. The first DNA-testing statutes were passed in 1994 and 1997.
In this case, the evidence has already been gathered and preserved, but if we extend substantive due process to this area, these questions would be before us in short order, and it is hard to imagine what tools federal courts would use to answer them. At the end of the day, there is no reason to suppose that their answers to these questions would be any better than those of state courts and legislatures, and good reason to suspect the opposite. See Collins, supra, at 125; Glucksberg, supra, at 720.
* * *
DNA evidence will undoubtedly lead to changes in the criminal justice system. It has done so already. The question is whether further change will primarily be made by legislative revision and judicial interpretation of the existing system, or whether the Federal Judiciary must leap ahead—revising (or even discarding) the system by creating a new constitutional right and taking over responsibility for refining it.
Federal courts should not presume that state criminal procedures will be inadequate to deal with technological change. The criminal justice system has historically accommodated new types of evidence, and is a time-tested means of carrying out society‘s interest in convicting the guilty while respecting individual rights. That system, like any human endeavor, cannot be perfect. DNA evidence shows that it has not been. But there is no basis for Osborne‘s approach of assuming that because DNA has shown that these procedures are not flawless, DNA evidence must be treated as categorically outside the process, rather than within it. That is precisely what his § 1983 suit seeks to do, and that is the contention we reject.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE ALITO, with whom JUSTICE KENNEDY joins, and with whom JUSTICE THOMAS joins as to Part II, concurring.
Respondent was convicted for a brutal sexual assault. At trial, the defense declined to have DNA testing done on a semen sample found at the scene of the crime. Defense counsel explained that this decision was made based on fear that the testing would provide further evidence
I agree with the Court‘s resolution of respondent‘s constitutional claim. In my view, that claim also fails for two independent reasons beyond those given by the majority. First, a state prisoner asserting a federal constitutional right to perform such testing must file a petition for a writ of habeas corpus, not an action under
I
As our prior opinions illustrate, it is sometimes difficult to draw the line between claims that are properly brought in habeas and those that may be brought under
We have long recognized the principles of federalism and comity at stake when state prisoners attempt to use the federal courts to attack their final convictions. See, e. g., Darr v. Burford, 339 U. S. 200, 204 (1950); Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 490-491 (1973); Preiser, supra, at 491-492; Rose v. Lundy, 455 U. S. 509, 518-519 (1982); Rhines v. Weber, 544 U. S. 269, 273-274 (2005). We accordingly held that “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Lundy, supra, at 518 (quoting Darr, supra, at 204). Congress subsequently codified Lundy‘s exhaustion requirement in the
We also have long recognized the need to impose sharp limits on state prisoners’ efforts to bypass state courts with their discovery requests. See, e. g., Wainwright v. Sykes, 433 U. S. 72, 87-90 (1977); Keeney v. Tamayo-Reyes, 504 U. S. 1, 8-10 (1992); Williams v. Taylor, 529 U. S. 420, 436 (2000). For example, we have held that “concerns of finality, comity, judicial economy,
The rules set forth in our cases and codified in AEDPA would mean very little if state prisoners could simply evade them through artful pleading. For example, I take it as common ground that a state prisoner‘s claim under Brady v. Maryland, 373 U. S. 83 (1963), must be brought in habeas because that claim, if proved, would invalidate the judgment of conviction or sentence (and thus the lawfulness of the inmate‘s confinement). See Heck, supra, at 481. But under respondent‘s view, I see no reason why a Brady claimant could not bypass the state courts and file a § 1983 claim in federal court, contending that he has a due process right to search the State‘s files for exculpatory evidence. Allowing such a maneuver would violate the principles embodied in Lundy, Keeney, and AEDPA.
