concurring in the denial of rehearing and rehearing en banc.
There is no doubt that Harvey should receive the biological evidence in this case for DNA testing using technology that was unavailable at the time his Virginia conviction became final. In fact, the panel opinion suggested that the state courts could order DNA testing. See Harvey v. Horan, 278 F.3d 370, 380 (4th Cir.2002) (stating that “state courts are free in ways that we are not to set the ground rules by which further collateral attacks on state convictions such as Harvey’s may be entertained”). And that is precisely what the state courts have now done. The question before us is thus not whether Harvey should or will receive the DNA evidence. He should and he will. Rather, the issue is whether a § 1983 action brought in federal court in the first instance is the appropriate vehicle for him to access that evidence.
I nonetheless confess myself puzzled over the discussion herein. The issues have been extensively addressed in the earlier majority and concurring opinions. No member of the court requested a poll on the suggestion for rehearing en banc, and my brother agrees “that a denial of rehearing en banc is now the proper disposition of this particular case.” Post at 326. However, inasmuch as my colleague has undertaken an extended discussion of his own, I tender this brief response.
*299I.
A.
The threshold question posed by Harvey’s § 1983 action relates to the nature of the constitutional right he asserts. There are two possibilities here, one procedural and the other substantive. The procedural right is the right to press and proclaim one’s innocence in a federal forum in the first instance when seeking access to DNA testing, even where the judgment to be challenged is a state conviction.
The American criminal justice system rightly sets the ascertainment of truth and the protection of innocence as its highest goals. The average school child is aware (or so we hope) that the accused is clothed with a presumption of innocence and that the prosecutor must prove beyond a reasonable doubt that a crime was committed. Moreover, the concern with innocence does not end at trial. Elaborate post-conviction procedures are rightly in place to ensure not only that a trial was fair, but also that no individual has been wrongly convicted.
Our system however does not allow any person to press a claim of innocence at any time, at any place, and in any manner. The assertion of innocence, just as the assertion of any right, is intertwined with orderly process. It matters, for example, that a Virginia prisoner has sought here to bypass Virginia’s system of criminal justice altogether, and proceed directly into federal court under § 1983. Such disregard of process is an anomaly in an area where criminal defendants, above all, rely on proper process to protect their rights. What Alexander Bickel termed “the morality of process” in the political system has application to criminal justice as well. Alexander M. Bickel, The Morality of Consent 123 (1975). Shorn of process, neither the innocent nor the public upon whom offenders prey will have any assurance of justice.
The panel opinion identifies the multiple procedural problems Harvey’s § 1983 claim faces. See Harvey, 278 F.3d at 374-80. Yet the separate opinion would throw each and every one of these considerations to the winds. As Harvey’s case shows, state courts, if given a chance, can rise to their responsibilities. Yet my good colleague would not only deny them that chance, but do so in unprecedented fashion, encouraging state prisoners to press their claims initially in federal court while disregarding all state court procedures and all state legislative avenues of redress.
This is not to say that the federal courts are uncharitable with respect to claims of innocence. For example, Rule 33 of the Federal Rules of Criminal Procedure authorizes motions for a new trial on the basis of newly discovered evidence. And the seminal case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), allows a state prisoner to press a claim of innocence in federal court on the ground that “the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt.” 443 U.S. at 321, 99 S.Ct. 2781. See also Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (stating that “ ‘actual innocence’ is not itself a constitutional claim,” but that it can serve as a “gateway” through which a habeas petitioner can “have his otherwise barred constitutional claim considered on the merits”).
It is important however that claims of innocence should be entertained, where possible, in the first instance by the court, or at least by the court system, that initially heard the case. Such a rule, ostensibly directed to considerations of venue or comity, actually serves a larger purpose. It *300recogniz'es in the underlying conviction not a conclusion of infallibility, but a presumption of legitimacy. That presumption would be lost if the court rendering the conviction could simply be disregarded and bypassed at will, which is what Harvey sought to do in fashioning his claim of innocence as a § 1983 suit. By design, judgments of conviction in criminal cases are not casually reached. .The efforts of jurors, judges, witnesses, prosecutors, and defense attorneys represent a considerable and conscientious effort at achieving justice — an effort which would be lost if the court or system rendering the judgment were entitled to no respect or even so much as acknowledgment thereafter.
