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Thinking Strategically about Developments in Law Enforcement Technology

Citizens Crime Commission, New York City, New York

Dear friends and colleagues:

It is truly wonderful to come back home and to see so many friends and colleagues here. I am so grateful that I had the opportunity to work in the criminal justice system of New York City – I learned invaluable lessons about crime, justice and communities and made friendships that have lasted throughout my entire career.

It is particularly gratifying to be invited to speak at one of the Citizens Crime Commission breakfasts. These breakfasts have always served as an important forum for the exchange of ideas about the latest initiatives in the area of crime and justice – so I am honored to be asked to join you this morning.

I must say one word about Tom Repetto's introduction. It is true that I played a role in designing the Police Department's quality of life strategy, entitled "Reclaiming Public Spaces". Now, as we look at the progress New York City has made in reducing crime and improving the city's economy and vibrancy, we often hear the argument that the quality of life strategies of the Police Department played a substantial role in the City's revitalization. Those strategies are not without their critics however. Those who believe the police have become too aggressive often lay the blame at the doorstep of the quality of life strategies. I would like to take this moment to make it clear that I am perfectly willing to be associated with whatever benefits New York City has realized in this regard; Jack Maple is responsible for anything that went wrong.

I would like to talk with you this morning about technology - about the promise of new technologies for advancing the goals and operations of our criminal justice system, and about some of the cautionary notes we should pay attention to as we develop new technologies and introduce them into the world of criminal justice policy.

In this first month of the new millennium, we have heard any number of lofty statements about the challenges we face in our world, and many hopeful observations about the potential for improving the quality of life in our society. One commentator I heard on national television last week said that we are entering an age of new science. This seems right to me. We are exponentially increasing our scientific knowledge about the workings of the brain, the makeup of the human genome and the enormous potential of the digital world that creates electronic links around the globe.

These developments are already changing the face of crime. Just consider the implications of the internet. Cyberterrorists can invade our national security systems; cyber thieves operating in one country can steal the assets of corporations located in another; child pornography rings can operate in an electronic community that transcends national boundaries.

These scientific developments are also changing the nature of our response to crime. Consider what is now commonplace. Electronic monitoring of persons convicted of a crime is now commonplace. Video surveillance systems are now common in many European cities and are being tested in the United States. Urine testing for drug use of persons convicted of a crime is now commonplace and accepted as part of community supervision.

The challenge we face is how to harness the power of science and technology for our crime and justice purposes, while maintaining our healthy vigilance against the abuses of that science in ways that would violate our societal values. In my view, if we do the first well, we will revolutionize our approach to preventing and solving crimes and our communities will be immeasurably safer; if we don't do the second well, however, we will allow the power of these new sciences to transform our society into one with diminished liberty and autonomy.

I have been privileged for the past five and a half years to serve as Director of the National Institute of Justice, the research arm of the Department of Justice. Many of you may know NIJ best for its investments in a different kind of scientific enterprise – the investment in social science research about the nature of crime, the changing contours of drug markets and gun violence, and the effectiveness of different criminal justice programs and policies. Perhaps less well known, over the past several years, NIJ has been increasingly engaged in advancing an ambitious and growing science and technology agenda on behalf of law enforcement, corrections and criminal justice professionals around the country. We have achieved some remarkable successes over that period of time, so this morning I want to share some of important new developments that provide a glimpse of the revolution that is within sight. At the same time, and with proper appreciation to the Clinton administration and the Congress for supporting our work, I want to make a case for a much more ambitious and systematic approach to this first challenge.

I hope you had an opportunity to take a look at the technologies that we brought to display at this forum. Although they represent only a small portion of our R&D portfolio, these technologies are at the cutting edge of this revolution.

I would like to focus our thinking on one area of science and technology to illustrate the potential and challenges we face. Take the science of DNA as an example. We have known for more than two decades about the power of this science to provide a unique identifier of an individual. DNA evidence was first introduced into criminal court proceedings in 1988 and now every state in the nation allows the introduction of this kind of evidence by statute or court rule. Every state has also passed legislation permitting the testing of samples of different categories of persons convicted of a crime to support a national database so that DNA can also be harnessed for its power to solve new crimes.

So, the science of DNA – and the legal relevancy of the science of DNA – are beyond dispute, but the national commitment to bring the power of this science to meet the challenges of crime and justice is just now beginning to take shape.

Consider the following. Under the state statutes I just mentioned, we have created a backlog of a half million DNA samples of convicted persons that have not been analyzed and entered into the database. At NIJ, we have reviewed numerous examples of the correlation between the number of samples in a database and the number of crimes solved. For example, for the five year period from 1993 through 1998, when the total number of samples in the Virginia database reached only 26,000, Virginia received only 31 hits — cases solved by using the database. However, by outsourcing 100,000 samples and by increasing the volume of the offender database four times, Virginia solved 100 cases in a single year. The Virginia experience underscores the urgency of completing the task envisioned by the states when they passed the legislation. The failure to do so means that hundreds, perhaps thousands of crimes have not been solved. From the perspective of those victims and the law enforcement officials dedicated to solving those crimes, this is a national scandal.