Although respondent has now recharacterized his claim in an effort to escape the requirement of proceeding in habeas, in his complaint he squarely alleged that the State “deprived [him] of access to exculpatory evidence in violation of Brady [, supra], and the Due Process Clause of the Fourteenth Amendment to the U. S. Constitution.” App. 37. That allegedly “exculpatory” evidence—which Brady defines as “evidence favorable to [the] accused” and “material either to guilt or to punishment,” 373 U. S., at 87—would, by definition, undermine respondent‘s “guilt” or “punishment” if his allegations are true. Such claims should be brought in habeas, see Heck, supra, at 481, and respondent cannot avoid that result by attempting to bring his claim under § 1983, see Dotson, supra, at 92 (KENNEDY, J., dissenting).1
It is no answer to say, as respondent does, that he simply wants to use § 1983 as a discovery tool to lay the foundation for a future state postconviction application, a state clemency petition, or a request for relief by means of “prosecutorial consent.” See Brief for Respondent 23. Such tactics implicate precisely the same federalism and comity concerns that motivated our decisions (and Congress‘) to impose exhaustion requirements and discovery limits in federal habeas proceedings. If a petitioner can evade the habeas statute‘s exhaustion requirements in this way, I see no reason why a state prisoner asserting an ordinary Brady claim—i. e., a state prisoner who claims that the prosecution failed to turn over exculpatory evidence prior to trial—could not follow the same course.
What respondent seeks was accurately described in his complaint—the discovery of evidence that has a material bearing on his conviction. Such a claim falls within “the core” of habeas. Preiser, supra, at 489. Recognition of a constitutional right to postconviction scientific testing of evidence in the possession of the prosecution would represent an expansion
II
The principles of federalism, comity, and finality are not the only ones at stake for the State in cases like this one. To the contrary, DNA evidence creates special opportunities, risks, and burdens that implicate important state interests. Given those interests—and especially in light of the rapidly evolving nature of DNA testing technology—this is an area that should be (and is being) explored “through the workings of normal democratic processes in the laboratories of the States.” Atkins v. Virginia, 536 U. S. 304, 326 (2002) (Rehnquist, C. J., dissenting).2
A
As the Court notes, DNA testing often produces highly reliable results. See ante,
Alas, it is far from that simple. First, DNA testing—even when performed with modern STR technology, and even when performed in perfect accordance with protocols—often fails to provide “absolute proof” of anything. Post, at 98 (STEVENS, J., dissenting). As one scholar has observed:
“[F]orensic DNA testing rarely occurs [under] idyllic conditions. Crime scene DNA samples do not come from a single source obtained in immaculate conditions; they are messy assortments of multiple unknown persons, often collected in the most difficult conditions. The samples can be of poor quality due to exposure to heat, light, moisture, or other degrading elements. They can be of minimal or insufficient quantity, especially as investigators push DNA testing to its limits and seek profiles from a few cells retrieved from cigarette butts, envelopes, or soda cans. And most importantly, forensic samples often constitute a mixture of multiple persons, such that it is not clear whose profile is whose, or even how many profiles are in the sample at all. All of these factors make DNA testing in the forensic context far more subjective than simply reporting test results. . . .” Murphy, The Art in the Science of DNA: A Layperson‘s Guide to the Subjectivity Inherent in Forensic DNA Typing, 58 Emory L. J. 489, 497 (2008) (footnotes omitted).
See also R. Michaelis, R. Flanders, & P. Wulff, A Litigator‘s Guide to DNA 341 (2008) (hereinafter Michaelis) (noting that even “STR analyses are plagued by issues of suboptimal samples, equipment malfunctions and human error, just as any other type of forensic DNA test“); Harvey v. Horan, 278 F. 3d 370, 383, n. 4 (CA4 2002) (King, J., concurring in part and concurring in judgment) (noting that the first STR DNA test performed under Virginia‘s postconviction DNA access statute was inconclusive). Such concerns apply with particular force where, as here, the sample is minuscule, it may contain three or more persons’ DNA, and it may have degraded significantly during the 24 or more hours it took police to recover it.
Second, the State has important interests in maintaining the integrity of its evidence, and the risks associated with evidence contamination increase every time someone attempts to extract new DNA from a sample. According to Professor John Butler—who is said to have written “the canonical text on forensic DNA typing,” Murphy, supra, at 493, n. 16—“[t]he extraction process is probably where the DNA sample is more susceptible to contamination in the laboratory than at any other time in the forensic DNA analysis process,” J. Butler, Forensic DNA Typing 42 (2d ed. 2005).
