Realizing reliability in forensic science from the ground up.

AuthorGabel, Jessica D.
PositionIII. To Big to Fail: Obstacles to Federal Forensic Oversight C. Tie Federal Funds to Adoption of Regulations through Conclusion, with footnotes, p. 318-352
  1. TIE FEDERAL FUNDS TO ADOPTION OF REGULATIONS

    1. Constitutionality of Tying Federal Funding to Related Programs

      Tying federal funding to the adoption of standards is another, less direct method to create effective national forensic standards. Congress employed this method before to coerce states to adopt a drinking age of twenty-one. Passed in 1984, the National Minimum Drinking Age Act provided that any state that lowered its drinking age below twenty-one lost 10% of its federal highway funding. (245)

      South Dakota challenged the National Minimum Drinking Age Act's constitutionality in South Dakota v. Dole, (246) The Court upheld the Act but laid out four general restrictions on Congress's spending power: (1) any such "exercise of the spending power must be in pursuit of the general welfare"; (247) (2) Congress must make its conditions on federal funds unambiguous; (3) any condition might be illegitimate if it does not relate '"to the federal interest in particular national projects or programs'"; and (4) other constitutional provisions might create independent bars to Congress's conditional grants. (248) Thus, any attempt to coerce states to adopt national forensic standards must fall within these restrictions. (249)

      Utilizing federal spending power to create national forensic standards would likely pass constitutional muster. First, a national forensic standards program would be in pursuit of the general welfare. National forensic standards would help place factually guilty criminals in jail sooner, providing for safer communities. Relatedly, wrongful convictions would decrease, resulting in fewer resources wasted litigating and fewer innocent citizens behind bars. Providing clear job paths in the forensic sciences would also streamline educational processes and attract more people to the field. Next, Congress could easily meet the second restriction by unambiguously writing into the legislation the conditions for federal funding. Further, the third restriction--ensuring that the condition relates to the particular federal interest--would also be easily met. In Dole, the condition placed on federal highway funds was that states keep the legal drinking age at or above twenty-one, and the Court found that this requirement directly related to safe interstate travel, the main purpose of highway funding. (250) Here, the condition would be to follow a national forensic standards program, which is directly related to creating national forensic standards, the main purpose of the funding. Finally, none of the many components of the program would likely violate other constitutional provisions. Thus, satisfying all four restrictions, a program that tied federal funds to state participation would be a constitutionally viable option to encourage states to adopt national forensic standards.

    2. Obstacles in Using Federal Funds to Encourage Adoption of Standards

      Because tying federal funding to national forensic standards might be constitutionally permissible does not mean that it is the best or easiest method for encouraging their adoption. There are also practical challenges, such as getting states to act and securing a source of funding. Examining similar programs already in place can provide guidance.

      1. Adoption

        The strength of a national forensic standards program would come from it being truly national, which would (eventually) require every state to adopt the standards. To this end, federal funding can be a powerful motivator. For example, after the National Minimum Drinking Age Act tied only 5% of a state's federal highway funds to the drinking age requirement, all fifty states complied with the condition. (251) Perhaps this quick compliance based on such a relatively small percentage of funding is simply evidence that states can only be enticed to make decisions they were not far from making in the first place. Even granting this assumption, there is little evidence of strong moral resistance among the states to the idea of national forensic standards.

        Greater resistance to a federal funding program might come from states that will not benefit from it. It is unlikely that federal funding could cover every state's forensic science expenditures, especially when the initial costs to raise a state's forensic standards to a proposed federal level are great. Thus, some states will lack resources to effectively implement national forensic requirements, even with federal funding.

        To close the gap between current state forensic science standards and the standards a national program would require, multiple methods of fund distributions are necessary. Initially, federal funding directed at elevating current state forensic standards could be offered, followed by a separate source of funding to maintain that standard. This would help states overcome the burden of eliminating the disparities between their current standards and those that would be required under a federal system. Assuming adoption could be achieved through funding, discovering a means to pay for that funding could still present a problem.

      2. Source of Funds

        In light of the current economic conditions and approaches to federal spending, (252) finding significant sources of funds to support a national forensic standards program would be challenging. Arguments for such a program should include both any cost savings and any economic stimulus such a program would create.

        As discussed, national standards would address the current forensic systems' inefficiencies. Erroneous criminal convictions cost the country both in terms of what wrongly convicted defendants could otherwise provide for society and the damage criminals who escape conviction can cause. Moreover, the myriad of inconsistent forensic standards across the country prevents labs, investigators, prosecutors, and defense attorneys from seeking out more efficient and effective methods for resolving frequently litigated forensic issues. Consistent national standards would streamline forensic processes.

        A national forensic standards program would also provide economic stimulus. Research funding would advance our universities and research institutions. A clear (and nationally consistent) career path for forensic scientists would draw more students to STEM subjects and to the forensic science field. Focusing the nation's forensic science standards on common goals might also create new industries and allow the United States to become a leader in others.

      3. Previous Attempts

        In addition to considering the potential funding and adoption problems, a survey of previous attempts to develop a national set of forensic standards can provide guidance for a new endeavor. As previously mentioned, Congress has already tied federal funds to some forensic science initiatives. From 2000 to 2004, Congress created and expanded the aforementioned Paul Coverdell National Forensic Sciences Act. (253) The Coverdell Act "awards grants to states and units of local government to help improve the quality and timeliness of forensic science and medical examiner services." (254) In 2009 and 2010, roughly $23 million and $33 million were given out in Coverdell grants, respectively, but that amount fell to less than $11 million in 2012. (255)

        The Coverdell grant program has faced two problems that any national forensics standards program would need to overcome. The first is its total funding level, which would need to be significantly higher than the Coverdell program's $33 million high point to initiate and ultimately maintain a national forensic standards program. The second problem is the Coverdell system's administration. An Innocence Project report found enough significant problems with the program's administration to call into question whether it even ensured that the law's most basic requirements were being followed. (256) Again, history does not bode well for establishing a federal forensic agency that has authority over nonfederal forensic stakeholders.

  2. THE BUY-IN: RESISTANCE TO REFORM

    Assuming that a more tempered, fiscally palatable, and constitutional approach to a federal forensic agency is possible, the problem of "buy-in" still has not been overcome. Stakeholders across all levels of the forensic process would need to commit to reform. Given that the forensic process-- from crime to conviction--requires coordination and communication across the complexity of the criminal justice system, it functions much like a nervous system. And just as a nervous system is vulnerable to malfunction in multiple ways, so too is the forensic process. Consequently, absent choreographed interplay of all the individuals in the forensic nervous system, forensic reform (let alone establishing a federal agency) would lack the necessary support. The system requires integrity and the cooperation of all parties. It is about more than just ironing out kinks in the circuit.

    Immediately after the NAS Report's release, several specialty forensic organizations promulgated rapid-fire statements condemning the report, the representative groups of the NAS committee, and the methodology that led to their long list of recommendations. Rather than responding with reason and authority, the organizations resorted to defensive rhetoric. In an obvious attempt at damage control, the organizations demonstrated that any attempt to overhaul forensic science would be met with swift and strong resistance. (257) Indeed, if these groups possessed the lobbying prowess of, for example, the National Rifle Association, they probably would have been able to get legislation moving in the opposite direction and perhaps would have sought to declare forensic reform unconstitutional.

    As already noted, the NAS Report singled out fingerprinting and firearms analysis, among a host of others. With regard to finger-printing's ACE-V method, the Report concluded that the framework lacked specificity, failed to prevent bias, and could not produce repeatable and reliable...

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