THE HONORABLE DEBORAH J. DANIELS
ASSISTANT ATTORNEY GENERAL
OFFICE OF JUSTICE PROGRAMS
AMERICAN SOCIETY OF CRIMINOLOGY 54TH ANNUAL MEETING
WEDNESDAY, NOVEMBER 13, 2002
Thank you, Dr. Sherman. It is an honor to address you today, and a real pleasure to be here with Dr. Larry Sherman, who has served as a beacon and illuminator of what constitutes effective crime prevention and suppression for a number of years. My own community of Indianapolis is only one of many that have benefitted directly from the pioneering work he has done, in strategic policing. I am delighted to be here with Dr. Sherman, and all of you, today to discuss the future of criminal justice and how we can develop a victim-centered justice system.
As you know, the Founders of our great nation created a criminal justice system informed by their prior experience with what they did not want: for example the “star chamber” for which 16th Century England was famous. So they developed a defendant-centered system. They created the presumption of innocence as the founding principle of this system, giving the government a deliberately heavy burden of proof to overcome this presumption. Based on this same presumption, they insisted on reasonable bail for persons accused of crimes. They required public trials, at which the accused had the right to confront his accusers. They protected Americans from government intrusion through the Fourth Amendment, and prevented government from forcing a person to give testimony against himself through the Fifth Amendment. They gave every accused a right to counsel, through the Sixth Amendment; and so on.
And in order to prevent the new nation from developing a system of justice based on personal vengeance, they made the government, not the victim, the opposing party to the defendant in criminal cases. The victim essentially was treated as little more than a witness to the crime. This totally defendant-centered approach continued for essentially 200 years, unchanged but for even greater protections for defendants – such as the Miranda decision in 1966, and the rather similar development of the exclusionary rule. In each case, it was determined by the U.S. Supreme Court that the proper punishment for not following the constitutional rules would be to exclude the evidence obtained in that manner from admission at trial. Such doctrines as the “fruit of the poisonous tree” led to the exclusion of even evidence properly obtained but tainted by that first improper act. So ultimately, if the police made a mistake, it was the victim, and the community at large, who suffered. And, given the twists and turns and constant changes in, in particular, Fourth Amendment search and seizure laws in the past three decades, it is the rare police officer who gets it right every time.
Don’t get me wrong: I think our system of justice is a very good system, which does a very good job of balancing the need for public safety with the rights of the individual. However, we have spent so much energy in our concern about those who are accused of crimes – who, if they are found to be guilty of those crimes, can safely be said to have exercised a choice to engage in that lifestyle – that we have forgotten to give equal attention to those law-abiding people who, as one crime victim recently described it to me, are members of a club they did not seek to join, whose dues are almost unbearable.
Many people, while they fully understand and appreciate the sentiments leading to the current structure of our system of justice – a system which was created to protect us all from being victimized by an oppressive government – still feel that the system bends over backward for the defendant, while treating the victim as an afterthought, at best.
Problems faced by the victims run the gamut – from bail decisions based only on the defendant’s likelihood to appear in court, as opposed to the safety of the victim; to the refusal to allow victims to give statements in court as to the impact the crime had on them; to a total lack of concern for the victim’s ability to be present when scheduling a hearing or trial; to terrified children forced to face their oppressor in court.
Since my earliest days as a deputy prosecutor back in Indianapolis in the late 1970s, I have shared the concern inferred by the title of this panel, that the system was not sufficiently focused on victims of crime. When I successfully prosecuted a murder, or a child abuse case, or a case in which a scam artist stole the life savings of a trusting person, while I found some satisfaction in the imprisonment of the offender, I felt helpless to do much to help the victims. Our prosecutorial successes were, in a sense, no more than Pyrrhic victories, except to the extent that removing a predator from society might help others in the future avoid victimization.
In the 1980s, as you know, several things occurred that culminated in a powerful victims’ movement in this country. Among the critical events were a series of hearings on victims of crime held by President Reagan’s Task Force on Victims of Crime, convened in 1982; and the creation of the Office for Victims of Crime in the Department of Justice in 1984. By the mid-1980s, the movement was in full force.