This morning I am pleased to announce that we have taken a first big step toward eliminating the DNA backlog. At the request of President Clinton, Congress has provided funding in NIJ's budget to significantly reduce the half a million case backlog. Early in March, we will release a solicitation for $15 million to fund private DNA laboratories around the country to expedite the analysis of these samples for entry into the national database. With this $15 million in funding, we expect to reduce the backlog by one-half in the next two years. Continued funding will ensure the elimination of the remaining backlog.

Yet we must acknowledge that eliminating the backlog is only a partial and temporary solution. After all, we now test only a fraction of convicted persons; we are continually expanding the definition of offenses under which convicted individuals must contribute; and we have just begun, with helpful advocacy from Commissioner Safir, to ask why we don't test more routinely, including at the point of arrest as is now accepted practice in the United Kingdom. Our forensics infrastructure is highly inadequate to process these samples. Despite investments approaching $40 million by the National Institute of Justice to upgrade the DNA laboratories across the country, the capacity to conduct DNA analysis has not been enhanced at a rate to keep up with the demand. So the pressure for another backlog will only grow.

So, the second bit of good news I would like to share with you is the remarkable success we have had in developing the technology of DNA to the point where this powerful science can become a routine, inexpensive, and highly flexible crime solving tool for law enforcement. Over the past four years, the National Institute of Justice had undertaken a DNA research initiative, budgeted at $5 million a year, with three ambitious goals: to make DNA tests affordable (our goal is $10 a test, as opposed to the current cost of $50); timely (our goal is a test that takes a few seconds rather than the current 24 hours); and portable, so that DNA analysis can be conducted at the crime scene rather than at a far away laboratory.

Here is one prototype – the result of our investment – what we call the "DNA lab on a chip". With this device, a biological sample – anything from blood to semen to a piece of grass – can be fed into the channels on the chip, the DNA from the biological fluid will be extracted and pulled through these capillaries for analysis, and the 13 DNA markers that constitute the unique personal identifiers can be discerned within a matter of minutes. Those results can then be fed into a computer at the scene, transmitted electronically to the national database, and the crime scene investigators can know whether that sample matches the DNA profile of an individual in the database. We expect that this technology and variations on this prototype will be available for commercial use within the next three years.

What are the implications of this new scientific device? At the operational — or micro —level, we can readily see how this could make a difference. Suspects can be identified – or excluded – at the scene. Plea bargaining will take on an entirely different calculus as unique identifiers are disclosed during plea negotiations. Importantly, assertions of innocence can be tested against DNA evidence – and we have numerous examples of the use of DNA to exonerate individuals wrongly convicted at jury trials. Finally, as we saw in the O. J. Simpson trial, the courtroom battles over the strength of the science will give way to new battles over the chain of custody and the integrity of lab procedures.

But the implications, at a macro level, for our crime policy and criminal justice operations are potentially enormous and we have not come to terms with them. Imagine that DNA is routinely used as part of criminal investigations. Will we solve significantly more crimes and arrest significantly more people? Will our conviction rates increase substantially? Will our rates of imprisonment increase even though crime rates are down? What will the effects be on deterrence and public expectations about crime control? The implications beyond the criminal justice system are equally profound. How will this DNA database be linked to other DNA databases now being created by the military, the health industry and the private sector? If the crime solving potential of DNA is so clear, why would we not create those links? What, if any, should be the privacy limitations on the crime control uses of DNA?

Two years ago, Attorney General Janet Reno created a Commission on the Future of DNA Evidence to consider these and other questions of national importance. This prestigious group, chaired by Chief Justice Shirley Abrahamson of Wisconsin, and broadly representative of a variety of disciplines and perspectives, is nearing completion of its work and has already published recommendations on the need to eliminate the DNA backlog, and the need for a principled approach to post-conviction relief. In the near future, the Commission will issue reports on privacy, training for law enforcement personnel and laboratory infrastructure. These recommendations will provide invaluable assistance to the nation as we chart a course into the unknown territory of DNA.

I think there are three lessons to be drawn from the DNA story as I have told it this morning. First, we need to a national investment strategy to bring the power of science to the work of criminal justice and law enforcement. Clearly, state and local governments cannot be expected to invest in new science. While the private sector has had great success in bring new technologies to our field, we cannot count on them to meet our needs. Other scientific enterprises of the national government have developed a number of technologies that can benefit law enforcement and criminal justice — and any strategy should draw upon the advances already made in defense, energy, NASA and other federal R&D entities. Yet, we need to focus on the needs of the criminal justice system. The DNA story illustrates this point clearly. The "DNA lab on a chip" and the other technologies you saw this morning are all the result of a decision made by the Clinton Administration and the Congress five years ago to begin a national technology R&D program at NIJ. The private sector has not made these investments. Although we have borrowed from breakthroughs in the defense, energy and space sectors, it is clear to me that these technologies have been brought to this point of development precisely because we created a new agenda to support law enforcement and criminal justice.

