"Bizarre and unjust" discrimination against military accuseds

In addition to being shortchanged when it comes to access to the Supreme Court, it turns out that military personnel also are treated worse than civilian federal and state criminal defendants with respect to post-conviction DNA testing. In Hubbard v. United States, No. 20-16094 (9th Cir. Aug. 10, 2021) (per curiam), the U.S. Court of Appeals held that the Innocence Protection Act of 2004 does not apply to persons convicted by courts-martial. A concurring opinion by Circuit Judge Michelle T. Friedland, in which the other two judges on the panel joined, stated:

          The IPA’s text creates the bizarre and unjust result that servicemembers convicted by courts-martial are less able to obtain DNA testing than other categories of prisoners, federal or state. See Kerry Abrams & Brandon L. Garrett, DNA and Distrust, 91 Notre Dame L. Rev. 757, 776 (2015) (“Today, all fifty states have enacted statutes providing access to DNA and post-conviction relief.”); Samuel R. Wiseman, Waiving Innocence, 96 Minn. L. Rev. 952, 954 (2012) (“DNA has provoked a small revolution in criminal procedure, causing almost every state legislature, as well as Congress, to rethink well-established notions . . . to allow for post-conviction testing and relief.” (footnotes omitted)). This disparity is entirely inconsistent with the respect usually given to veterans. I urge Congress to remedy this unfairness by amending the IPA to explicitly provide servicemembers convicted by courts-martial the same avenues for post-conviction DNA testing afforded to other prisoners.

Editor's Note: cc Senate and House Judiciary Committees