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19 June 2009 8:45 AM

Q&As

Interview with Radley Balko Part V

Radley Balko has laid out his views on the criminal justice system in parts one, two, three and four of our interview.

All that remains is part five.


Q. Having run through a fair number of problems, let's turn our attention to solutions. What are your top 5 ideas for reforming the criminal justice system? What are the most significant obstacles preventing them?

1. Changing the federal government's role in the criminal justice system.

The federal government has a legitimate function in investigating and prosecuting some crimes, such as crimes related to national security. But we've federalized far too many crimes, and federal crimes like racketeering, conspiracy, and money laundering have been interpreted far too broadly. The Constitution lays out three federal crimes. We now have thousands. Federal crime-fighting grants like the Byrne Grant also distort the priorities of local police departments, incentivizing them to expend more resources on consensual drug crimes than violent crime. Since the late 1980s, the feds have also been giving local police departments surplus military equipment, which has reinforced the problem of creeping militarization.

On the other hand, the Department of Justice needs to get more involved in enforcing civil rights and investigating corruption and abuse in the criminal justice system at the state and local level.

2. Ensure that scientific evidence in the courtroom is actually scientific.

The forensic science community needs more peer review. Crime lab technicians and forensic scientists should be independent of the prosecutors who hire them, to prevent unintentional bias--they should report to someone other than a DA or state attorney general. Ideally, forensic analysis would be sent to multiple private labs. Occasionally, evidence would be sent to multiple labs for double-checking. Right now, there's too much pressure--subtle and overt--on state crime labs to produce results favorable to prosecutors. Using several private labs would put the incentive back on accuracy. Technicians would be rewarded for getting things right and for catching other labs' mistakes, not necessarily for confirming or bolstering the state's case.

Farleigh Dickinson University economist Roger Koppl has some other innovative suggestions (PDF) on how we can improve the quality of the science used in the courtroom.

3. Community policing.

Community policing is a broad term generally meaning an approach to law enforcement that's proactive instead of reactive.

Cops walk beats, and become more of a part of the communities they serve. It focuses more on prevention than confrontation and aggression. If you're a fan of The Wire, think Lt. Carver in season four as the good example. Think of Officer Herc as what we want to avoid.

That said, it needs to happen at the local level. The federal COPS program started by President Clinton was problematic because police department budgets are fungible, and it's hard to monitor what happens to a federal grant once it leaves Washington. For example, in 2001 the Madison Times found that many police departments in Wisconsin were using COPS grants to form SWAT teams. That's pretty much the opposite of what community policing is all about.

4. More liability for police and prosecutors who misbehave.

Currently, it's very difficult to sue a police officer who violates your civil rights. The doctrine of qualified immunity sets the bar way too high, particularly given the power and authority with which cops are entrusted.

And it's basically impossible to sue a prosecutor. The Supreme Court has ruled that even if a prosecutor intentionally withholds exculpatory evidence that results in a wrongful conviction, the defendant can't sue. Prosecutors have almost complete immunity. There are allegedly professional sanctions for misconduct, but that's pretty rare.

This isn't to say all or even most cops and prosecutors are corrupt or vindictive or evil. It is to say that we know that human beings are fallible. And we know the corruptive effects of power. Yet we've created a criminal justice system that puts enormous pressure on police and prosecutors to rack up arrest and conviction statistics, but that provides very little or no accountability when they overstep their authority.

5. End the drug war.

At least at the federal level. The war on drugs the single most destructive domestic government policy in American history.

The biggest obstacle to these or any sensible criminal justice reform is political will. The people victimized by the criminal justice system tend to be the more vulnerable and powerless. So little real pressure for reform. The Duke Lacrosse case was an excellent example of the exception that proves the rule. Here you had three white, wealthy, sympathetic guys who were very clearly wronged by the criminal justice system. When their innocence became clear, there was widespread anger and outrage. Not only were the charges dropped, but the players were officially declared innocent, won settlements, and prosecutor Mike Nifong was actually criminally charged.

Contrast that to the vast majority of the DNA exonerations over the years. The Innocence Project estimates that about half of them involved some sort of prosecutorial misconduct. In some cases, wrongly convicted people can't even get compensated for the time they served in prison. The prosecutors who put them prison are rarely sanctioned. And even in the face of the 300+ exonerations, states like California and Texas still can't even pass basic, sensible criminal justice reforms, such as changing how witness lineups are conducted to make eyewitness testimony less prone to error.

The right is too wed to its traditional law and order traditions to support reform, and the left is bound by its traditional support from police unions and the fear of appearing soft on crime. Witness Vice President Biden just recently, when he told law enforcement organizations that Obama Supreme Court nominee Sonia Sotomayor "has your back," a remarkably stupid thing (though probably true) to say about a potential Supreme Court justice whose primary responsibility is to ensure that the government isn't violating our constitutional rights. And this came from the mouth of the number two man in the party that has traditionally been more willing to support the rights of the accused.

That says quite a bit about how far we are from any real reform.

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Comments (1)

Hah, I like the mention of The Wire. I think a good start to implementing the changes Radley discusses above would be to sit every single government employee down in front of the TV and show them all 5 seasons, Clockwork Orange-style. Just kidding...sort of.

So often, proposals like this are seen as antagonistic toward police officers; as some sort of broad accusation that "all cops are bad". In reality, these sorts of measures would go a long way toward letting police officers do real police work instead of waging a war against the folks they are charged with protecting. If we can assume law enforcement defenders are right when they say this is a problem of a "few bad apples", then the overwhelming majority of officers should embrace ideas that identify and remove those bad apples so that the good officers can do their jobs.

The drug war, of course, is the Big One. It is that declaration, and the ensuing evolution of ideology and tactics, that has poisoned our criminal justice system to the point of emergency.

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