B.
In addition to the procedural difficulties Harvey’s claim presents, this case poses the intractable problem of identifying the precise nature and scope of the substantive due process right that a federal court would have to bestow on Harvey in order for his § 1983 claim to proceed. Both the panel majority opinion and the concurrence recognized this. Harvey, 278 F.3d at 375-77, 380, 387-88 & n. 7. Indeed, the separate opinion acknowledges as well just how “formidable” the task of identifying the precise parameters of such a right would be. Post at 321. It accordingly declines to specify even the rough contours of the constitutional right of post-conviction access to DNA evidence that it divines. Post at 321. The separate opinion merely states, without explanation, that such a right would be “narrowly confine[d]” and governed by “strict and limiting” standards. Id. In the end, we are left to guess whether even Harvey himself would qualify for additional DNA testing under the separate opinion’s newly minted constitutional right of access to evidence. Post at 325.
We are kept in the dark about what such a right would actually look like not just because defining the scope of the right would be “imprudent.” Post at 321. It is no more imprudent to define a right one has declared to exist than it is to assert its existence to begin with. It is not imprudence that accounts for this silence, but rather the humbling reality that it may well be impossible for a judge-qua-judge to accomplish this feat. That is why this task is one appropriately left to legislatures.
A myriad of questions would have to be answered in order to define the parameters of a constitutional right to post-conviction access to DNA evidence. For instance, we would have to decide who could claim a right to DNA testing — in particular, whether such a right would apply to all prisoners or only those who committed certain crimes or who were serving some minimum prison term. Further, we would have to determine what threshold showing was required in order for a prisoner to receive post-conviction DNA testing. For example, does identity have to have been an issue at trial? What if the prisoner has pleaded guilty? In addition, we would have to decide to whom a request for post-conviction testing would be made and on the standard that the decision-maker would use in determining whether testing was appropriate. For example, must a prisoner show only that the untested evidence might possibly assist his claim of innocence, or that a reasonable probability exists that the outcome of his trial would have been different if the test results had been available? Or does some stricter standard apply? Moreover, we would have to determine whether there was a statute of limitations for bringing the request in the first place.
Next, we would have to work out details of the testing system itself. First, we would have to identify who would bear the *301costs of the DNA testing. Would it be the state or federal government, the prisoner, or only prisoners who can afford the testing? Would we wait to determine if DNA testing had proved wholly or arguably successful for the requesting prisoner before determining who bears the cost? And we would have to decide if a state laboratory would conduct the test or if a prisoner or judge could select a private lab. We would also have to specify whether counsel would be appointed for every indigent person seeking testing. In addition, we would have to determine how long DNA evidence would have to be preserved and decide whether preservation was automatic or conditioned upon motion from a prisoner. Further, we would have to establish who would evaluate the DNA test results and when a result was conclusive enough of innocence to warrant further relief. Finally, we would have to lay out the relief that could be granted. Is a new trial or a pardon more appropriate? And upon a favorable test result, could a prisoner bring a claim for monetary relief for a wrongful conviction?
Harvey would have the federal courts disregard the fact that both the Congress of the United States and the various state legislatures are presently wrestling with exactly these sorts of questions. Only the most aggressive view of federal judicial power could lead us to preempt both a coordinate branch of the federal government and the state courts and legislatures with what would in essence be prescriptive law making of our own.
Thus my brother asks that we take a big step. If we were to vindicate Harvey’s claim, it would have to be because, as the separate opinion appears to conclude, post at 48, there was some substantive due process right to the fruits of scientific discoveries made after a conviction had become final — here, the advances in DNA testing technology.