Indeed, modern DNA testing technology is so powerful that it actually increases the risks associated with mishandling evidence. STR tests, for example, are so sensitive that they can detect DNA transferred from person X to a towel (with
Third, even if every test was guaranteed to provide a conclusive answer, and even if no one ever contaminated a DNA sample, that still would not justify disregarding the other costs associated with the DNA access regime proposed by respondent. As the Court notes, recognizing a prisoner‘s freestanding right to access the State‘s DNA evidence would raise numerous policy questions, not the least of which is whether and to what extent the State is constitutionally obligated to collect and preserve such evidence. See ante, at 73-74. But the policy problems do not end there.
Even without our creation and imposition of a mandatory-DNA-access regime, state crime labs are already responsible for maintaining and controlling hundreds of thousands of new DNA samples every year. For example, in the year 2005, the State of North Carolina processed DNA samples in approximately 1,900 cases, while the Commonwealth of Virginia processed twice as many. See Office of State Budget and Management, Cost Study of DNA Testing and Analysis As Directed by Session Law 2005-267, Section 15.8, pp. 5, 8 (Mar. 1, 2006) (hereinafter North Carolina Study), http://www.osbm.state.nc.us/files/pdf_files/3-1-2006FinalDNAReport.pdf (all Internet materials as visited June 16, 2009, and available in Clerk of Court‘s case file); see also id., at 8 (noting that the State of Iowa processed DNA samples in 1,500 cases in that year). Each case often entails many separate DNA samples. See Wisconsin Criminal Justice Study Commission, Position Paper: Decreasing the Turnaround Time for DNA Testing, p. 2 (hereinafter Wisconsin Study), http://www.wcjsc.org/WCJSC_Report_on_DNA_Backlog.pdf (“An average case consists of 8 samples“). And these data—which are now four years out of date—dramatically underestimate the States’ current DNA-related caseloads, which expand at an average annual rate of around 24%. See Wisconsin Dept. of Justice, Review of State Crime Lab Re-sources for DNA Analysis 6 (Feb. 12, 2007), http://www.doj.state.wi.us/news/files/dnaanalysisplan.pdf.
The resources required to process and analyze these hundreds of thousands of samples have created severe backlogs in state crime labs across the country. For example, the State of Wisconsin reports that it receives roughly 17,600 DNA samples
The procedures that the state labs use to handle these hundreds of thousands of DNA samples provide fertile ground for litigation. For example, in Commonwealth v. Duarte, 56 Mass. App. 714, 723, 780 N. E. 2d 99, 106 (2002), the defendant argued that “the use of a thermometer that may have been overdue for a standardization check rendered the DNA analysis unreliable and inadmissible” in his trial for raping a 13-year-old girl. The court rejected that argument and held “that the status of the thermometer went to the weight of the evidence, and not to its admissibility,” id., at 724, 780 N. E. 2d, at 106, and the court ultimately upheld Duarte‘s conviction after reviewing the testimony of the deputy director of the laboratory that the Commonwealth used for the DNA tests, see ibid. But the case nevertheless illustrates “that no detail of laboratory operation, no matter how minute, is exempt as a potential point on which a defense attorney will question the DNA evidence.” Michaelis 68; see also id., at 68-69 (discussing the policy implications of Duarte).
My point in recounting the burdens that postconviction DNA testing imposes on the Federal Government and the States is not to denigrate the importance of such testing. Instead, my point is that requests for postconviction DNA testing are not cost free. The Federal Government and the States have a substantial interest in the implementation of rules that regulate such testing in a way that harnesses the unique power of DNA testing while also respecting the important governmental interests noted above. The Federal Government and the States have moved expeditiously to enact rules that attempt to perform this role. And as the Court holds, it would be most unwise for this Court, wielding the blunt instrument of due process, to interfere prematurely with these efforts.
B
I see no reason for such intervention in the present case. When a criminal defendant, for tactical purposes, passes up the opportunity for DNA testing at trial, that defendant, in my judgment, has no constitutional right to demand to perform DNA testing after conviction. Recognition of such a right would allow defendants to play games with the criminal justice system. A guilty defendant could forgo DNA testing at trial for fear that the results would confirm his guilt, and in the hope that the other evidence would be insufficient to persuade the jury to find him guilty. Then, after conviction, with nothing to lose, the defendant could demand DNA testing in the hope that some happy accident—for example, degradation or contamination of the evidence—would provide the basis for seeking postconviction relief. Denying the opportunity for such an attempt to game the criminal justice system should not shock the conscience of the Court.
