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The Massachusetts Lab Scandals: Confronting the New Normal of Mass Error in Criminal Justice

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Senior Airman Ashlin Federick

The Massachusetts Lab Scandals: Confronting the New Normal of Mass Error in Criminal Justice

Last month, Massachusetts criminal defense lawyers filed suit seeking an extraordinary measure of relief: dismissal en masse of thousands of drug convictions, with prejudice — meaning that prosecutors would forever be barred from retrying the defendants. The circumstances giving rise to the request were, at first glance, equally extraordinary.

First, there was the revelation in 2013 that Massachusetts state crime lab chemist Sonja Farak had been arrested and charged with using the drugs she was supposed to be testing, and tampering with evidence. A year later Farak pled guilty to charges that stemmed from four incidents isolated to a six-month period. Meanwhile, as defendants sought relief from their convictions by arguing that Farak’s misconduct might have tainted their cases, prosecutors successfully opposed relief in many cases by arguing that the misdeeds were isolated and limited to the time period reflected in the criminal convictions.

But, at least if a June decision from Massachusetts Superior Court Judge Carey is to be believed, the state Attorney General’s office actually had evidence that Farak’s misconduct had gone on for much longer — at least a year and a half. Yet it had not conducted any investigation into whether a larger batch of cases might be affected, and did not disclose that favorable evidence to defendants whose cases might have been affected or to the judges before whom the office argued that the wrongdoing was isolated. When the concealed information finally became public, Massachusetts courts directed the Attorney General’s office to investigate further. The ensuing investigation revealed (in 2016, three years after Farak’s arrest) that the chemist’s misconduct began as early as 2005, when she began stealing methamphetamine and other narcotics from the lab for personal consumption and using them at work. Since 2009 she had engaged in evidence tampering to support her habit or conceal her theft, and by 2012 Farak was cooking crack at work and smoking it ten to twelve times per day.

And yet, according to the defense lawyers’ petition, as of today there has been no systematic notification of the estimate 18,000 defendants who were convicted on the basis of Farak’s analysis, to let them know that their convictions might be flawed. Meanwhile, Judge Carey’s decision called the Attorney General’s conduct in concealing evidence of the scope of Farak’s misconduct a “fraud on the court,” and took the unusual step of naming the names of two specific prosecutors responsible, in the court’s view, for “reprehensible . . . calculated misrepresentations” with “systemic” “ramifications” for defendants who were wrongfully convicted. Because of the combination of more than four years’ delay in providing information to affected defendants, plus the alleged concealment by prosecutors, defense lawyers are asking a Massachusetts court for what all agree is a “remedy of last resort”: punish the Commonwealth by dismissing every case and baring prosecutors from retrying the defendants, in order to deter these missteps in the future.

It is tempting in the Farak saga to focus on the egregious facts that have led to this most recent request. The Washington Post and other media outlets have appropriately taken interest in the seeming perfect storm of law enforcement and prosecutorial misconduct. But to concentrate on the case’s exceptional features misses the myriad ways in which what has transpired is par for the course in our criminal justice system. I want to suggest that the Farak case teaches three interrelated and lessons about the quite ordinary operation of our criminal justice system.

1. This will happen again. The Farak case is in fact the second instance of state-wide laboratory error that Massachusetts has dealt with in the last five years. The first, caused by state chemist Annie Dookhan’s admitted career in falsifying lab results (consistently in the Commonwealth’s favor), spawned its own body of court decisions sorting out, among other things, prosecutors’ obligations to notify defendants of potential errors in their cases, and establishing a protocol for handling the challenging mechanics of identifying, locating, providing information to, and vetting the claims of the thousands of affected defendants. Indeed, after years of litigation over how the system would handle the burden of sorting out which convictions were good and which were bad, the Commonwealth ultimately acceded to the dismissal of more than twenty thousand (yes, twenty thousand) drug convictions — a measure that, at least at the time, was unprecedented.

One would think that the Dookhan saga would have greased the wheels for engineering a solution to the Farak scandal. That it did not does not inspire confidence in how Massachusetts will fare in the next revelation of mass error — by which I mean information that systematically undermines the integrity of a substantial number of criminal adjudications. And there will be one. Last week’s petition references the possibility of evidence mishandling and Breathalyzer error scandals on the horizon. But the broader point is that the risk of mass error — from one detective with a practice of witness tampering, or one DNA technique that becomes discredited, or one forensic analyst who goes off the rails — is endemic.

