The Atlantic Interviews Radley Balko

Radley Balko is a senior editor at Reason Magazine whose award-winning investigative work focuses on criminal justice and civil liberties. His blog, The Agitator, is one of the most carefully curated resources for stories on the same subject.

Q. In your work, you’ve frequently reported on police abuses and the appropriate role of law enforcement in a free society. Though you’re often writing in regard to specific controversies, I wonder if you have any general criticisms of the American criminal justice system. What’s wrong about where we’re at? What are the most urgent improvements you would recommend?

I think the main problem is too much attention to numbers and statistics, which I think has been largely driven by the 40 years of “get tough on crime” rhetoric and slogan-based crime policy we’ve been getting from politicians. Everyone wants to boast about declines in crime statistics. But the focus on raw numbers has created some perverse incentives, from beat cops through mayors and police chiefs.

Ed Burns, the former Baltimore narcotics cop and co-creator of the HBO series The Wire talks about this often. Drug cops are evaluated based on how many people they arrest, and what quantity of drugs they seize.

Take what was saw in Atlanta after the Katherine Johnston case–the 92-year-old woman who was killed in a botched drug raid. Drug cops in Atlanta had quotas of drug arrests and seizures they had to meet each month. So there was a rush to meet the quota. If you got a tip about a big drug stash somewhere, there was pressure to get there quickly before it was moved, even if you had to take shortcuts in the warrant process. If you’re evaluated solely on raw arrest numbers, why take six months to build a case against a mid- or high-level drug distributor when you can get ten times the credit for arresting 10 street-level guys? Why not take shortcuts if you can get away with it?

Prosecutors get re-elected or move on to higher office when they put lots of people in prison. They rarely get credit for choosing not to prosecute someone in the interest of justice. That’s not to say it doesn’t happen. But there’s rarely any professional reward for doing so. In fact, they usually get flack for it, particularly in high-profile cases. Prosecutors are also rarely sanctioned for bending or breaking the rules. They’re virtually immune from lawsuits, even if they convict the wrong person, and even if prosecutorial misconduct was a major factor in the conviction. So you have all this pressure on winning convictions, with little sanction for going too far.

Federal criminal justice grants, asset forfeiture, promotions, higher office — all of these rewards are based on arrests and convictions, not necessarily a fair administration of justice.

The other problem I think is a more general tendency in America toward criminalizing bad behavior. We seem to be unable to accept the idea that sometimes, bad things just happen. We want someone to be punished. If there’s no law on the books, we demand our politicians pass one.

Take the case of Lori Drew, the Missouri woman who used a fake MySpace account to taunt once of her daughter’s peers until the young girl committed suicide. It’s an awful case, and Lori Drew acted despicably. But federal prosecutors in Los Angeles went after her based on a ridiculously broad interpretation of hacking laws. Now Congress is looking at overly broad, almost certainly unconstitutional legislation aimed at criminalizing online “harassment.”

Here’s a pretty good rule of thumb: If you’re naming a piece of crime legislation after a crime victim, it’s probably a bad law. It means you’re legislating out of anger, or in reaction to public anger over a specific incident. That’s generally not how good policy is made.

We have way too many laws, many that are too broadly written, and too many incentives nudging the state toward putting too many people in prison for as long as possible.

You’ve criticized the militarization of law enforcement. It’s a topic The Atlantic covered in the aftermath of the Columbine shooting, when police departments all over America began encouraging a SWAT team mentality among regular officers. Why is this war mentality a bad thing? Aren’t there heavily armed bad guys who are literally causing war-like casualties in urban neighborhoods?

The military is trained to kill people and break things — to annihilate a foreign enemy. The police are charged with protecting our rights while securing the peace. Those are two very different missions, and it’s dangerous to conflate them. But that seems to be what’s happening.

I documented this rise of militarism in a 2006 paper I wrote for the Cato Institute. In addition to the dramatic rise in SWAT teams in this country (about a 1,500 percent increase in the last 30 years), there’s also an increasingly militaristic mindset taking hold in many police departments–an “us versus them” kind of mentality that pits cops against the neighborhoods they control.

We’re dressing police officers in military attire, giving them military-grade weaponry, training them in military tactics, then sending them into American cities and neighborhoods and telling them they’re fighting a war–be it the war on drugs, or a more generic war on crime. That’s not a healthy development for a free society. People who live in high-crime areas are still American citizens with rights. They aren’t the foreign residents of an enemy nation.

The argument that we need to arm cops like soldiers because the modern criminal is increasingly well-armed is appealing, but doesn’t seem to be backed by much evidence.  The idea seems to be driven by a couple of high-profile but largely anomalous incidents, most notably the 1997 North Hollywood shootout.

