Acknowledging guilt: Forcing self-identification in post-conviction DNA testing

I. INTRODUCTION The role of post-conviction DNA testing in exonerating the actually innocent1 has gained widespread public attention.2 What receive far less public attention, but are nonetheless much more common stories, are cases where inmates seek post-conviction DNA testing, but the results confirm their guilt.3 This phenomenon has become so widespread that it has overwhelmed state prosecutors' offices, dramatically hampering their ability to process meritorious claims.4 A costless chance at freedom through post-conviction DNA testing is attractive to the innocent and the guilty alike. Numerous states have recognized that since the judicial system cannot cope with every prisoner trying his or her luck in this way, the state must develop a system that imposes costs for post-conviction DNA testing.5 But most states have responded by imposing monetary costs, which apply regardless of whether the tests establish prisoners' innocence or confirm their guilt. As such, these regimes do not address the fundamental problem of perverse incentives, which currently encourage the guilty to seek post-conviction DNA testing. Additionally, imposing monetary costs overly punishes potentially innocent poor or indigent prisoners, while at the same time undersanctioning wealthy guilty prisoners. This is a problem of private information: The state wants to make a post-conviction DNA testing process available only to the innocent, but while prisoners know whether they are innocent, the state does not. The standard legal response to such a problem is to get more information, which has been the major state response to the problem of an unmanageable number of post-conviction DNA petitions. Various states and the federal government have set up comprehensive vetting mechanisms to attempt to ascertain which petitions are most likely to lead to exonerations. This process, however, necessarily devolves down to highly subjective judgments, adds to the workload of prosecutors and other vetters-thus worsening the problem of the overloaded petition system-and potentially excludes petitions of both guilty and innocent parties. In contrast, an economic solution to the problem of private information is to structure incentives so as to force innocent and guilty prisoners alike to self-identify as such by creating screening mechanisms. By altering the incentives of prisoners, states can make it attractive to the actually innocent to seek post-conviction DNA testing, and at the same time make it unattractive to the guilty to seek such tests. We propose an economic screening model that would allow states to differentiate between innocent and guilty petitioners for the purposes of post-conviction DNA testing by punishing with additional incarceration those petitioners whose guilt is confirmed by DNA tests. Such a scheme may sound draconian, but under this system, actually innocent prisoners who were wrongfully incarcerated will have a far better chance of exoneration than under a system that indulges the socially worthless practice of allowing guilty petitioners to try their luck at freedom. Not only will deterring the guilty who falsely claim their innocence drastically reduce the expected waiting time for actually innocent prisoners seeking exoneration, but it will also free up considerable state resources and ultimately reduce the chances of test results falsely indicating guilt. To understand how our proposal works, consider the analogy of airline prices and different classes of service. Airlines deliberately make the conditions in coach class less favorable, sometimes even spending additional money to do so, because it allows them to maximize their profits from both business class and coach passengers.6 Not satisfied to simply differentiate between coach and business class passengers, airlines often make coach airfares more expensive for other conditions, such as if a passenger does not stay a Saturday night. This is often done not because the airlines care when passengers travel, but instead because imposing costs on passengers makes them self-identify as those who are willing to pay more and those who are willing to pay less. …