Fourteen states have laws providing that only those still serving prison time are eligible for post-conviction DNA testing of evidence in their cases. Advocates are trying to change these laws, reports the Marshall Project, arguing that the consequences of a wrongful conviction continue long after a prisoner is set free. Last month, Montana enacted a law extending DNA testing to those already released. Legislators in New Jersey, Rhode Island, and Oregon are considering similar measures.
In states with “incarceration requirements,” it is not impossible for someone already released to get DNA testing, but it is far more difficult. Prosecutors can choose to grant tests; but they can also refuse on the grounds that an already freed offender is ineligible. In many states, defendants must pay for DNA testing unless they are indigent. About 42 percent of the post-conviction DNA tests requested by the Innocence Project confirmed guilt, 43 percent proved the defendant's innocence, and 15 percent were inconclusive.