But in 2004, the National Institute for Justice released a study showing that assault weapons are rarely used in actual crimes, and it’s even rarer to find one used in the shooting of a police officer. This jibes with a study from the 1990s by gun researcher Dave Kopel. In the Cato paper, I also document several media surveys showing that SWAT and no-knock raids very rarely turn up high-powered weaponry, even though the possibility of big guns is often the justification given for their use. Most of the narcotics cops I’ve talked to over the years say drug dealers tend to prefer small, easy-to-conceal handguns.

Q. You mentioned no-knock raids — can you explain what those are, and why you object to them so regularly on your blog?

No-knock raids are when police force entry into a home without knocking or announcing themselves first. The Supreme Court has recognized that requiring the state to knock and announce before entering a home is part of the Fourth Amendment — part of the “Castle Doctrine” that extends back into English common law. The problem is that in the same opinion (Wilson v. Arkansas), the Court carved out enough exceptions to overwhelm the rule.

Police can now enter your home unannounced if they believe that knocking would endanger their safety, or if they believe it would give you time to destroy evidence, which in most cases means the time you would need to flush your drug stash down the toilet.

The problem with no-knock raids is that they’re extremely volatile, confrontational, and leave very little margin for error. They might make sense when you’re trying to defuse an already-violent situation — say to apprehend a dangerous escaped fugitive, or to end a hostage standoff. But most no-knocks today are conducted for the routine service of drug warrants. So they aren’t defusing an already violent situation, they’re creating violence where the was none before.

When you break into someone’s home, particularly while they’re sleeping, you invoke a primitive, defensive response in them. It’s a particularly dangerous tactic in a country with a history and tradition of gun ownership.

I should also note here that while the law distinguishes a no-knock warrant from a knock-and-announce warrant, I’m not sure there’s much practical difference. The real issue here is forced entry — sending armed, heavily armored cops barreling into private homes. Whether they knock and announce themselves in the seconds before they take the down the door probably isn’t going to make much difference in how you interpret the threat and how you react, particularly if you’re sleeping.

Even if police always got the right house and every raid were performed flawlessly (and that’s obviously not the case), the image of police dressed as soldiers routinely breaking into private homes to serve warrants for non-violent crimes is one we ought to find disturbing. At one time we did. There’s an old Cold War saying, “Democracy means that when there’s a knock at the door at 3am, it’s probably the milkman.” Masked government agents dressed in black barging into private homes in the middle of the night was once an image we associated with totalitarian states.  We seem to be troublingly comfortable with it, now.

Q. Perhaps the most significant story you’ve covered lately involved prosecutors using the services of a bite mark expert, though evidence suggests he is no expert at all. Can you briefly describe that case, reflect more generally on the idea of expert witnesses in our criminal justice system, and explain why you think the status quo is problematic?

In the 1990s, a Mississippi dentist named Michael West became a popular expert witness for prosecutors because he claimed to be a bite mark expert who could find and identify tooth impressions in human skin that no other expert could see. He was eventually exposed as a fraud by 60 Minutes and other media outlets, though he continued to testify in Mississippi, and there are still people in prison who were convicted primarily because of his testimony.

West got on my radar as I’ve reported on the problems with the forensics system–particularly in Mississippi, where until last year, one doctor who colleagues say is sloppy and disreputable has done 80-90 percent of that state’s criminal autopsies for the last 20 years.

That doctor, Steven Hayne, and West were the primary reason two men were convicted of the rape and murder of two little girls in the early 1990s in Mississippi. DNA testing exonerated both men last year. Earlier this year, I wrote about another case in which the two men may have fabricated bite mark evidence in a murder case, and another in which a defense attorney conducted an amusing sting to expose West’s charlatanism.

Fraudulent experts like West and Hayne have been able to thrive because of some pretty significant flaws in how forensic evidence is used in the criminal justice system. The main problem is that it’s presented as science, but isn’t really subject to the sort of rigorous testing and peer review that other fields of science undergo. Bite mark evidence, for example, should never be used in a court room. There’s no legitimate scientific literature to back up the idea that you can trace tooth imprints on human skin to a single suspect. But the National Academy of the Sciences warned in a big report earlier this year that even areas of forensics we once thought infallible, such as fingerprint evidence, are subject to error, whether it be malicious misconduct, or less nefarious bias and innocent mistakes. The certainty of DNA testing has exposed the flaws in how we’ve traditionally dealth with forensic evidence.

Juries tend to put a great deal of faith in witnesses that judges certify as experts. The problem is that judges haven’t adequately performed their duty as gatekeeper, both at keeping frauds out of the courtroom and preventing legitimate experts from testifying beyond their expertise or exaggerating the certainty of their conclusions.

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.