2. Ordinary system pressures prevent us from handling these scandals well. Judge Carey’s opinion recounts, in part, an enormous derogation of the prosecutor’s oft-repeated obligation “to see that justice is done.” Without diminishing the egregiousness of the misconduct that Judge Carey’s opinion describes — long-term, concerted, knowing suppression of evidence from defendants and from the courts — it is important to push back against a “bad apple” narrative. Many prosecutors — including well-intentioned ones — are subject to temptation to be less than ambitious in uncovering and disclosing past errors; consider as just one example the Washington Post’s revelation in 2012 that federal prosecutors had known for years of flaws in bullet lead analysis testimony, but had not shared the information with defendants. The hortatory and ephemeral commandment to pursue justice is under terrific pressure when due diligence by a prosecutor would mean saddling herself and her colleagues the massive workload of relitigating or confessing error in thousands of convictions. The pressure is compounded by the fact that prosecutors’ ethical obligations concerning post-conviction evidence of innocence remain hazy, and that the institutional mechanisms by which such evidence should be communicated are ill-formed. All that is to say, there is every reason to think that some variation on the types of delays and failures of notification seen in the Farak case could happen in any number of jurisdictions — especially absent efforts to clarify and enforce legal and ethical obligations, and to develop procedures for carrying out those obligations.

3. Ad hoc approaches to mass error should give way to deliberate and institutionalized responses. Stakeholders in Massachusetts have made a tremendous effort in attempting to respond to these recent shocks to the criminal justice system. The state public defender organization has dedicated a specialized team of lawyers to the task, and prosecutors have made important efforts to attempt to unwind the tangles created by Farak and Dookhan. The judiciary, in particular, has been responsive, relatively nimble, and at some turns quite bold in exercising what it calls its “general superintendence powers” both to articulate the legal duties of prosecutors and rights of defendants, and to give concrete direction to stakeholders as to how to execute those duties. But the consequence of relying on the courts to incrementally articulate duties and fashion bespoke processes has likely been a relatively protracted and adversarial process in an instance where due speed and collaboration are called for.

There is likely no one-size-fits-all solution to the problem, but institutionalizing responsibility for the task of managing mass error is almost certainly preferable to ad hoc responses. Texas’s experience in the past decade with the Texas Forensic Science Commission provides one promising contrasting approach. A state commission charged with investigating forensic error and developing professionalism in the forensic science field, the TFSC has served as the organizing hub for several mass error responses in Texas. It has managed to do so in a highly collaborative fashion — bringing together prosecutors, investigators, defendants, and courts in the process — and to develop protocols that, with due tweaking, have served as templates for mass error incidents when they arise. Perhaps most critically, however, the very existence and work of the TFSC has communicated to system actors that responding to mass error is a critical function of the criminal justice system. Other institutional forms might communicate this equally well. The bottom line is that ensuring both fairness and accuracy, and maintaining public confidence in a criminal justice system that will inevitably reveal its vulnerabilities, requires that we take on board the task of confronting and untangling mass error when it occurs.

Changing the Politics of Mass Incarceration

Changing the Politics of Mass Incarceration

It’s been almost 50 years since President Richard Nixon played the law-and-order card to help him win the presidency. Decades later Donald Trump has adopted the same playbook, telling his own version of the forgotten American who is at the mercy of a crime wave. It didn’t matter that facts didn’t support candidate Trump’s arguments. Politically speaking, it worked.

Nixon’s tough on crime political playbook, used by generations of American politicians after him, including Bill Clinton during the introduction and passage of the 1994 crime bill, has resulted in a mass incarceration crisis. On any given day, 2.3 million people are locked up, more than in any other nation. This mass incarceration crisis has devastated families and communities, particularly low income communities of color.

Yet in the same way that politics got us into this mess, politics have to get us out of it.

I spend a lot time thinking about how we end mass incarceration in the United States. On some days, it feels like we’re winning. Not a month goes by when we’re not getting some form of criminal justice reform legislation passed in the states or litigation won in the courthouses, whether on bail reform, drug or property law reform, or reforms to mandatory minimum laws.

Yet on many other days it feels like we’re losing, badly. Incarceration has only decreased 5 percent since 2009. We now spend roughly $80 billion per year on incarceration alone. And the poisonous rhetoric of law-and-order still spews out towards us on a daily basis. In many places, including in the White House today, when a politician needs a bump, he still relies on the law-and-order narrative borne out of the Nixon years.

