Five questions for Radley Balko
DIA: You've written about the creeping militarisation of law enforcement in America. How has this trend manifested itself and what are the consequences for the quality of policing?
Mr Balko: The most obvious way it has manifested itself is in the explosion in the use of SWAT teams and similar paramilitary police units over the last 25 years. The criminologist Peter Kraska has surveyed their use over that time. He's found that the total number of SWAT-team deployments in the 1970s was a few hundred times per year, over the entire country. By the 1980s, it was a few thousand times per year. And by around 2005, Mr Kraska estimates around 50,000 times per year. The surge has been driven entirely by the drug war, with the vast majority of SWAT deployments being used to serve drug-related search warrants.
This has led to a militaristic mindset among America's police departments, beyond just SWAT teams. Driven by "war on crime" and "war on drugs" rhetoric set by political leaders, police officers have increasingly taken on the psyche of soldiers. There's a pervasive and troubling "us versus them" attitude in policing today. Policing has become more reactionary, more aggressive, and it's poisoning the relationship between the police and the communities they serve.
I should add that I don't think police officers themselves are to blame for this, nor, obviously, are all police officers guilty of it. These are problems spawned by 35 years or so of bad policies set by politicians. That's really where any reform would need to start.
DIA: Another criminal justice issue you often deal with is the use of forensic evidence. How is forensic evidence being abused in the courtroom, and what can be done to improve the way we use science in criminal proceedings?
Mr Balko: The main problem with forensic evidence is that it isn't science but it's usually presented to juries as if it were. Forensic evidence—think fingerprint matching, hair and fiber analysis, ballistics, etc—has been largely invented by and developed by police and police organisations. But when its presented in court, it's often presented with the gloss of science. It's telling that the one type of forensic evidence that actually was developed in the scientific community—DNA testing—is really the only type that's relatively certain (provided the evidence is handled properly). And it's showing us just how flawed and overstated other areas of forensics really are.
The other problem is that science is a process. It's sort of a journey toward truth. The criminal-justice system isn't shy about embracing new theories during criminal trials, but once the trial is over, the system puts a premium on finality. The courts set the bar very high when it comes to overturning convictions won in part or in whole based on science we now know is junk. Bite-mark analysis is a great example. Lots of people were sent to prison in the 1990s thanks to a small cadre of self-proclaimed bite-mark specialists. We now know there's simply no scientific support for the idea that you can match bite marks in skin to one person's teeth, especially to the exclusion of everyone else. Another good example is recovered memory psychoanalysis, which was responsible for dozens of wrongful convictions in the 1980s.
As for reform, I think we need to subject forensic evidence to the scientific method, at least to the extent that it's possible. The work of crime lab technicians and medical examiners should be tested from time to time by private labs, but without letting them know when they're being tested. Expert witnesses should be subject to statistical analysis, blind tests, and competency tests. If a medical examiner is diagnosing a disproportionately high percentage of infant deaths as homicides, for example, that would be a red flag for further investigation. Judges need to familiarise themselves with the appropriate accrediting organisations in the various forensic fields so they don't allow frauds and charlatans rubber-stamped by disreputable certification mills to testify in their courtrooms. Roger Koppl of Fairleigh-Dickinson University wrote a terrific paper for the Reason Foundation (which publishes the magazine I work for) with some other good ideas for reforming the forensics system.
DIA: Beyond the two discussed above, what are the most critical flaws in America's criminal justice system?
Mr Balko: Incentives. At every step in the process, the incentive is toward putting people in jail. And there's almost no penalty at all for state actors who overstep their authority. Police departments, for example, get federal anti-drug grants based in large part on how many people they arrest on drug charges. After the botched drug raid in Atlanta a few years ago in which a raiding police team shot and killed an innocent 92-year-old woman, we learned in subsequent investigations that officers had monthly quotas for drug arrests and drug seizures. Ed Burns, the former Baltimore cop and co-creator of the magnificent HBO show "The Wire", talks about this quite a bit.
It's also true of forensics. If a crime-lab technician reports to the local DA, there's always going to be some pressure—subtle or overt—to tell the prosecutor what he wants to hear.