First, we tried to change the way that rape victims were dealt with by the criminal justice system. Police and hospital employees learned to understand the trauma the victim was experiencing, and gradually improved the way they treated these women in a time of significant vulnerability. In the child abuse arena, we required reporting of suspected child abuse. We sought to minimize the trauma to children who had been victimized, which trauma was associated with multiple interviews, in sterile environments, by people that couldn’t relate to kids. We developed closed-circuit televised testimony, and where possible, videotaped testimony, to try to protect children from the terror of facing their oppressor in the courtroom.
In another critical area, the system stopped treating domestic violence as the philosophical equivalent of a property crime. Until that point, violence in intimate relationships was generally simply tolerated and kept under wraps. Well, those of us in the system began responding to the expressed concerns of those whose lives were a constant terror. We developed training for police; we taught medical personnel to recognize the signs and keep good notes for a potential trial. We developed new laws in many states, encouraging or in some cases requiring the arrest of the perpetrators of domestic violence. We strengthened the effect of protective orders and passed laws making the violation of the order itself an arrest-worthy crime. In our communities, we developed shelters and transitional housing to help these victims escape their violent environment and in some cases to save their lives.
Victim compensation laws were passed in all states, and the federal victims’ fund was established to help fund compensation and services to victims of violent crime throughout the country. Defendants were required to pay fees to support this fund. To some extent, we were then able to cover some of the cost of victimization incurred by individuals who, through no fault of their own, had suffered tremendous injustice and pain and in many cases continued to suffer that pain throughout their lives.
These were all very good developments and significantly improved the way that we dealt with people already victimized. But there was something missing. We were not serving what should be our primary purpose: preventing the victimization in the first place – protecting people from predators, not just making an attempt to help them deal with the effects after it was too late.
So by the late 1980s and early 1990s, we were requiring child abusers who were released from prison to register with the police; and we set up registries of known child abusers, and put that information on line. States passed “three-strikes” laws, requiring lengthy imprisonment of repeat offenders in order to prevent them from continuing their careers as predators. Some states have passed laws allowing sex offenders to be civilly committed until the point at which a professional certifies their ability to conform their behavior to society’s norms. Of course, those laws are now being challenged in the U.S. Supreme Court.
On the federal level, various things occurred, including the Sentencing Reform Act of 1984. While the Sentencing Reform Act is probably most well-known for its creation of the Federal Sentencing Commission, which sought to bring consistency and accountability into the federal system, another aspect of the Act probably makes a greater contribution to community safety: the ability of the federal government to detain persons without bond who are deemed to be dangerous to the community. Though these people had already committed a crime, we could at least try to protect the public in the interim while we were awaiting the opportunity to convict them and seek a lengthy sentence.
Of course, other enactments are more well-known, including the Violence Against Women Acts of 1994 and 2000.
But even given all these advances, there was something missing. This really came home to everyone in America in the wake of September 11, 2001. Perhaps for the first time, we realized that we had terrorists in this country who were willing to kill themselves in order to have the opportunity to kill thousands of Americans. Attorney General John Ashcroft immediately recognized the magnitude of the problem faced by law enforcement, and announced, that effective immediately, we were shifting our focus to prevention, from our former focus on detection, investigation and prosecution of crimes.
This may not sound like much, but it really requires a sea change in the way law enforcement approaches its work. While still respecting the bright line between liberty and security, we must now focus on detection, prior to the commission of the crime; and disruption of efforts to commit crimes, before they occur. Of course, we must continue our traditional approach as well, and prosecute crimes vigorously and effectively – but this prevention responsibility is now our primary focus and our first obligation.
What does this mean? Well, we’re looking to the Immigration and Naturalization Service (INS) to do a better job of identifying those who are coming to this country with the intent to do us ill, while still maintaining the American dream of welcoming immigrants from other countries who do not have such intent. We’re advising prosecutors and police on the “precursor” crimes, such as identity theft and computer crimes, as well as the use of drug trafficking to fund terrorist organizations. We’re advising corrections officials, while they encourage religious belief in our prisons, to watch carefully for the development of radical religious cells in prisons – both Richard Reed, the “shoe bomber”, and Jose Padilla, who is suspected of having plotted to detonate a “dirty bomb” in the U.S., developed relationships with radical Islam while in prison or with people they had served time with. These and other changes in our approach to the crimes likely to be perpetrated by terrorists are essential in protecting our citizens.