But what if it didn’t have to be like this? What if criminal justice reform advocates on the right and left, the broader civil rights community, and more politicians jumped into electoral fights with the same vigor as the law-and-order crowd but not being scared to talk about compassion, rehabilitation and reinvestment as a replacement of law-and-order?

There are glimmers of hope that this strategy can work, and it is coming from surprising places. For decades it had been assumed that the only way to win an election for one of America’s approximately 3,000 district attorney seats is by being the toughest, least compassionate candidate in the race. Yet in several cities and counties this is beginning to change.

Philadelphia has most recently exemplified this phenomenon. The city has a long history of electing politicians who ran on a law-and-order platform. Former Mayor and Police Commissioner Frank Rizzo took pride in being a “tough cop.” Lynne Abraham, elected district attorney of Philadelphia from 1991 to 2010, was called America’s “Deadliest D.A.” by the New York Timesbecause of her zeal for pursuing the death penalty. For reformers living in that era, it would have been impossible to imagine a politician who could win on a criminal justice reform agenda, let alone a politician running to be the city’s top prosecutor.

Yet today, the leading candidate for Philadelphia district attorney is a civil rights lawyer who has never been a prosecutor, and who won the Democratic primary running on a platform centered on criminal justice reform and ending mass incarceration. With the overwhelming advantage for Democrats in the general election, it is fair to assume that Larry Krasner will be Philadelphia’s next district attorney.

The turn of events didn’t happen by accident. It represented a strategy deployed by local and national criminal justice and civil rights organizations (including, to name a few, the Philadelphia Coalition for a Just District Attorney, Color of Change, Safety and Justice PAC, and the Working Families Party). Support poured in to engage in aggressive voter education and turnout efforts, elevating the importance of alternatives to incarceration, bail reform, and rejection of policing practices that criminalized communities.

The ACLU alone organized our 11,438 members who are registered to vote in Philadelphia, knocking on more than 26,000 doors and hiring and training 51 canvassers who are formerly incarcerated to approach our members, in a non-partisan way, about why it was important to vote for a district attorney committed to ending mass incarceration. Our preliminary analysis reveals that our members, even ones who have note voted in recent elections, responded to our outreach by casting a ballot in this election. And the strategy succeeded by elevating the issue of ending mass incarceration to the forefront of the election.

Philadelphia is not alone in this example, as reform candidates have begun winning in cities and counties across the nation. But while prosecutors are the most powerful politicians in the criminal justice system, there are many additional actors who need to be held accountable.

Similar strategies and resources must now be deployed in elections up and down the ticket. In fact, state and local races are usually where it matters most in the fight to end mass incarceration. Ninety-percent of people who are incarcerated in the United States are under state and local jurisdiction. A state governor or assembly member matter a lot more when it comes to criminal justice reform than a congress member. It may be more interesting to talk about United States senators, but a state senator has much more power in deciding who and how many people are locked up in prisons and jails.

In the past few weeks alone, the ACLU has launched voter education efforts related to prosecutorial races in California, Oregon, Massachusetts and New York. In 2018, we will double down on this strategy and deploy it all over the nation, expanding it beyond prosecutors to include politicians of all types who decide the fate of the millions of people incarcerated in our nation today.

For the politics of mass incarceration to genuinely change, electoral strategies must use all of the tactics in the political handbook that candidates for office have perfected. This includes strategic get-out-the-vote efforts, phone banking, mailers to voters, and more. It must also include pressuring the party machines on both the left and right to elevate the importance of criminal justice reform. There has been a lot of talk over the years about how criminal justice reform is one of the few remaining bipartisan issues. Well now it’s time to test that theory in political races on the right and on the left.

We’ve seen it happen before in the United States; culture and political incentives change. Yet it never happens accidentally, but rather through the concerted efforts of organizers and activists and voters demanding a different way. The time has come to retake what it means to keep communities safe, and to change the incentives for politicians who shape our nation’s criminal justice system.

We can’t legislate or litigate our way out of mass incarceration. But we can and must change the culture and politics that have led to mass incarceration in the first place.