But the incentive problems are most apparent with prosecutors. Prosecutors get no credit for cases they decide not to bring, either because of a lack of evidence or because pressing charges wouldn't be in the interest of justice. They're only rewarded for winning convictions. That's what gets them promoted, or re-elected, or gives them the elevated profile to run for higher office. Every incentive points toward winning convictions. And particularly with prosecutors, there's really no penalty at all for going too far to get a guilty verdict. One real disservice the Duke lacrosse case did for the criminal-justice system is it put in the public consciousness the idea that bad actors like Mike Nifong are regularly disciplined for misconduct. In truth, that case was really exceptional.
There have been a few prosecutorial misconduct cases before the Supreme Court over the last few years, and what's really striking when you read through the briefs is just how rarely prosecutors are sanctioned in any way, even for egregious misconduct. Not by courts, not by bar associations, not by state attorneys general. The Innocence Project estimates that prosecutorial misconduct factored into about a fourth of the wrongful convictions that organisation has helped expose. None of the prosecutors in those cases faced any serious sanction. It's impossible to sue a prosecutor, even if he intentionally withholds exculpatory evidence that sends an innocent person to prison. The Supreme Court will rule this spring if prosecutors who manufacture evidence that sends an innocent person to prison can be sued. I think a lot of people would be rather shocked to hear that such a notion would even be open to debate.
Most prosecutors are well-intentioned, honest public servants. But it's deeply troubling that those who aren't are almost never held accountable, and in fact are often re-elected, appointed as judges, or go on to get elected to political office.
Dec 1st
Thom talks to Max Blumenthal, author of...
Thom Hartmann: Great to have you here with us. One of the, Republican Gomorrah, I mean, it really, as in Sodom and Gomorrah, it really is Gomorrah, one of the most amazing stories for me in your book was how the Republican Party reached out to a, a serial killer, an actual serial killer, a man who murdered over 30 women, it’s estimated, and moved him up through the Party. Tell the story.
Max Blumenthal: It’s possibly 130 women.
Thom Hartmann: Seriously?
Max Blumenthal: The Republican Party didn’t actually, we’re talking about Ted Bundy, the worst serial killer in American history. The Republican Party didn’t really reach out to Ted Bundy. Before he was a serial killer he was a top Republican operative in the Washington State Republican Party, he was the personal driver to Republican governor Dan Evans. He was a moderate. And he wore disguises to slip into his opponents’ rallies and take film of his opponent that wound up devastating Alberto Rosellini for Dan Evans’ campaigns, and he wore those same disguises to kill women. And what happened was where Bundy comes into my book, “Republican Gomorrah”, is when he’s on death row, he’s converted by James Dobson into a poster child for the anti-pornography movement and the born again Christian and he gives Dobson this exclusive interview, on death row, that none of the other media could get, which vaulted Dobson into the national conscience and introduced him to the American public.
Thom Hartmann: So, senior Republican operative, Ted Bundy, becomes a serial killer, and once he becomes a serial killer, James Dobson visits him in prison, does this special interview. And Dobson was then, if I read this right in your book, Dobson was actually making money, over a million bucks, the interview became Dobson’s cash cow, you write; selling the Bundy tapes reaped a windfall profit of nearly a million bucks, and that Dobson initially stuck it in his own pocket.
Max Blumenthal: Right. And so Dobson, you know, controversy ensued. Dobson got in trouble for this because he’s exploiting a serial killer’s last confession, which was a false and baseless confession, that images from Playboy Magazine fueled his killing spree.
Thom Hartmann: Right, when in fact he was a sociopathic mass murder.
Max Blumenthal: Who was abused as a child as Dobson was. Abused according to many of the techniques Dobson advocated in his book “Dare to Discipline.” Um and so Dobson donated that million dollars to what he called charities which were actually anti-abortion groups affiliated with his political empire. But through Bundy Dobson became a national figure and he moved on to converting members of the Republican congress using the same techniques he used to convert Bundy and exploit Bundy’s confession for political gain.
Nov 11th