There is ample evidence in this case that respondent attempted to game the system. At trial, respondent‘s lawyer made an explicit, tactical decision to forgo restriction-fragment-length-polymorphism (RFLP) testing in favor of less reliable DQ Alpha testing. Having forgone more accurate DNA testing once before, respondent‘s reasons for seeking it now are suspect. It is true that the STR testing respondent now seeks is even more advanced than the
JUSTICE STEVENS contends that respondent should not be bound by his attorney‘s tactical decision and notes that respondent testified in the state postconviction proceeding that he strongly objected to his attorney‘s strategy. See post, at 97-98, n. 8. His attorney, however, had no memory of that objection, and the state court did not find that respondent‘s testimony was truthful.3 Nor do we have reason to assume that respondent was telling the truth, particularly since he now claims that he lied at his parole hearing when he twice confessed to the crimes for which he was convicted.
In any event, even assuming for the sake of argument that respondent did object at trial to his attorney‘s strategy, it is a well-accepted principle that, except in a few carefully defined circumstances, a criminal defendant is bound by his attorney‘s tactical decisions unless the attorney provided constitutionally ineffective assistance. See Vermont v. Brillon, 556 U. S. 81, 90-91 (2009).4 Here, the state postconviction
court rejected respondent‘s ineffective-assistance claim, Osborne I, supra, at 991-992; respondent does not challenge that holding; and we must therefore proceed on the assumption that his attorney‘s decision was reasonable and binding.5
* * *
If a state prisoner wants to challenge the State‘s refusal to permit postconviction DNA testing, the prisoner should proceed under the habeas statute, which duly accounts for the interests of federalism, comity, and finality. And in considering the
JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER join, and with whom JUSTICE SOUTER joins as to Part I, dissenting.
The State of Alaska possesses physical evidence that, if tested, will conclusively establish whether respondent William Osborne committed rape and attempted murder. If he did, justice has been served by his conviction and sentence. If not, Osborne has needlessly spent decades behind bars while the true culprit has not been brought to justice. The DNA test Osborne seeks is a simple one, its cost modest, and its results uniquely precise. Yet for reasons the State has been unable or unwilling to articulate, it refuses to allow Osborne to test the evidence at his own expense and to thereby ascertain the truth once and for all.
On two equally problematic grounds, the Court today blesses the State‘s arbitrary denial of the evidence Osborne seeks. First, while acknowledging that Osborne may have a due process right to access the evidence under Alaska‘s postconviction procedures, the Court concludes that Osborne has not yet availed himself of all possible avenues for relief in state court.1 As both a legal and factual matter, that conclusion is highly suspect. More troubling still, based on a fundamental mischaracterization of the right to liberty that Osborne seeks to vindicate, the Court refuses to acknowledge “in the circumstances of this case” any right to access the evidence that is grounded in the Due Process Clause itself. Because I am convinced that Osborne has a constitutional right of access to the evidence he wishes to test and that, on the facts of this case, he has made a sufficient showing of entitlement to that evidence, I would affirm the decision of the Court of Appeals.
I
The Fourteenth Amendment provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.”
recognized that protected liberty interests may arise “from the Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ . . . or it may arise from an expectation or interest created by state laws or policies.” Wilkinson v. Austin, 545 U. S. 209, 221 (2005). Osborne contends that he possesses a right to access DNA evidence arising from both these sources.
Osborne first anchors his due process right in
Although States are under no obligation to provide mechanisms for postconviction relief, when they choose to do so, the procedures they employ must comport with the demands of the Due Process Clause, see Evitts v. Lucey, 469 U. S. 387, 393 (1985), by providing litigants with fair opportunity to
assert their state-created rights. Osborne contends that by denying him an opportunity to access the physical evidence, the State has denied him meaningful access to state postconviction relief, thereby violating his right to due process.
