The USA Today reports that 12 states allow prosecutors to introduce DNA evidence from unprosecuted crimes at parole hearings – in some cases, even after the statute of limitations has run. There are a few obvious criticisms of this policy ranging from fairness and process issues to the question of whether conduct predating the inmate’s sentenced crime is particularly germane to the issues a parole board normally considers (such as the inmate’s degree of success during incarceration.)
One slightly different issue stuck out for me, however. In the story, a prosecutor is quoted as arguing that denying parole for these uncharged offenses will make offenders “pay at least some price for their actions.” I’m just not certain that the parole board is the right venue to make people pay for crimes for which they’ve never been convicted. In fact, I doubt many states have authorized their parole boards to “punish” people for uncharged crimes. If states are actually extending this authority to parole boards, that’s a whopper of a problem in its own right; I can’t imagine that it would be constitutional to mete out punishment for an uncharged crime under these circumstances.
I feel confident that the public will cheer any opportunity to punish criminal conduct. Notwithstanding the allure of using DNA strategically to punish inmates at their parole hearings, states should think twice about doing so. There is a time and a place, and a parole hearing is generally neither.
[Image from a 1958 Michigan parole hearing.]
I agree that it seems extremely unfair to present DNA evidence for uncharged crimes at parole hearings. But I wouldn’t go so far as to say that such evidence is not “germane to the issues a parole board normally considers.”
One of the big questions that parole boards have to decide is how likely a particular inmate is to commit a future crime. The U.S Parole Commission (back when the feds had a parole system) considered a defendant's past crimes to be highly probative of future recidivism risk. And all of the data that I've seen tends to confirm the correlation.
That said, this DNA would only *suggest* that the defendant committed another crime; it wouldn't have all of the procedural protections associated with a conviction, so you could obviously object to it (at least as a matter of policy) on those grounds.