Sometimes the job of legislating involves weighing not just one interest or two but a whole group of them, all competing against each other - even when the core issue seems simple.
For example, Senate Bill 554.
The background is that technology used in criminal forensics has been changing dramatically (think, for example, of advances in DNA identification) in the last few decades, and in a significant number of cases has resulted in the exoneration of people convicted of crimes up to and including murder. No argument has surfaced against the idea of clearing the records of people who actually did not do the crime for which they were convicted.
Oregon legislators haven’t been inactive in this area. The legislature updated in 2019 the law regarding DNA evidence, and in 2021 expanded the law allowing for reconsideration of convictions (in cases where a DA and the defendant are in agreement). Despite the limitations, Oregon as of last month had 500 active post-conviction relief cases.
Still, Oregon law, like that in most states, hasn’t fully kept up with changes in technology, and 554 is an attempt to do that. It adds a specific legal procedure (a new pathway for “post-conviction relief”) in which a convict can challenge the evidence used in their case if advances in science since the conviction throw a new light on it, maybe reversing the story it seemed to tell.
The new measure carries the positive of moving toward justice (even if belated). Developed through the Forensic Justice Project and Innocence Project, its legislative sponsors are thoroughly bipartisan, including both the Democratic chair and Republican vice-chair of the Senate Committee on Judiciary.
At the committee’s hearing on February 6, most of the testimony ran in favor, and was plenty compelling.
Oregon wouldn’t be the first state to try this approach. Texas - usually never shy about throwing the book at the accused - passed a similar measure in 2013, and reports from there have sounded positive. To those concerned about a wave of inmate lawsuits, Texans can cite just 25 petitions for relief under the new law. Other states including California have reported similar results.
The Innocence Project pointed out a variety of types of forensic evidence which used in improper ways - as, it suggested, often has been the case - could yield the wrong conclusion, such as bullet lead analysis and microscopic hair review. It said the National Fire Protection Association has concluded that “many of the physical artifacts previously thought to occur only in intentional fires—such as ‘alligatoring’ of wood, crazed glass, and sagged furniture springs—could actually occur in accidental fires” - and such revised opinions were not widely adopted until many years after the conclusions were reached.
The strongest opposition to the new bill, as you might expect, comes from the Oregon District Attorneys Association. Oregon already has, it said, a “Post-Conviction Hearing Act, which generally only allows for relief when a defendant’s conviction was the result of a constitutional violation or entered by a court lacking jurisdiction to do so. SB 554 would require relitigating convictions when no constitutional violation is even alleged.” That suggests part of the problem its advocates want addressed: Correctives are often available only when constitutional or procedural issues but not the actual facts and evidence are a basis for revisiting the conviction. The DAs did not argue that some path to addressing evidence change shouldn’t be developed, but cautioned about the specifics in this bill.
The bar for filing under the law would be low; a convict wouldn’t even have to assert he or she actually is innocent, and when the convict actually pleaded guilty. The counter, of course, is the guilty pleas sometimes come after plea bargaining when a reluctant accused person formally admits to guilt as the best roll of the dice.
There are other, simpler arguments harder to swiftly rebut.
Such as those of limitless consequences. There’s no deadline in the bill for filing for relief (other than that you’re still alive). There is no financial cost cap on re-examining the science involved, nor a super-clear definition of what scientific changes may be allowable under the statute. And for any number of crimes, there may be no final closure: A murder committed 30 years ago, and for which a person was convicted, might still be in effect an open case. Victims or the people around them may have some concern with the idea that there may never be closure.
And the question of an open checkbook. Advocates argued that, “Our rights should not have a price tag,” but still: Any trial lawyer can tell you that obtaining expert testimony or research can be highly expensive. How expensive it might be and who would pay for it are questions left open in the legislation.
Getting to the right and wrong of legislation intended simply to apply truth and facts should not seem to be so complex. But there are times legislators are better off with time to ponder the appropriate line of justice, maybe over a span of several months rather than weeks.
This column originally appeared in the Oregon Capital Chronicle.
I keep recalling the immortal line Humphrey Bogart delivered 