Although the majority readily agrees that Osborne has a protected liberty interest in demonstrating his innocence with new evidence under
While I agree that the statute is not facially deficient, the state courts’ application of
ery is possible based on a single, unpublished, nonprecedential decision from the Alaska Court of Appeals, see ante, at 70 (citing Patterson v. State, No. A-8814, 2006 WL 573797 (Mar. 8, 2006)),
Of even greater concern is the manner in which the state courts applied
The same holds true with respect to the majority‘s suggestion that the Alaska Constitution might provide additional protections to Osborne above and beyond those afforded under
Osborne made full use of available state procedures in his
efforts to secure access to evidence for DNA testing so that
he might avail himself of the postconviction relief afforded by
the State of Alaska. He was rebuffed at every turn. The
manner in which the Alaska courts applied state
II
Wholly apart from his state-created interest in obtaining
postconviction relief under
The liberty protected by the Due Process Clause is not a
creation of the Bill of Rights. Indeed, our Nation has long
recognized that the liberty safeguarded by the Constitution
has far deeper roots. See
Although a valid criminal conviction justifies punitive de-
tention, it does not entirely eliminate the liberty interests of
convicted persons. For while a prisoner‘s “rights may be
diminished by the needs and exigencies of the institutional
environment, ... [t]here is no iron curtain drawn between
the Constitution and the prisons of this country.” Wolff v.
McDonnell, 418 U. S. 539, 555-556 (1974); Shaw v. Murphy,
532 U. S. 223, 228-229 (2001) (“[I]ncarceration does not di-
vest prisoners of all constitutional protections“). Our cases
have recognized protected interests in a variety of postcon-
viction contexts, extending substantive constitutional pro-
tections to state prisoners on the premise that the Due Proc-
ess Clause of the
Recognition of this right draws strength from the fact that 46 States and the Federal Government have passed statutes providing access to evidence for DNA testing, and 3 addi- tional States (including Alaska) provide similar access through court-made rules alone, see Brief for State of Cali- fornia et al. as Amici Curiae 3-4, n. 1, and 2; ante, at 62-63 (opinion of the Court). These legislative developments are consistent with recent trends in legal ethics recognizing that prosecutors are obliged to disclose all forms of exculpatory evidence that come into their possession following convic-tion. See, e. g., ABA Model Rules of Professional Conduct 3.8(g)-(h) (2008); see also Imbler v. Pachtman, 424 U. S. 409, 427, n. 25 (1976) (“[A]fter a conviction the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction“). The fact that nearly all the States have now recognized some postcon- viction right to DNA evidence makes it more, not less, appro- priate to recognize a limited federal right to such evidence in cases where litigants are unfairly barred from obtaining relief in state court.
Insofar as it is process Osborne seeks, he is surely entitled to less than “the full panoply of rights” that would be due a criminal defendant prior to conviction, see Morrissey v. Brewer, 408 U. S. 471, 480 (1972). That does not mean, how- ever, that our pretrial due process cases have no relevance in the postconviction context. In Brady v. Maryland, 373 U. S. 83, 87 (1963), we held that the State violates due proc- ess when it suppresses “evidence favorable to an accused” that is “material either to guilt or to punishment, irrespec- tive of the good faith or bad faith of the prosecution.” Al- though Brady does not directly provide for a postconviction right to such evidence, the concerns with fundamental fair- ness that motivated our decision in that case are equally present when convicted persons such as Osborne seek access to dispositive DNA evidence following conviction.
Recent scientific advances in DNA analysis have made “it literally possible to confirm guilt or innocence beyond any question whatsoever, at least in some categories of cases.” Harvey, 285 F. 3d, at 305 (Luttig, J.). As the Court recog- nizes today, the powerful new evidence that modern DNA testing can provide is “unlike anything known before.” Ante, at 62. Discussing these important forensic develop- ments in his oft-cited opinion in Harvey, Judge Luttig ex- plained that although “no one would contend that fairness, in the constitutional sense, requires a post-conviction right of access or a right to disclosure anything approaching in scope that which is required pre-trial,” in cases “where the government holds previously-produced forensic evidence, the testing of which concededly could prove beyond any doubt that the defendant did not commit the crime for which he was convicted, the very same principle of elemental fairness that dictates pre-trial production of all potentially exculpa- tory evidence dictates post-trial production of this infinitely narrower category of evidence.” 285 F. 3d, at 317. It does so “out of recognition of the same systemic interests in fair- ness and ultimate truth.” Ibid.