Yet, even though we have made great progress, and this year NIJ will be investing over $80 million in new technologies, this national investment is hardly sufficient. Consider that in FY2000, we will spend $2.7 billion on energy research, $4.6 billion in basic and applied research for defense, and $1.7 billion to the National Institute of Standards and Technology and the National Oceanic and Atmospheric Administration. Imagine that we followed the industry standard and invested 5% in R & D — then consider that we spend over $100 billion a year at all levels of government on law enforcement and criminal justice — and you realize how far we are from a substantial investment strategy. In short, as we start this new century, we need to develop a national program of research and development that will benefit the entire country.

The second lesson of the DNA story is that we need to stay ahead of the science in our thinking and our policy development. These scientific breakthroughs are going to change fundamentally the way we conceptualize and implement crime policy, yet we have no established forums for thinking about these implications for practice. Worse yet, we adopt policies based on new technologies without thinking through their consequences. For a state to enact legislation calling for the analysis of DNA samples of persons convicted of a crime without simultaneously appropriating the funds to support the analysis illustrates the triumph of symbolic crime control over actual crime control. Our DNA Commission heard testimony from a rape victim in Virginia. The man who raped her remained at large for six years after the crime was committed. For her, those years were years of horror as she feared, every day, that he would return. Finally, he was caught, after the state conducted DNA analysis on a sample that had been taken from him six years earlier but had not be analyzed because of the backlog that had been created. In her testimony, she asked a simple haunting question, Why did it take so long for justice to be done?

On one level, the answer to this dilemma is simple – we need a better way of budgeting that accounts for the latest developments in technology. Achieving this might be possible, yet I remember from my days in the New York City Police Department how difficult it was to get funding for a relatively low tech approach to the arrest to arraignment process – it was always politically more satisfying to hire more police officers. But even if we could work out a formula for purchasing the technologies that would enable our police officers, judges, prosecutors and corrections officers to do their job more effectively, we still need a way to consider the impact of technology on our systems of justice and our crime policies. Fortunately, in the area of DNA technology, Janet Reno clearly saw this need and had the foresight to appoint the National Commission.

We would all benefit if we established national forums for considering the broad implications of a variety of technologies. Take drug testing, for example. This is a well-established technology that is used frequently in most criminal justice systems. It has the capability of telling us about one of the most important issues in the crime policy arena — the nexus between drug abuse and crime. Yet, in my view, we have done very little systematic thinking about this scientific breakthrough. Who should be tested and why? If drug testing is so valuable, why should testing not be universal? Who should see the results and for what purpose? What does a dirty urine mean for decisions made in the criminal justice context? What other information is relevant to those decisions? How does knowledge about continuing drug use relate to our allocation public resources to support drug treatment?

Such a forum would also consider emerging drug testing technologies. We are already seeing rapid advances in the use of hair testing to determine drug use. We can see the possibility of detecting drug use through fingerprints, and substance abuse more broadly through eye and voice examinations. If these are scientifically possible, why are we not clamoring for a national investment in those technologies? In short, I think that our professions are too passive in the science and technology arena – we need to demand a national strategy, but we also need to show the public that we can deploy these technologies thoughtfully, systematically, fairly.

The third lesson from the DNA story, for me, is that we must not lose sight of the social, political and moral context within which we pursue our science agenda. It is deceptively easy for us to argue that any technology that prevents crime, solves crimes and advances justice is a good thing and we just need more of it. Yet, of course the world is more complex and technologies advanced for criminal justice purposes may have profound implications for our democracy.

A few examples make the point. I recently learned that in London the police are starting a program of taking a picture of the license plate of every car entering and leaving the city - the reason given is that this level of surveillance can deter terrorists. Would we advocate that here in the United States? I recently heard of a technology that would automatically shut off the gasoline line of a car exceeding the speed limit. Would we want to require such a technology here in America? If we have placed sex offender registries on the Internet and on CD-ROMS, why would we not do the same for all persons convicted of a crime? How would we square that with the notion that, at some point, a convicted criminal has paid his debt to society, and is beyond the age of offending? Why would this mark of Cain follow him forever on the World Wide Web? What are the implications for our social fabric if we construct a world in which all criminal acts are forever known to the world?

These challenges are particularly daunting as we increase our understanding of the brain and human development. As we learn more about brain chemistry and antisocial behavior, how does that knowledge affect our jurisprudence, particularly our understanding of diminished capacity and mens rea. As we learn more about the brain and adolescent development, and we develop a capacity to predict anti social behavior, how do we construct social policies that will try to defeat the odds of a career of delinquency and crime rather than consigning people to a different future?

These and similar issues have profound social consequences. We could easily take a simple position that any new science that helps us reduce crime, capture criminals, convict the guilty and protect the innocent is a science that should be developed and applied as quickly as possible. Yet I think we have a different set of obligations – as citizens and as members of professions that aspire to justice – and I hope that in the new century, as we enter the era of new science, we can meet those obligations. Thank you