Far from being over, the topic of criminal justice reform will likely return this summer ahead of the fall midterm elections. The fact that President Biden mentioned a desire to “fund” rather than defund the police in his State of the Union address (during a moment of international crisis in Ukraine) indicates how important this issue remains. The president will feel pressure to keep his promises to progressive voters without providing ammunition to his critics. An ideal first step would be to require crime labs to become independent from police and prosecutor’s offices. The most important reasons to do this, however, might not be what you think.
The 2009 National Academy of Sciences’ report on crime labs identified 13 areas for improvement. While significant progress has been made, action on one recommendation has languished: to remove all public forensic laboratories and facilities from the administrative control of law enforcement agencies or prosecutors’ offices.
Most crime labs still operate under law enforcement control. Discussions of potential bias, however, distract from the larger problem: that police and prosecutors’ offices are simply not qualified to operate forensic laboratories.
The real issue is not bias but the delivery of good science. Most publicly funded forensic laboratories (even those with a civilian lab director) ultimately report to individuals with no background in science. This control may be as simple as setting budgets and priorities, but often involves setting policies and procedures. In many jurisdictions, reserving crime scene (or even laboratory) positions for police personnel – no science degree required – still exists. While some critics worry that forensic scientists could have their opinion swayed in one case or another, decisions are being made by nonscientists who influence millions of cases annually.
Although seemingly mundane, lab policies define requirements for job qualifications, evidence collection, analytical procedures and equipment. They also determine how results are interpreted, reported and presented in court. While forensic scientists conduct the analysis, the lab administration ultimately controls the scope and influence that their work has on the criminal justice system. The issue is not that police administrators are manipulating the system to their benefit but rather that they are making unqualified decisions.
Budgets and priorities have an impact on which equipment is purchased and which lab services are offered and prioritized. The long-time failure to prioritize ATF’s National Integrated Ballistic Information Network (NIBIN) – a database of ballistics evidence from unsolved shooting scenes – has hampered its effectiveness in curbing firearms crime. The public was outraged to discover that backlogs were preventing rape kit evidence from being entered into the CODIS (DNA) database. Similarly, failure to enter ballistic evidence into the NIBIN database in a timely manner hinders investigations, allowing more shootings to occur.
Lab control has a direct connection to police reforms as well. High-profile investigations (including accusations against officers) often hinge on forensic evidence. In use-of-force cases, forensic scientists identify which events took place, allowing others to properly assess whether those actions were appropriate. Ensuring that forensic scientists have unfettered discretion over physical evidence allows the best available information to come to light.
Government oversight is helpful but not sufficient by itself. The Criminal Justice and Forensic Science Reform Act introduced by Sens. Pat Leahy (D-Vt.) and John Cornyn (R-Texas) in 2014 spurred progress, but later stalled in the Senate. Several states have forensic science commissions to oversee lab practices, however their mandates vary. Some, like the Texas Forensic Science Commission, exercise vigorous oversight while many others are only advisory. Some commissions have gone years without holding a meeting.
Police and prosecutors have little incentive to relinquish control voluntarily. Agencies choosing to pay the costs to operate a crime lab can prioritize their cases. Submitting evidence elsewhere means waiting in line alongside other departments. And public fascination with crime labs makes them an ideal showcase for public relations purposes.
Unfortunately, this prestige is not always reflected in laboratory budgets. Also, the cultural norms in police departments and prosecutors’ offices do not always align with the operational independence that good science requires. Over the last half century, as crime labs evolved from small back-room operations to modern high-budget enterprises, this relationship has been strained further. Therein lies the justification for independence. Forensic labs have grown in budget and influence such that they could now pursue funding on their own, independent of law enforcement.
There is precedent for independent crime labs. Medical examiners’ laboratories have always operated separately from the police. The state forensic laboratories in Virginia and Alabama have been independent for decades. A number of quasi-governmental and private (mostly DNA) forensic labs operate around the country, processing backlogged or specialty evidence.
The independent public crime labs that do exist typically enjoy department-level status rather than the bureau- or division-level status they would have under police departments. Several jurisdictions (mostly municipalities) have opted to transition their police labs to independent agencies in recent years. Unfortunately, they have often waited until the crime lab was in trouble or the jurisdiction was strapped for cash.
Because most forensic analyses take place at the state and local level, these changes will largely depend on state legislators, who may be reluctant to appear anti-police. But the American National Standards Institute-National Accreditation Board (ANAB), which accredits most crime labs in the United States could require labs to move toward independence, forcing legislators to act. Similarly, the Bureau of Justice Assistance (BJA) could withhold future funding for labs that are not independent. Since forensic labs have become accustomed to federal funding for overtime and backlog reduction, this would be an effective incentive for change.
It is important to remember that this effort is not anti-police, but pro-science. Police and prosecutors benefit when crime labs are independent. The purpose of forensic laboratories is to provide an unbiased evaluation of the physical evidence. Aside from being more efficient during the investigative phase, independent labs remove the appearance of bias when these cases are later presented in court. Jurors may struggle with scientific jargon, but they certainly understand operational independence. The more that juries can trust forensic laboratories to be independent, the more trust they will place in the police and prosecutors presenting cases before them.
Michael Kusluski is a board-certified criminalist and an assistant teaching professor of forensic science at Pennsylvania State University. The opinions expressed are those of the author and not Pennsylvania State University.