Observing that the DNA evidence in this case would be so probative of Osborne‘s guilt or innocence that it exceeds the materiality standard that governs the disclosure of evidence under Brady, the Ninth Circuit granted Osborne‘s request for access to the State‘s evidence. See 521 F. 3d, at 1134. In doing so, the Court of Appeals recognized that Osborne possesses a narrow right of postconviction access to biologi- cal evidence for DNA testing “where [such] evidence was used to secure his conviction, the DNA testing is to be con- ducted using methods that were unavailable at the time of trial and are far more precise than the methods that were then available, such methods are capable of conclusively determining whether Osborne is the source of the genetic material, the testing can be conducted without cost or preju- dice to the State, and the evidence is material to available forms of post-conviction relief.” Id., at 1142. That conclu- sion does not merit reversal.
If the right Osborne seeks to vindicate is framed as purely substantive, the proper result is no less clear. “The touch- stone of due process is protection of the individual against arbitrary action of government,” Meachum, 427 U. S., at 226 (internal quotation marks omitted); Wolff, 418 U. S., at 558; County of Sacramento v. Lewis, 523 U. S. 833, 845-846 (1998). When government action is so lacking in justifica- tion that it “can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense,” Collins v. Harker Heights, 503 U. S. 115, 128 (1992), it violates the Due Process Clause. In my view, the State‘s refusal to provide Osborne with access to evidence for DNA testing qualifies as arbitrary.
Throughout the course of state and federal litigation, the State has failed to provide any concrete reason for denying Osborne the DNA testing he seeks, and none is apparent. Because Osborne has offered to pay for the tests, cost is not a factor. And as the State now concedes, there is no reason to doubt that such testing would provide conclusive confir- mation of Osborne‘s guilt or revelation of his innocence.7 In the courts below, the State refused to provide an explanation for its refusal to permit testing of the evidence, see Brief for Respondent 33, and in this Court, its explanation has been, at best, unclear. Insofar as the State has articulated any reason at all, it appears to be a generalized interest in pro- tecting the finality of the judgment of conviction from any possible future attacks. See Brief for Petitioners 18, 50.8
This conclusion draws strength from the powerful state
interests that offset the State‘s purported interest in finality
per se. When a person is convicted for a crime he did not
commit, the true culprit escapes punishment. DNA testing
may lead to his identification. See Brief for Current and
Former Prosecutors as Amici Curiae 16 (noting that in more
than one-third of all exonerations DNA testing identified the
actual offender). Crime victims, the law enforcement pro-
fession, and society at large share a strong interest in identi-
fying and apprehending the actual perpetrators of vicious
crimes, such as the rape and
The arbitrariness of the State‘s conduct is highlighted by comparison to the private interests it denies. It seems to me obvious that if a wrongly convicted person were to produce proof of his actual innocence, no state interest would be sufficient to justify his continued punitive detention. If such proof can be readily obtained without imposing a sig- nificant burden on the State, a refusal to provide access to such evidence is wholly unjustified.
In sum, an individual‘s interest in his physical liberty is one of constitutional significance. That interest would be vindicated by providing postconviction access to DNA evi-dence, as would the State‘s interest in ensuring that it pun- ishes the true perpetrator of a crime. In this case, the State has suggested no countervailing interest that justifies its re- fusal to allow Osborne to test the evidence in its possession and has not provided any other nonarbitrary explanation for its conduct. Consequently, I am left to conclude that the State‘s failure to provide Osborne access to the evidence con- stitutes arbitrary action that offends basic principles of due process. On that basis, I would affirm the judgment of the Ninth Circuit.
III
The majority denies that Osborne possesses a cognizable substantive due process right under the “circumstances of this case,” and offers two meager reasons for its decision. First, citing a general reluctance to “‘expand the concept of substantive due process,‘” ante, at 72 (quoting Collins, 503 U. S., at 125), the Court observes that there is no long history of postconviction access to DNA evidence. “The mere nov- elty of such a claim,” the Court asserts, “is reason enough to doubt that ‘substantive due process’ sustains it,” ante, at 72 (quoting Reno v. Flores, 507 U. S. 292, 303 (1993)). The flaw is in the framing. Of course courts have not historically granted convicted persons access to physical evidence for STR and mtDNA testing. But, as discussed above, courts have recognized a residual substantive interest in both phys- ical liberty and in freedom from arbitrary government ac- tion. It is Osborne‘s interest in those well-established liber- ties that justifies the Court of Appeals’ decision to grant him access to the State‘s evidence for purposes of previously un- available DNA testing.