It is certainly true and a cause for celebration that DNA testing holds much promise. And there is no question that accused individuals and convicted inmates, as well as prosecutors, should reap the benefits of it. Indeed, many scientific advances promise substantial advantages. But this does not mean that we are free to constitutionalize a right of access to the fruits of scientific discoveries. There are often trade-offs to be faced when science advances. Scientific progress frequently presents questions of resource allocation, interpretation, application, privacy, and ethics. Balances must be struck between societal risks and benefits, between alternative ways of understanding and employing new techniques, and between permissible and impermissible uses.
The courts should not precipitously offer answers to these questions. The issue raised in Harvey’s case is one we will confront many times again: Should the courts through the conversation-stopping process of constitutionalization decide for society what uses will be made of scientific progress, or should we await the input of legislative bodies before weighing in ourselves? The case for legislative bodies retaining control of advances in science is powerful because scientific discoveries have the potential to affect society in ways that may be profoundly beneficial or profoundly harmful. As science marches forward in our courts, it is not remiss to respect the ability of the political process to address its many implications.
II.
I repeat my hope that inmates such as Harvey will receive DNA testing. And I repeat my faith that the American system will provide it to them. This is not an area in which legislative bodies have gone into *302permanent recess. On the contrary, the panel majority opinion detailed the fact that Congress is actively considering legislative initiatives in this area. See Harvey, 278 F.3d at 376-77, 380. The Innocence Protection Act, which has been introduced in both houses of Congress, would increase the availability of post-conviction DNA testing for an individual convicted of a federal crime. Further, the Act would condition the grant of federal funds for state DNA-related programs on an assurance that the state would make post-conviction DNA testing available in certain types of cases. See S. 486 §§ 101-104, 107th Cong. (2001), 147 Cong. Rec. S1999, 2001-03 (Mar. 7, 2001); H.R. 912 §§ 101-104,107th Cong. (2001).
Virginia has also passed legislation increasing the availability of post-conviction DNA testing, which Harvey himself successfully invoked in state court following oral argument in this case. See Harvey, 278 F.3d at 377, 380 n. 3. Virginia Code § 19.2-327.1 allows a convicted felon to apply to the state circuit court for DNA testing if, inter alia, the biological evidence was not subjected to the current DNA testing method and the testing is “materially relevant, noncumulative, and necessary and may prove the convicted person’s actual innocence.” Va.Code Ann. § 19.2-327.1 (Michie Supp. 2001). In addition, the Virginia statute details what a petitioner must set forth in his motion for post-conviction DNA testing, sets a timetable for the circuit court to hold a hearing on a prisoner’s motion, and structures the circuit court’s decision-making process on the petition. Id.
The federal government and the Commonwealth of Virginia are far from alone in this area. In 1994, New York was the first state to pass a statute addressing post-conviction DNA testing. Developments in the Law: Confronting the New Challenges of Scientific Evidence, 108 Harv. L. Rev. 1481, 1573 (1995). And legislatures across the country are currently considering and enacting initiatives. In 2001 alone, seventeen states passed laws “to provide convicted criminals with improved access to DNA testing.” Always an eye for an eye?, The Economist, Jan. 5, 2002, at 26-27. State legislatures have set detailed ground rules for these types of actions, answering the numerous questions discussed above that post-conviction DNA testing raises. The legislatures have spelled out not only the circumstances in which a motion for additional DNA testing can be made, but also where such motions must be brought. They also have identified the parameters that control whether additional testing will be made available, whether a decision to grant or deny testing is appealable, who must bear the cost of the testing, and what relief is available if the results are favorable to the petitioner. See, e.g., N.Y.Crim. Proc. Law § 440.30 (McKinney Supp. 2001); Fla. Stat. Ann. §§ 925.11, '943.3251 (West Supp. 2001); Cal.Penal Code § 1405 (West Supp. 2002).
