In an unsurprising development, Attorney General Jeff Sessions has declared a winner in the battle between science—that is, real science—and forensic science. Embracing forensic science, as he always has, Sessions has allowed a crucial body, the National Commission on Forensic Science (“NCFS”), to lapse (note that the hyperlink may no longer work after April 23rd). Rather than continuing to support that body’s effort to improve the quality and reliability of various forensic science practices to ensure scientifically valid evidence is used in our criminal justice system, Sessions has instead decided to put prosecutors back in the driver’s seat. According to a rosy if ambiguous press release, the Department of Justice will handle forensic science issues internally, and will shift emphasis from scrutinizing sketchy practices to drumming up more funds to keep the cogs of mass incarceration sufficiently greased. On cue, the National District Attorneys Association rejoiced.
Sessions’s decision presages serious backsliding. In the past seven years, a number of important reports have heightened awareness about the dire state of forensic science in our courtrooms. Last year, in the waning days of the Obama administration, we covered one of those reports:
This week, the President’s Council of Advisors on Science and Technology (“PCAST”) released a system-shaking report that explains how several fields of forensic analysis—including bite-mark analysis, hair comparisons, and shoeprint analysis—lack adequate scientific validation. Although many of these techniques have not been shown to be sufficiently reliable, they have been permitted to produce evidence in criminal cases across the country for many years. It is no wonder that D.C. Circuit Court of Appeals Judge Harry Edwards and Jennifer Mnookin, the dean of UCLA’s law school, wrote in the Washington Post that “[t]he report is a much-needed wake-up call to all who care about the integrity of the criminal-justice system.” Rather than waking up, however, the National District Attorneys Association (“NDAA”) is doubling down on the pseudo-science masquerading as forensic evidence. Given that district attorneys themselves widely evade accountability and face inadequate constraints on their power, perhaps it is no surprise that their representative organization is unwilling to stomach expert scrutiny of the evidence prosecutors introduce in criminal trials every day.
PCAST is no group of unqualified slouches, it is a prestigious body comprised of well-respected scientists from around the country. As Judge Edwards and Mnookin (senior advisors to the report) explain, “[w]hat is noteworthy about the new report is that it is written solely by eminent scientists who carefully assess forensic methods according to appropriate scientific standards.” Yet, in a press release issued shortly after a draft of the report was circulated before its official publication (and likely before most of the NDAA’s members even read it), the NDAA claimed that the report’s authors suffer from a “lack of qualifications” and asserted that the report’s conclusions are “scientifically irresponsible.” The basis for these harsh allegations? The mere fact that PCAST had the gall to call the prevailing system into question without deference to “settled law”.
While PCAST is not the NCFS, the NCFS stood as a partially independent body that was performing work desperately needed to reform the way in which the criminal justice system produces, admits, and analyzes scientific evidence. After Sessions’s announcement, the NDAA celebrated, and pulled from the exact same playbook it used after the PCAST report, undermining the Commission through false, empty attacks. It claimed “[t]he Commission lacked adequate representation from the state and local practitioner community, was dominated by the defense community, and failed to produce work products of significance for the forensic science community.” Erin Murphy, a respected professor at NYU’s School of Law and a leading scholar on forensic science, debunked these myths. On Twitter, she explained that the Commission was comprised in part of 13 forensic science representatives, seven law enforcement representatives (between police, prosecutors, and victims’ advocates), four judges, seven scientists, three academics, two defense attorneys, and one industry representative. Then, in an incisive New York Times op-ed, she emphasized that in two years the commission drafted 43 standards “that have changed forensic science, on the ground, for the better.”
Perhaps the most crushing aspect of the retrogressive path Sessions has cleared is that the Department of Justice has compromised the independence of investigations into forensic science. In her New York Times piece, Professor Murphy explains that there is a consensus about the root of the problem in the forensic science system: “[it] rests under the exclusive control of police and prosecutors, and its legitimacy and integrity have suffered as a result.” Supplying more evidence to support this point, the NDAA’s statement emphasized its agreement with Sessions that “the majority of forensic science in the field is conducted by state and local crime labs, and then used by state and local prosecutors in the courtroom. That reality must be a central focus as we advance forensic science in the field.” Professor Adam Shniderman was right when he wrote that “miscarriages of justice are likely to continue” until law enforcement opens up meaningful reform. Sessions has tabled that possibility.
Is anyone surprised that Sessions is scornful of efforts to make forensic science more accurate? Armchair speculation about a defendant’s guilt seems to satisfy him. According to Radley Balko at the Washington Post:
When witnesses noted that there was no scientific research to support the field of handwriting analysis, [then Senator] Sessions remarked, “Well, I’ve seen them testify and I’ve seen blow-ups of the handwriting, and it’s pretty impressive.” Who are you going to believe, a team of scientists, or Jeff Sessions’s sense of wonder?
Unfortunately, Sessions in 2017 has a great deal more power to set the agenda and impose his will.
What can we expect with the new approach the Department of Justice is taking? Professor Murphy warns of “what happens when prosecutors and police officers control forensic science, instead of scientists”: “wrongful conviction, tragic incompetence, laboratory scandal and absurdly unsupported forensic findings.” If this sounds like too weighty a prediction, consider the fact that Sessions has defended President Trump’s insistence that the Central Park Five—who were exonerated by DNA evidence—are guilty. To Sessions, pushing for the punishment of innocent men is just good old “law-and-order.” For leaders of our country’s government, forensic science is simply a tool to imprison more people. It need not be accurate. Indeed, when it is, it can be inconvenient.