Jeff Sessions and the Odds of Imprisoning Innocents

The attorney general is standing athwart a long overdue movement to reform forensics yelling stop.

Lawrence Bryant / Reuters

The Washington Post reports that Attorney General Jeff Sessions “will end a Justice Department partnership with independent scientists to raise forensic science standards.” If that doesn’t scan as hugely important subject a bit of background is needed.

In 1989, when a wrongly imprisoned American was exonerated for the first time using DNA evidence, a new era began in the criminal justice system. Over ensuing decades,  DNA analysis would expose decades of shoddy police work, sloppy or unethical prosecutors, lying witnesses, and faulty forensic analysis as it freed innocents from living nightmares. The Innocence Project calculates that so far  DNA has exonerated 349 people, who unjustly served a combined total of 4,763 years behind bars––and that 46 percent of those cases involved a misapplication of forensic science.

There is no telling how many innocents languished in prison without being exonerated because physical evidence in their case was not preserved into the DNA era, or the perpetrator did not leave DNA at the crime scene, or the evidence was on their side, but they lost a procedural battle and with it the ability to present new evidence.

President Barack Obama recognized the scandal.

He convened a panel of scientific advisers to study the techniques used by law enforcement; to identify best practices; to see which methods were sound and which were junk science. The results were alarming for those worried about robbing innocents of liberty. Dubious methods were everywhere in analysis of bite marks, firearms, shoe prints, hair fiber, blood spatter, and fingerprints. There were even problems in efforts to analyze samples containing DNA from more than one person.

None of the problems surprised Radley Balko, who covers the criminal justice system for the Washington Post. Years earlier, in the course of reporting for Reason that helped to free a man wrongly incarcerated on Mississippi’s death row, Balko had stumbled on a so-called expert in bite-mark analysis whose scandalous conduct as a state medical examiner and expert witness over the course of two decades illustrated the astonishing degree of nonsense the state could pass off as “science” in criminal trials.

Subsequent reporting only confirmed Balko’s suspicion that the criminal justice system is rife with unqualified forensic specialists, bad methodology, and cognitive bias. His succinct description of long overdue reforms is here. When the panel convened by Obama published its scathing report in September 2016, Balko hoped a least some overdue reforms would finally be attempted.

But months later, when Obama was about to leave office, Balko wrote about his White House’s failure to move aggressively and the dissenting voices from within his Justice Department, including dismissive comments from then-Attorney General Loretta Lynch.

The upshot:

That report, along with others and an administration that seemed unusually equipped to take it seriously, presented a small window in which to reform a system. That window is about slam shut. And we’re about to be governed by a new administration that seems likely to board it up, wallpaper it and overlay it with brick. This wasn’t just a missed opportunity; it was a catastrophe. And it’s difficult to overstate the consequences.

Those prescient words bring us back to this week’s news. Again, here is the Washington Post:

In a statement Monday, Sessions said he would not renew the National Commission on Forensic Science, a roughly 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors and defense lawyers chartered by the Obama administration in 2013… The announcement came as the commission began its last, two-day meeting before its term ends April 23, and as some of its most far-reaching final recommendations remained hanging before the department.

Sessions, a former federal prosecutor, is bringing the matter back “in house,” though DOJ staffers have institutional incentives to avoid upsetting the status quo, and have utterly failed to sufficiently address the problem from within across decades of misconduct. The result is not only the imprisonment of the aforementioned innocents, but also uncaught criminals in those cases roaming the streets.

It is fitting that the new attorney general was appointed by Donald Trump, who once took out full page ads in four New York City newspapers urging the return of the death penalty for five black and Latino teenagers accused of raping a white woman in Central Park. The youths were convicted and imprisoned for 14 years. Later they were exonerated by DNA evidence and released. Trump still insists they’re guilty.

Lest you think it is unfair to tar Sessions with Trump’s execrable behavior, here is what our attorney general said on talk radio while campaigning for candidate Trump:

Republican Sen. Jeff Sessions, a prominent surrogate for Republican nominee Donald Trump, says Trump’s 1989 newspaper ads advocating the death penalty for five men of color accused of raping a jogger in Central Park show that he has always been a believer in law and order.

“That speech was great, and Trump has always been this way,” Sessions, who was the first member of Congress to endorse Trump, said on the Matt & Aunie show on WAPI radio. “He bought an ad — people say he wasn’t a conservative — but he bought an ad 20 years ago in the New York Times calling for the death penalty. How many people in New York, that liberal bastion, were willing to do something like that?”

For Sessions, that episode was a point in Trump’s favor!

Sessions will not be swayed by a letter written by members of the body he is disbanding.

But it is worth reading. “Historically, the community associated with forensic science was limited to criminal justice participants, sometimes at the expense of foundational science,” the advisers wrote. “Many forensic science disciplines have not fully benefitted from the resources and lessons gained by researchers in contributing fields.”

They went on:

The inclusion of an array of research scientists is necessary to further improve the foundation and practice of forensic science and to the justice system.

The representation of these fields has been one of the strengths of this Commission and has been critical to its success. Any forum for forensic science issues must include significant numbers of independent scientists and researchers. Forensic science as an academic discipline is very young, and we are committed to guiding and cultivating a  robust research culture.

We hope you will provide us with the opportunity  to  continue to  engage  in  this critical effort to strengthen forensic science and the criminal justice system.

Session will not provide that opportunity. Like Lynch before him, he and Trump are poised to dismiss overdue reforms and pursue a course that will result in even more innocents being needlessly imprisoned—and that will leave some perpetrators of serious crimes free because innocents were convicted in their place.

It is sometimes said that history will judge certain people harshly. If years pass before the decision to curtail these reforms is condemned, history will judge us harshly.