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How the Manhattan DA’s Use of Big Data Targeting Risks Changing the Rules of Prosecution

West Midlands Police

How the Manhattan DA’s Use of Big Data Targeting Risks Changing the Rules of Prosecution

A book excerpt from The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement (NYU Press 2017)

In downtown Manhattan, an experimental prosecution unit has begun rethinking how to reduce violent crime. Under the leadership of dis­trict attorney Cyrus Vance Jr., the Manhattan District Attorney’s Office created the Crime Strategies Unit (CSU) to target the bad apples in com­munities and take them out by any means necessary. Call it the “Al Capone” approach to crime, only the targets are young men suspected of violence, not national mob bosses. Dubbed “intelligence-driven prosecution,” police, prosecutors, and analysts target individuals for incapacitation and thus removal from problem areas of the city.

Analytical and aggressive, CSU prosecutors build cases against the primary crime drivers in a neighborhood. First, crime data allows pros­ecutors to isolate high-violence areas for scrutiny. By crunching police crime data and mapping neighborhoods, prosecutors identify particu­lar hot spots of violence. These areas become known as “Bureau Based Projects” (BBP). A small team of prosecutors oversees each BBP and coordinates intelligence gathering in the area. These prosecutors work closely with the main CSU staff and may or may not take the cases that result from NYPD making arrests in the hot-spot areas. A “violence timeline” is created for each area, highlighting the past pattern of vio­lence between groups, gangs, and individuals. The timeline lists details of each shooting with suspects, victims, and facts, along with time, loca­tion, and date.

Second, particular individuals are identified for police attention. Each BBP selects ten or so “priority targets” — “people whose incapacitation by the criminal justice system would have a positive impact on the community’s safety and/or quality of life.” Field intelligence officers, detectives, and patrol officers help identify the priority targets for removal. These individuals have at least five criminal convictions and a history of violence. Some have been un­cooperative victims of past shootings. Others are associated with gangs or criminal groups. A “target tracker” of each young man populates the data system with photos, prior criminal history, and other personal information. These individuals become the targets. Like Al Capone, who eventually faced prosecution for tax-evasion charges rather than the more violent crimes he engaged in, these priority targets do not have outstanding arrest warrants and cannot be arrested based on existing evidence.

Prosecutors input the names of priority targets into an “arrest alert system.” ­This arrest alert system then allows prosecutors to know if a target has been arrested. Routine fingerprinting keyed to a person’s criminal history (rap sheet) triggers the alert. Under the old system, if a target got arrested for scalping Broadway tickets or simple assault (or some other minor offense), line prosecutors would have no way of knowing the level of threat posed by the individual. Now, alerts (usually an email) inform prosecutors throughout the office that a wanted target has entered the criminal justice system. The arrest alert system triggers a process whereby all the power of the prosecutors’ office can be used to incapacitate the individual. Enhanced bail applications can be used to argue for pretrial detention. Additional charges can be added to ratchet up pressure to plead guilty. Harsher sentencing recommendations can be sought to increase punishment. Even after sentencing, prosecutors are alerted to a defendant’s release, so that the Manhattan parole system can monitor reentry back into society.

Data sharing also allows a more comprehensive intelligence-gathering operation. A new data system allows over 400 prosecutors to prosecute 85,000 cases a year. Information about cases, suspects, neighborhoods, witnesses, gangs, nicknames, rivalries, crimes, tips, and a host of other data is coordinated through shared searchable databases. Prosecutors debrief individuals in the arrest alert system, looking for more informa­tion about networks of violence. Photos of criminal associates, social media postings, and other tips become part of the data-collection sys­tem. NYPD police commissioner William Bratton called it a “seamless web” of shared data between police and prosecutors and termed the partnership one of “extreme collaboration.” Inspired by the sabermet­rics approach to baseball and finance, Cy Vance Jr. likened it to a “Mon­eyball” approach to crime fighting.

On a few occasions, this person-based targeting has led to large-scale arrests and prosecutions. Utilizing the intelligence-driven prosecution platform, the Manhattan District Attorney’s Office has prosecuted sev­eral violent gangs in New York City. In one case, the District Attorney’s Office in collaboration with the NYPD studied violence patterns, gang activity, and even social media before indicting 103 members of local crews. In 2014, the prosecution of these youth gangs for homicides and shootings in West Harlem stood as the largest gang conspiracy indict­ment in New York City history.