The majority also asserts that this Court‘s recognition of
a limited federal right of access to DNA evidence would be
ill advised because it would “short circuit what looks to be a
prompt and considered legislative response” by the States
and Federal Government to the issue of access to DNA evi-
dence. Ante, at 73. Such a decision, the majority warns,would embroil the Court in myriad policy questions best left
to other branches of government. Ante, at 72-74. The ma-
jority‘s arguments in this respect bear close resemblance to
the manner in which the Court once approached the now-
venerable right to counsel for indigent defendants. Before
our decision in Powell v. Alabama, 287 U. S. 45 (1932), state
law alone governed the manner in which counsel was ap-
pointed for indigent defendants. “Efforts to impose a mini-
mum federal standard for the right to counsel in state courts
routinely met the same refrain: ‘in the face of these widely
varying state procedures,’ this Court refused to impose the
dictates of ‘due process’ onto the states and ‘hold invalid all
procedure not reaching that standard.‘” Brief for Current
and Former Prosecutors as Amici Curiae 28, n. 8 (quoting
Bute v. Illinois, 333 U. S. 640, 668 (1948)).
request and obtain such access; it would merely ensure that States do so in a manner that is nonarbitrary.
While it is true that recent advances in DNA technology have led to a nationwide reexamination of state and federal postconviction procedures authorizing the use of DNA test- ing, it is highly unlikely that affirming the judgment of the Court of Appeals would significantly affect the use of DNA testing in any of the States that have already developed stat- utes and procedures for dealing with DNA evidence or would require the few States that have not yet done so to postpone the enactment of appropriate legislation.11 Indeed, a hold- ing by this Court that the policy judgments underlying that legislation rest on a sound constitutional foundation could only be constructive.
IV
Osborne has demonstrated a constitutionally protected right to due process which the State of Alaska thus far has
not vindicated and which this Court is both empowered and obliged to safeguard. On the record before us, there is no reason to deny access to the evidence and thereJUSTICE SOUTER, dissenting.
I respectfully dissent on the ground that Alaska has failed
to provide the effective procedure required by the
I would not decide Osborne‘s broad claim that the
There is no denying that the Court is correct when it notes that a claim of right to DNA testing, post-trial at that, is a novel one, but that only reflects the relative novelty of test- ing DNA, and in any event is not a sufficient reason alone toreject the right asserted, see Reno v. Flores, 507 U. S. 292, 318-319 (1993) (O‘Connor, J., concurring). Tradition is of course one serious consideration in judging whether a chal- lenged rule or practice, or the failure to provide a new one, should be seen as violating the guarantee of substantive due process as being arbitrary, or as falling wholly outside the realm of reasonable governmental action. See Poe v. Ull- man, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). We recognize the value and lessons of continuity with the past, but as Justice Harlan pointed out, society finds reasons to modify some of its traditional practices, ibid., and the accu- mulation of new empirical knowledge can turn yesterday‘s reasonable range of the government‘s options into a due process anomaly over time.
As for determining the right moment for a court to decide
whether substantive due process requires recognition of an
individual right unsanctioned by tradition (or the invalida-
tion of traditional law), I certainly agree with the Court that
the beginning of wisdom is to go slow. Substantive due
process expresses the conception that the liberty it protects
is a freedom from arbitrary government action, from re-
straints lacking any reasonable justification, id., at 541,1 and
a substantive due process claim requires attention to two
closely related elements that call for great care on the part
of a court. It is crucial, first, to be clear about whose under-
standing
It goes without saying that the conception of the reason- able looks to the prevailing understanding of the broad soci-ety, not to individual notions that a judge may entertain for himself alone, id., at 542, 544, and in applying a national con- stitution the society of reference is the nation. On specific issues, widely shared understandings within the national so- ciety can change as interests claimed under the rubric of lib- erty evolve into recognition, see Griswold v. Connecticut, 381 U. S. 479 (1965) (personal privacy); Lawrence v. Texas, 539 U. S. 558 (2003) (sexual intimacy); see also Washington v. Glucksberg, 521 U. S. 702, 752 (1997) (SOUTER, J., concur- ring in judgment), or are recast in light of experience and accumulated knowledge, compare Roe v. Wade, 410 U. S. 113 (1973), with Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) (joint opinion of O‘Connor, KEN- NEDY, and SOUTER, JJ.).