The question then arises: if we are going to protect our citizens from terrorists who wish to prey on them, should we not also, while carefully respecting the civil liberties of all persons, seek to protect our citizens from the common criminal – the fellow who is motivated by greed or power rather than anti-American hatred? And how do we do that?
First , what about our efforts to protect victims of recurring violence, such as domestic violence? Are we doing everything we can to protect these victims from redundant and possibly escalating abuse? Are we doing the right kind of research, to determine how best to prevent ongoing violence – and if so, are we sharing the results in such a way as to affect public policy? Are we looking at all aspects of the system to see if we’re doing everything we can to protect these victims?
Here’s an example of the research aspect of these questions. When I was a deputy prosecutor in Indianapolis, the prevailing theory in domestic violence cases was that you didn’t allow the victim to drop charges. It was thought that this approach served the best interests of both the victim and the criminal justice system. And we, like so many other prosecutors’ offices, had a “no-drop” policy, giving the victim no choice but to proceed with the prosecution once charges were initiated. We, or course, felt that by doing so, we were protecting victims who might otherwise be persuaded by the perpetrator to drop the charges, and would be in greater danger going forward.
However, our office took part in a landmark experiment by Dr. David Ford at Indiana University in the mid-1980s that tested the effects of alternative criminal justice policies in preventing further abuse in misdemeanor domestic battery cases. The study found that, contrary to the conventional wisdom, women victims whose case was filed under a victim-initiated warrant were significantly more likely to be safe from continuing violence if the perpetrator was arrested (rather than being summonsed) and the victim was given the option of whether or not to drop the charges. The benefit to the victim of arresting the perpetrator was easy to comprehend. But it was the combination of that factor with permitting the victim to make the decision whether or not to drop the charges that made a stunning difference in re-victimization within 6 months after the conclusion of the case. The study’s authors reasoned that victims were actually empowered by this ability to choose, both by the leverage it gave them in their dealings with the offender, and by the alliance they formed with criminal justice practitioners and advocates whose own actions reaffirmed to the offender the legitimacy of the victim’s complaint.
The curiosity is: despite these almost 20-year-old findings, many jurisdictions today still have mandatory no-drop policies in effect, and many victim advocates still intuitively believe such policies are needed to protect battered women from further abuse.
We need to work harder, not only to expand our research in this critical area, but also to get research findings into the hands of policy makers so that research can be put into practice for the benefit of the victims. That is one of our goals for the National Institute of Justice, which in fact funded the original Indianapolis study – and I know that its Director, Sarah Hart, shares my fervor for evidence-based policymaking and for making our research relevant to practitioners and policymakers, so they can in fact base their policy decisions on evidence of effectiveness.
We need to improve other policies, as well. For example, courts should develop specific conditions for bail in domestic violence cases. The defendant’s prior record and record of failure to appear in court are essentially irrelevant in these cases. Instead, we need to develop standards for bail that take into account the risk of injury to the victim or others in the community if the defendant is released.
In Indiana, for example, the state constitution requires that every defendant, except in cases of murder or treason, must be given an opportunity to post bail. We couldn’t persuade the legislature to support an amendment to the State Constitution, but we were able to get legislation passed that requires the court, in setting the amount of bail, to take into consideration the risk the release poses to persons in the community. This is an important safeguard for victims of domestic violence.
NIJ is looking at whether we should be developing a risk assessment instrument for bail decisions specific to domestic violence cases, and imposing specific additional conditions on the defendant to help protect the victim during the pre-trial period.
And of course, the Bush Administration is strongly committed to the passage of the Victims’ Rights Amendment, and the Department of Justice has worked closely with Members of Congress to develop language which we believe is strong and will be effective. But again, while this helps those who have already been victimized navigate the system, we want to help prevent victimization in the first place.
