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Obama’s rhetoric on forensics is at odds with his record
highlights:
Obama’s rhetoric on forensics is at odds with his record
highlights:
On Wednesday, I wrote about how President Obama had missed a huge opportunity by not forcing the Justice Department and federal law enforcement agencies to implement the forensics reform recommendations put forth by the President’s Council of Advisors on Science and Technology.
Coincidentally, just this morning the Harvard Law Review published an article on criminal-justice reform authored by Obama himself. Forensics gets only five paragraphs of a very long piece. But it’s still worth examining. Obama touts what he claims to be a number of success within his administration toward advancing better and more science-driven forensics.
My Administration has supported a wide range of research and policy initiatives to strengthen the forensic sciences, spanning disciplines from DNA analysis and fingerprints, to tire and tread marks, ballistics, handwriting, trace-evidence and toxicological analyses, and digital evidence. In 2013, DOJ and the Commerce Department’s National Institute of Standards and Technology (NIST) established the first-ever National Commission on Forensic Science, a federal advisory committee to provide recommendations on how to strengthen the validity and reliability of the forensic sciences. In response to recommendations from the Commission, DOJ announced several actions it will take to improve its policies, including requiring the Department’s forensic labs to obtain and maintain accreditation and requiring all Department prosecutors to use accredited labs to process forensic evidence when practicable within the next five years.
As I noted here at The Watch at the time, that phrase “when practicable” is significant. It gives federal prosecutors an out to use a non-accredited lab when an accredited one would be too much trouble. The loophole was criticized by several members of the NIST commission.
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All of these things are well and good. But as I pointed out Wednesday, Obama could create a dozen more blue ribbon commissions to study forensics and come up with another 10 dozen best practices recommendations. All of that means nothing if Obama won’t require the federal law enforcement agencies he oversees to actually implement those recommendations. And he hasn’t. Attorney General Loretta Lynch flatly dismissed the PCAST recommendations Obama takes credit for commissioning in the first place. And Obama did nothing to refute her. The reports from PCAST, NIST and the National Academy of Sciences all gave us a clearer, well-documented view of the crisis in forensics. That was important. But it’s all useless if none of it results in any substantive policy changes.
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It’s swell that the FBI finally conceded that its hair analysts have been tainting thousands of criminal cases for two decades. It’s swell that the FBI finally conceded the same thing about Compositional Bullet Lead Analysis. And “voiceprint” analysis. And that the Bureau of Alcohol, Tobacco, Firearms and Explosives finally admitted that after who knows how many convictions, much of the arson “science” touted by its agents and taught to local fire investigators across the country was based largely on superstition and folklore. But so long as the DOJ continues to defer to the needs of prosecutors and law enforcement officials over the recommendations of scientists, there will be a parade of new junk science disciplines to replace the old ones. As a former president of the nation’s largest forensics organization once put it, “There is literally no end to the number of disciplines that become ‘forensic’ by definition. Nor is there an end in sight to the number of present or future specialties that may become forensic. The examples are many.”
The difference is, these new disciplines won’t be utilized by prosecutors in cases where DNA is dispositive of guilt. With the DNA evidence, they won’t need to be. But that also means that we won’t have DNA testing to expose those disciplines as fraudulent.
I’ll concede that I’m not familiar with the apparently new DOJ “Forensic Science Discipline Review” that Obama touts in his article. But given that Lynch flat-out rejected the recommendations in the PCAST report — a report authored by a team of well-regarded researchers from across the sciences, published by Obama’s own council of science and technology advisers — it’s hard to have much confidence that this new entity, whatever it is, will insist that DOJ only utilize forensic disciplines backed by scientific research. Or, if it does, that it will have the will or the authority to implement those policies across the Justice Department, even if federal prosecutors or U.S. attorneys object.
Obama can tout the committees he formed and the reports he commissioned all he likes. When it came to using those reports to actually improve the criminal-justice system, his own attorney general rejected the notion out of hand. Obama then failed to correct her. As I wrote Wednesday, the window for reform here is small. Obama had the evidence to demand it. He’s a lame-duck president in an era where the public is as skeptical of the criminal-justice system as it’s been in generations. It was a golden opportunity. We just happened to have someone in the White House who, at least in his rhetoric, seemed to understand these issues as well as anyone we could really ever hope for — and at a time when the conditions for reform are as favorable as they’re ever likely to be. And yet Obama too eschewed the scientists and deferred to law enforcement. When it mattered, he dropped the ball. And that will be as much of his criminal-justice legacy as his commutations, his panels, his talk of justice and equality, or his law review articles.