Changes in societal understanding of the fundamental rea- sonableness of government actions work out in much the same way that individuals reconsider issues of fundamental belief. We can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally. Just as at- tachment to the familiar and the limits of experience affect the capacity of an individual to see the potential legitimacy of a moral position, the broader society needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim before it makes sense to de- clare unsympathetic state or national laws arbitrary to the point of being unconstitutional. The time required is a mat- ter for judgment depending on the issue involved, but the need for some time to pass before a court entertains a sub- stantive due process claim on the subject is not merely the requirement of judicial restraint as a general approach, but a doctrinal demand to be satisfied before an allegedly lagging legal regime can be held to lie beyond the discretion of rea- sonable political judgment.
Despite my agreement with the Court on this importance of timing, though, I do not think that the doctrinal require- ment necessarily stands in the way of any substantive due process consideration of a postconviction right to DNA test- ing, even as a right that is freestanding. Given the pace at which DNA testing has come to be recognized as potentially dispositive in many cases with biological evidence, there is no obvious argument that considering DNA testing at a gen- eral level would subject wholly intransigent legal systems to substantive due process review prematurely. But, as I said, there is no such issue before us, for Alaska does not flatly deny access to evidence for DNA testing in postconviction cases.
In another case, a judgment about appropriate timing
might also be necessary on issues of substantive due process
at the more specific level of the State‘s conditions for exercis-
ing the right to test. Several such limitations are poten-
tially implicated, including the need of a claimant to show
that the test results would be material as
Osborne‘s objection here is not only to the content of the
State‘s terms and conditions, but also to the adequacy of
Alaska‘s official machinery in applying them, and there is no
reason to defer consideration of this due process claim: given
the conditions Alaska has placed on the right it recognizes,
the due process guarantee requires the State to provide an
effective procedure for proving entitlement to relief under
that scheme, Evitts, 469 U. S., at 393, and the State has
failed. On this issue, Osborne is entitled to relief. Alaska
has presented no good reasons even on its own terms for
denying Osborne the access to the evidence he seeks, and
the inexplicable failure of the State to provide an effective
procedure is enough to show a need for a
In effect, Alaska argues against finding any right to relief
in a federal
Yet the record shows that Osborne has been denied access to the evidence even though he satisfied each of these condi- tions. As for the requirement to claim testing by a method not available at trial, Osborne‘s state-court appellate brief specifically mentioned his intent to conduct short tandem repeat analysis, App. 171, 175, and the State points to no pleading, brief, or evidence that Osborne ever changed this request.
The State‘s reliance on Osborne‘s alleged failure to claim
factual innocence is equally untenable. While there is no
question that after conviction and imprisonment he admitted
guilt under oath as a
This is not the first time the State has produced reasons for opposing Osborne‘s request that collapse upon inspection. Arguing before the Ninth Circuit, the State maintained that the DNA evidence Osborne sought was not material; that is, it argued that a test excluding Osborne as the source of semen in the blue condom, found near the bloody snow and spent shell casing in the secluded area where the victim was raped by one man, would not “establish that he was factually innocent” or even “undermine confidence in ... the verdict.” Reply Brief for Appellants in No. 06-35875 (2008), p. 18; see also 521 F. 3d 1118, 1136 (CA9 2008). Such an argument ispatently untenable, and the State now concedes that a favor- able test could “conclusively establish Osborne‘s innocence.” Reply to Brief in Opposition 8.
Standing alone, the inadequacy of each of the State‘s reasons for denying Osborne access to the DNA evidence he seeks would not make out a due process violation.4 But taken as a whole the record convinces me that, while Alaska has created an entitlement of access to DNA evidence under conditions that are facially reasonable, the State has demon- strated a combination of inattentiveness and intransigence in applying those conditions that add up to procedural unfair- ness that violates the Due Process Clause.