The statutes reveal that there are many different approaches to resolving these issues. Within the Fourth Circuit alone, there is substantial variation in the approaches taken by Virginia, Maryland, and North Carolina, which have already enacted post-conviction DNA testing provisions. For example, the Virginia statute applies to people convicted of a felony, does not specify who pays for the DNA testing, and states that the testing will be performed by the Virginia Division of Forensic Science. See Va.Code Ann. § 19.2-327.1. In contrast, the Maryland statute applies only to people convicted of certain crimes, specifies that the petitioner shall pay the costs of the testing unless the results are favorable (in which case the state pays), and allows the judge reviewing the petition to select a laboratory for the testing from a *303list of accredited labs. See Md.Code Ann., Crina. Proc. § 8-201 (Michie 2001). In further contrast, the North Carolina statute applies to any criminal defendant, requires the defendant to pay the cost of the DNA testing unless he is indigent (in which case the state bears the cost), and does not indicate which lab 'will conduct the testing. See N.C. Gen.Stat. § ISA-269.
To constitutionalize this area, as the separate opinion would, in the face of all this legislative activity and variation is to evince nothing less than a loss of faith in democracy. It is to believe that democratic processes are incapable of rising to the challenge, and that federal courts must do the governing for us. In the end, this will deaden the lifeforee of democracy. It will cause legislatures across our nation to simply surrender the impulse to innovate based on the assumption that the federal courts are prepared to step in at any time. It will encourage elected officials to sit on their hands and turn over their responsibilities to federal judges. To be sure, the displacement of elected officials by judicial authority always pleases some of the people some of the time. But with activism, what goes around comes around. Today’s merriment becomes tomorrow’s mourning.
III.
To constitutionalize a right to post-conviction DNA testing in federal court in the first instance would have unfortunate consequences for our federalism as well. To recognize a § 1983 claim here, we would effectively have to overrule this court’s decision in Hamlin v. Warren, 664 F.2d 29 (4th Cir.1981), and the Supreme Court’s decision in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The lesson of Hamlin and Preiser is that the state courts should have the first chance to review challenges to a state judgment of conviction. But Harvey never presented his claim in the Virginia courts until after the panel had heard oral argument in this case.
This court in Hamlin recognized the reality of such a situation when we held that a prisoner’s § 1983 claim had to proceed under the habeas framework when the prisoner was seeking to establish “every predicate” for a subsequent request for release. 664 F.2d at 30, 32. We concluded that when a complaint “has all the earmarks of a deliberate attempt to subvert the [exhaustion] requirement of [28 U.S.C.] § 2254(b),” a petitioner must observe the habeas requirements, “notwithstanding the absence of any request for release.” Id. at 32.
This fundamental doctrine ensures that states will be given at least the initial chance to review their own judgments before a federal court jumps into the fray. As the Supreme Court emphasized in Preiser, the exhaustion requirement “is rooted in considerations of federal-state comity,” and it would “wholly frustrate explicit congressional intent” to allow state prisoners to evade the exhaustion requirement “by the simple expedient” of putting a § 1983 label on their pleadings. 411 U.S. at 489-92 & n. 10, 93 S.Ct. 1827.
The separate opinion contends that Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), “was actually a quite narrow decision,” and that Heck would allow Harvey’s claim to proceed under § 1983. Post at 308. However, the whole point of Heck was to keep a state prisoner from challenging his conviction in federal court in the first instance through an unexhausted habeas claim masquerading as a § 1983 claim. Indeed, the requirement that a state prisoner exhaust state remedies before challenging his conviction in federal court has such a basic place in Supreme Court jurisprudence that *304it hardly needs mentioning. See, e.g., Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (explaining that “[t]he exhaustion doctrine existed long before its codification by Congress in 1948”). It is inconceivable that Heck meant to displace this long line of Supreme Court precedent on the exhaustion requirement, or that it stands for the proposition that claims such as Harvey’s may proceed ab initio in federal court.
IV.
Harvey achieved the relief he sought through the state courts and the state legislatures. And our decision in his case respects the proper role of the federal courts within the federal system. The separate opinion does just the opposite. With little hesitation, my colleague disregards the roles of all the other actors in the American system. His approach overturns longstanding Supreme Court precedent, to which lower court judges and even the Justices themselves owe deference. His view makes the Congress of the United States a subordinate player on the very difficult questions involved in determining the entitlements of individuals to the fruits of scientific advances. His approach treats both state legislatures and state court systems as junior partners with respect to their own trials and judgments.
With all respect, there is a better way.