In an article today on the growing importance of DNA information in the criminal justice system, the New York Times reports: “All but eight states now give inmates varying degrees of access to DNA evidence that might not have been available at the time of their convictions.”
And in a NYTimes story on Saturday; Texas is moving ahead with execution by lethal injection (next up, a Honduran, Mr. Chi,) despite the Supreme Court’s last minute intervention the previous day to prevent a similar execution (since the drug administered may result in pain that could be considered cruel and unusual): “A lawyer here who represents Hondurans in the United States, Terence O’Rourke, has said Mr. Chi’s execution would violate international law.”
What struck me about these events, apart from the importance of the events themselves, was the philosophical basis for deciding matters of importance to society at the local, state, federal or even international level. I wondered why a prisoner in one state detention system should be denied access to DNA test results if, as a society, we were to conclude that access to such test results was reasonable and good. And why when we have international laws about some things, as a matter of simple humanity, we wouldn’t have international laws about others.
I realize that there are practical matters to consider (not least of which the difficulty of arriving at decisions and implementing on a large scale), and I realize that the constitution and legal system of the United States deliberately leaves many matters to be determined and decided by the local and state legislature, but from a philosophical perspective, such an arrangement troubles me. And it troubles me further that there seems to be such a fierce defense of the right for local and state legislatures to reach their own determinations. Surely if something of such importance as DNA access is appropriate in one jurisdiction it is appropriate in another?
I grew up in England where such things are determined far more homogeneously. The laws of the land don’t vary from place to place in England for matters of great importance (although there are by-laws for matters of limited importance). Which perhaps explains to some extent why it strikes me so oddly that something as important as a convicted person’s right to access DNA information can be withheld in some parts of the country and not in others.
To approach this philosophically: Ideally, a society creates rules and laws that serve its collective and individual interests. We can think of society at various levels — a small social group, an organization or community, a town or city, a state, a country, and the world. Sometimes the rules and laws of a particular group logically apply only to that group (the requirements for membership of a club, for instance). And sometimes the rules and laws of a particular group naturally intersect with a larger or different group — local, state, and federal laws for instance.
One can say that logically the rules and laws within the jurisdiction of a group should be appropriate to the universality of that which is being determined.
For instance, to take a simple example, laws about how close I can build my house to another house have a great deal to do with the particular geography and density of population of the place I live. The zoning laws of New York City probably don’t make sense in Billings Montana. The same could be said about noise ordinances, or any number of concerns that would naturally vary in their importance and interpretation from one place to another.
But the same does not seem to logically apply to the example of access to DNA evidence. Logically, if access to DNA evidence can mean the difference between incarceration and exoneration of the innocent, such right to access should be determined nationally not locally. Innocence or guilt does not vary from state to state.
Likewise, I would think that as a species we could find general agreement between countries on what is cruel or inhuman. (Sad to say that the current United States administration has not set good precedent on applying such logic.)
This is a theme and pattern that comes up again and again. Accepted processes and procedures, whether legal or otherwise, very often come about by custom and by the sway of particular events and people. Over time they become accepted. We don’t challenge their logical foundation.  Rarely do we take a set of problems and concerns and seek to understand them logically, rationally, from their founding principles. Logical interpretation won’t always provide the best solution or the only solution, but it is a perspective that should always be considered.
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The United States has a prison population far higher than anywhere else in the world. This is a recent phenomenon. About thirty years ago the US prison population started to climb and now other countries regard the US’s penal system as shocking.
And slowly but surely details of the Bush administration’s disregard for human rights and US law continue to emerge. Bush and his senior team spent a good deal of time and energy devising mechanisms that would allow them to torture detainees. (Of course, the administration’s blatant disregard for appropriate justification wasn’t limited to the abuse of prisoners. It has been a consistent pattern.)
As we’ve seen with the Catholic church in recent years, the infallible have a lot to learn. Errors of national ego punctuate the history of civilization like buckshot. The only thing that can save us from even worse transgressions and further isolation is a healthy dose of humility.