One way in which we are concentrating on crime prevention is through focusing on a specific population at highest risk of offending: those convicted of violent crimes who are returning to their communities after serving their prison sentences. The Bureau of Justice Statistics has found that this particular population recidivates at a rate of 67% – over 2/3 – in the first 3 years following their release. And the recidivism rate is in the 90th percentile within the first 5 years following release. These people pose the greatest crime threat to the communities to which they return, of any population – and they are easily identifiable.
Earlier this year, we joined with several other agencies of the federal government (including the Departments of Labor, HHS, HUD and Education) to issue a solicitation to all the states and territories, inviting them to set up a collaborative violent offender re-entry program. We specifically did not give these communities the choice of dealing with a less serious population. We wanted them to deal with the most serious problem they have: violent criminals.
We have tried to give communities the tools to pull together all the assets at their command, to develop a holistic approach which will place the ex-offender under strict supervision, while also providing him with the job and life skills training and placement, drug treatment, education and other services that he needs in order to live a productive, crime-free life. This means he will be subject in many cases to electronic monitoring and regular drug testing, and possibly frequent court appearances to check on his progress; but he will also be provided with the tools he needs to succeed.
His plan for success will be assisted, as well as monitored, by a team including his parole officer and Community Corrections personnel, as well as service providers. And in many communities, the faith-based community is stepping up to the plate, to provide the mentoring and support that so many of these returning offenders need to stay on the straight and narrow when the going gets tough.
Forty-nine states have received grants under this process, and are beginning to develop their collaborative projects. All will be required to do baseline measurement, and measure their success; and we will do a nationwide outcome measurement project through NIJ. We need to identify what approaches work best to reduce future violence, and then seek to replicate those throughout the country, both to protect society and to give these offenders a chance to live productive lives.
This raises an interesting issue which is currently under discussion in many parts of the country: our existing ability to use geo-positioning technology to do a better job of monitoring offenders. The geo-positioning technology can not only make us more effective in monitoring an offender’s activities, but can also make it possible for him to live a relatively normal life in the community to which he has returned, as long as he follows the rules.
This may be one of the great opportunities to serve both the protection and rehabilitation functions which is now available to us. The offender can go to his job, or to job training; to drug abuse treatment; to church. However, the GPS system can detect immediately if he is violating the terms of a stay-away or no-contact order, and can act promptly to correct him and stop him before he, for example, goes to the ex-wife’s house where he is not permitted to be. It is even possible to build in an automatic warning system that will activate when he gets within a certain distance of a prohibited location.
Facial recognition technology, while still in the developmental stages, can be key in terms of identifying people in large crowds who may be known terrorists and about whom we have certain intelligence indicating that they wish to do harm. Other available technology is being examined for its usefulness in identifying a foreign object, such as a gun, under a person’s shirt, from a distance. You can see the potential benefits of this technology, both in protecting the public and in safeguarding the security officer or police officer responsible for weapons detection, whether at an airport or in a more open public setting.
Logan Airport in Boston, I understand, has recently installed scanners that can check the authenticity of drivers’ licenses and passports and can also check the bearers’ names against government “watch lists”. Further, the technology has the capacity to generate lists, with photos, of which persons’ documents were checked, and when. Initially, Logan determined they would only use the technology on airport workers, as they were concerned about the potential for complaints of civil liberties violations.
But this raises the question: since the use of such technology would certainly enhance the safety of air travel, and thus protect individual law-abiding citizens and visitors to our country from victimization, is it worth the civil liberties trade-off which may be implied by its use? Or is there really a trade-off involved at all? We must examine these questions as a society.
I read an article just this past weekend in a Knight Ridder newspaper, quoting scientists at the University of Pennsylvania as saying that brain scan technology now exists that can reveal when a person recognizes a familiar face, no matter how hard he tries to conceal it. The technology is referred to as a “functional MRI”, and apparently has the potential not only to function as a lie detector, but even, according to one scientist, could “be used to pick up brain abnormalities that he says characterize [persons who are] prone to violence.”
The article made it clear that, while such technology would be exceedingly helpful in criminal interrogations, its potential for mining the deepest thoughts of individuals is, potentially, frightening. We must continue to keep in mind that, while we believe our primary obligation is to protect the public from predators, it is critical that we do so in a way that respects privacy and individual liberties.
