Points from Simon Cole’s article

Simon Cole was warded the 2003 Rachel Carson Prize by the Society for Social Studies of Science. He is a member of the American Judicature Society Commission on Forensic Science and Public Policy.

 

There are two basic positions regarding the impact of technological innovation on inequality in the justice system:

1) New technologies will always be harnessed in ways to benefit the powerful and wealthy – DNA technology is an enhanced means of social control.

2) Some technologies have the power to level the playing field such as when DNA exonerates convicts or suspects who are at risk of becoming convicts.

 

The criminal DNA technological systems of today were built by large governments in an environment of heightened anxiety about crime, maybe an atmosphere where they “govern through crime.” (Who would do that? Imagine the possibilities or just read about them in today’s headlines!) Criminal DNA technological systems might have been built differently by other actors, or by the same actors in different circumstances, but today, they have not been.

 

There is no denying the history of inequality in American criminal justice system at every stage of the process, from police investigation through criminal sentencing.

 

Even if the cause of minority overrepresentation in the U.S. criminal justice system were due only to larger rates of offending, not discrimination, what is the reason for this? My opinion – it boils down to U.S. history of racial abuses.

 

Under the current regime of mass incarceration, these consequences have been devastation in poor and minority communities. Some scholars see the prison system as essentially the contemporary equivalent of America’s historic institutions: racial control, slavery and Jim Crowism.

 

Inequality generates more crime in many ways – crime and its consequences exacerbate not only the crime problem itself, but other forms of inequality: economic, social, political.

 

The litigation process is inherently unequal. The principle of adversarialism, especially in the context of a ruthlessly capitalist economy, creates a system in which inequality of resources among litigants is inevitable and tolerated. In America, “it’s better to be guilty and rich than innocent and poor.”

 

U.S. law is so complex that it is impossible to prosecute or defend a court case competently without formal legal training. Modem legal proceedings are virtually impenetrable to those uninitiated to the guild. The legal system has been slow to respond to this situation.

 

How much quality of legal representation is a criminal defendant constitutionally entitled to? ‘How much justice can you afford?’ The Supreme Court, in Strickland v. Vashington (1984) gave a minimalist answer: Criminal defendants are entitled to “competent” counsel with an extremely restrictive definition of “incompetence.”

 

Remember Joe Frank Cannon, the famous ‘sleeping lawyer’ who tried a death penalty case in Texas? Well, the Fifth Circuit panel’s legalistic ruling was that it couldn’t know if the defendant’s representation was ‘incompetent’ because the record was not specific as to the counsel’s precise periods of sleep, so the court didn’t know if the attorney had missed crucial episodes of the trial.

 

Inadequate counsel is the cause of many problems: Legal errors at trial, misuse of forensic evidence, and poorly investigated cases – “the death sentence is not for the worst crime, but for the worst lawyer.”

 

Slight inequalities in police investigation and in litigation reverberate through the criminal justice system to produce gross inequalities in sentencing and punishment.

 

How about this slight inequality? My son’s murder investigation was not even investigated for 7-8 months because the detective was ‘too busy’. He kept this little secret from me by saying he could not discuss the case with me (the mother) as it could damage the investigation. He said if nothing turned up after 6 months, he would talk with me. After 6 months, I requested to finally know the facts of the case. He held me off other month or two due to “training” and then he had to edit the file by blacking out the names of two witnesses who found my son’s body 12 hours after the crime. When I showed up to see the file, heard all sorts of prejudices come out of that detective’s mouth. My son was 18 years old, half-black, and thought he might be gay. The victim-rights advocate with me told me later her mouth had dropped open. Soon that detective was removed from the case. But it was too late – it was now a cold case – and has never been solved.

 

We had gone to see the detective a week after the crime, but he was too busy to see us. His supervisor chastised us, the parents of the victim, for taking their time from investigations to ask what happened to our son. And this from a police department I had previously worked for almost six years, though the detective probably did not know that at the time. Eight years later the case still has no resolution. No suspects. We are still hanging in the initial stages of grief. We have no one to be angry with except the system that let us down.