New York City has seen record low crime levels both before and after implementation of the intelligence-driven prosecution methods. Vio­lence rates remain low in the targeted microareas, and shootings have dramatically declined. As a result of the initial success in Manhattan, the concept of intelligence-driven prosecution is being replicated across the country. In Baltimore, San Francisco, Philadelphia, Richmond, and Baton Rouge, intelligence-driven prosecution is using data to target the bad apples for removal from society.

The idea behind person-based targeting is both old and new. Police have always known the bad apples in a community. Prosecutors have regularly targeted them. Yet a policing philosophy that uses data and predictive analytics to prioritize the crime drivers in a society signifies a new approach. [Three] main changes emerge from these technologies — insights that will shape the future of who gets targeted.

[P]roactively targeting violent social networks will change how local police respond to crime. Traditionally, local police might react to calls for service, rely on observations on patrol, or respond to com­munity complaints. With person-based predictive targeting, police can instead target suspects for surveillance or deterrence before needing to respond to a call. For local prosecutors, this represents a significant change. As the former head of the Manhattan Criminal Strategies Unit stated, “It used to be we only went where the cases took us. Now, we can build cases around specific crime problems that communities are grappling with.” Big data policing makes police more proactive. In many ways, intelligence-driven prosecution and policing at the local level are really just mirroring some of the approaches federal investi­gators and federal prosecutors have used for years. While the FBI and U.S. Attorneys regularly investigate completed crimes, they also focus on surveillance and investigation of criminal networks to prevent or disrupt future crime. For local police, the study of gang networks means a simi­lar change from reactive policing to proactive policing.

[M]oving from traditional policing to intelligence-led polic­ing creates data-quality risks that need to be systemically addressed. Intelligence-driven systems work off many bits of local intelligence. Tips, crime statistics, cooperating witnesses, nicknames, and detective notes can get aggregated into a large working data system. Yet the qual­ity of the data is not uniform. Some tips are accurate, and some are not. Some biases will generate suspicion, and some informants will just be wrong. An intelligence-driven policing or prosecution system that does not account for the varying reliability and credibility of sources and just lumps them all together in the name of data collection will ultimately fail. Just as national security intelligence agencies have layers of intelli­gence analysts to examine incoming information, so police departments must develop similar structures to vet this intelligence-like data. Blind data collection without information about sources, reliability, or test­ability will result in an error-filled database. Systems must be designed — before adopting data-driven technologies — to source, catalogue, and make the information useful for officers. Especially when these systems are used to target citizens for arrest or prosecution, the quality-control measures of black-box algorithms must be strong.

Other data-integrity concerns may arise when detectives, gang ex­perts, or police intelligence officers control the target lists. While these professionals have close connections to the community and valuable knowledge of local gangs and potential targets, the ability for risk scores to be manipulated by police interested in prosecuting certain individuals opens up questions of the objectivity and fairness of the lists. If a gang detective can put someone on the list and there is no process to change or challenge the list, the system could be abused. If there is one thing that has been demonstrated regularly with the proliferation of gang da­tabases, these lists are rife with errors. After all, without formal crite­ria to be a member of a gang, rumor, assumptions, or suspicion can be enough to be labeled part of a gang and thus result in an elevated risk score. Worse, there is usually no easy way to get off the list, despite the fact that circumstances change, time passes, and the data grows stale.

Finally, big data policing may distort traditional roles of prosecutors and police officers. Prosecutors seeking to incapacitate individuals on their “primary target” list can bump against ethical lines. During a training on intelligence-driven prosecution, one supervising prosecu­tor spoke of a case involving a young man (a primary target) running toward a street fight holding a lock in a bandana. While the man was likely up to no good, holding a lock in a bandana is not necessarily a crime. But prosecutors chose to charge the man with carrying a dan­gerous weapon with the intent to use it (despite equivocal evidence of intent). Such a serious criminal charge might not have been pursued if the suspect had not been on the primary target list and may not even be supported by the facts. But when incapacitation is the goal, the pros­ecutor’s power to use charging, sentencing, and bail determinations aggressively can distort the traditional focus of the prosecutor. Such a distortion is not necessarily bad. If the prosecutor was correct and the primary target was a violent risk to the community, maybe such aggres­sive predictive prosecution makes good sense. But if this type of human targeting is inaccurate and if it is misused or even if it is unchecked, it can be damaging to the perception of fairness in the justice system.

Excerpted from The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement (NYU Press 2017).

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