 

American law has sometimes explicitly embodied racial inequalities. Example: ante-bellum laws mandating harsher penalties for blacks. Today inequalities are less explicit. Sometimes racial inequalities are encoded. Example: harsher punishments mandated for possession or sale of equal quantities of ‘crack’ vs. ‘powder’ cocaine.

 

Western (2006) demonstrates how penal inequality exacerbates socio-economic inequality,

which in turn exacerbates penal inequality, which exacerbates socio-economic inequality, …

 

Peterson (2006) says there is insufficient justice as to how racial inequality acts as a structural force to generate inequalities in the criminal justice system.

 

If defenders of the unjust system can invoke uncertainty concerning the factual truth of a case proven false by the results of DNA testing, they can continue to hamper the critics’ of the criminal justice system by delaying reform.

 

The parade of Innocents  – those whose ‘actual innocence’ is proven by the authority of science – out of the nation’s prisons over the last 15 years has shaken faith in the criminal justice system. Neufeld and Scheck insist on treating post-conviction DNA exonerations as an “audit” exposing the failings of the criminal justice system inequity likes ineffective assistance counsel, and unequal access to forensic expertise.

 

The exonerees are usually people who would have rotted away in prison or executed by the state if not for exoneration for crimes the did not commit. They are individuals whose lives society was willing to throw away, but in retrospect appears to have been a mistake. They are “expendable”.

 

It is not an exaggeration to say forensic DNA technology has the potential to wreak revolutionary changes in the criminal justice systems of the U.S. and the world.

 

It is a development of information technology, not forensic science, that computerized databases are rendering DNA and fingerprint databases far more useful.  DNA technology has enormous potential, but it is vastly underutilized by law-enforcement agencies.

 

Two view regarding DNA evidence: 1) Experience shows good old-fashioned detective work to be so imbued with inequality – with unfairness to minorities and the poor – that victims of inequality would do better with forensic technology. Forensic technology can be abused and misinterpreted. But it has objectivity that makes it less vulnerable to abuse than traditional police investigative methods. The disenfranchised can benefit from the increased non-corrupted use of science in criminal investigation. 2) A second view is that forensic DNA profiling is a powerful crime-control technique in hands of a law-enforcement system that targets minorities, the poor, and inner-city neighborhoods, and will only increase existing inequalities. DNA profiling may identify the criminal, has little influence over which crimes are investigated, none over which prosecutions are pursued more vigorously, or who is sentenced more harshly. Tactics such as ‘DNA dragnets’ or ‘sweeps,’ suspicion-less searches where residents of certain neighborhood are asked to ‘volunteer’ DNA samples retained by law enforcement – may fall mostly on minorities, the poor, and others with less confidence to resist state authority.

 

We should be careful about stereotyping the disenfranchised as suspects. The predominant role of the disenfranchised in the criminal justice system is as victims, not as suspects. If racial inequality in the American criminal justice system is caused more by indifference and under-enforcement of crimes involving victims of color than by over-enforcement or railroading of suspects of color, then forensic DNA profiling might be ‘good for the disenfranchised’ because it will mean more justice for victims.

 

In the Duke lacrosse case, the colors are inverted. The rape accusation was leveled by a working class African-American woman against privileged white male defendants. Americans, and the state, took her side at first, but now the case has crumbled. District Attorney Michael Nifong dropped the rape charges, but retained kidnapping charges (which do not require evidence of penetration). Nifong has removed himself from the case because his conduct is under investigation by the state attorney general. One accusation out of many is that the prosecution team conspired with the private laboratory that performed the DNA testing to conceal exculpatory results from the defense. This raises the question of whether this sort of thing happens all the time, but is only discovered by well-resourced defendants.