Here’s an area in which today’s new technology is absolutely critical. As we seek to confront the terrorist threat, we are seeking to expand exponentially the intelligence data available to those whose job it is to protect us. But the amount of information out there is essentially limitless, and has changed the face of intelligence analysis. The Director of the National Security Agency, testifying recently before the Joint Intelligence Committees of the U.S. Senate and House, said that in just 10 years, the number of computers has expanded from perhaps hundreds of thousands to hundreds of millions; cell phone usage has exploded; and there is simply a huge growth of communications of all sorts, in various languages. It is no wonder that it is difficult for our traditional intelligence analysts to “connect the dots”.
The only way the protectors of our society can hope to sift through and analyze all that information, as well as all the information gathered in more traditional ways by our own intelligence agents and those of other countries, is data mining technology. This technology is available, and its use is critical. We at the Office of Justice Programs are working with a number of law enforcement entities, at all levels, using the Regional Information Sharing Systems (RISS) as the backbone, to bring together for law enforcement purposes various databases of all types, and use data mining technology to cull out the critical information which will, we hope, save lives in this country.
Data analysis is currently underutilized by law enforcement for the purpose of preventing traditional criminals from victimizing our law-abiding citizens, but I think we have the potential for incredible advances in this area.
An extremely effective example of the use of data analysis for strategic policing is what is known in New York City as Compstat, and which was instituted by former Mayor Rudy Giuliani with the help of then-Police Commissioner Bratton shortly after the Mayor was first elected. This was essentially a performance measurement tool, applied bit by bit to various aspects of policing, and to which I believe the incredible drop in crime in New York City over the last decade is primarily attributable. Naturally, the approach of performance measurement, and the personal accountability of supervisors as well as line officers for crime suppression, was resisted by officers wedded to the previous status quo. These officers were convinced that the City of New York was simply ungovernable. But that turned out not to be the case.
Interestingly, in New York, as Compstat became a way of life, the performance measures were expanded to include, for example, police conduct, including their treatment of citizens. So, while crime dropped, police shootings also were reduced precipitously, and citizen complaints about police conduct dropped as well. After that, they decided that if it worked on the streets, it should work in the prisons; so they extended Compstat to the New York Corrections system. They found that they could drastically reduce acts of violence within the prisons, and even predict and plan for potential prison uprisings, by analyzing various statistical measures and determining what they represented. They proceeded to apply performance measures and incentives to the foster care system, resulting in permanency plans for abused children who previously had drifted for years from one foster home to another.
Many communities have employed Compstat for themselves. I am looking forward to developing more information about what makes it work for some communities in suppressing crime, and if it doesn’t work in others, why not. Then we must be active in providing this information to law enforcement practitioners. After all, we are in the business of crime prevention, not just investigation and prosecution.
Finally: if there is any single area of technology that holds the promise of actually saving lives as it prevents new crimes from occurring, as well as ensuring the accuracy of the system so that we avoid mistaken convictions, it is DNA technology, the full potential of which is really just beginning to be tapped.
While as a society we are racing to catch up (for example, while we solve 100-150 crimes a week through DNA technology, Great Britain solves 500 per week), we can see on the horizon the seismic shift in criminal justice that the full deployment of DNA technology will cause.
The strategic use of our DNA capabilities, as a nation, can help us to do a better job – to convict the truly guilty, to avoid convicting the innocent in the first place, and actually to save lives by solving crimes earlier. Richard Evonitz is the man who recently killed himself in Florida as authorities were closing in on him for the kidnapping and rape of a 15-year-old girl from South Carolina. When his apartment was searched, evidence was found which linked him to the murders of three other young girls. It is believed that DNA evidence will prove that he in fact committed all three murders. Had authorities been able to obtain a DNA sample at an earlier point, they might actually have saved at least two of those three young lives, and prevented the rape of the young South Carolina girl. And this is our hope for the future -- that by obtaining DNA samples, both from offender and crime scene, promptly analyzing them, and getting them all into a database, we will actually save lives by solving crimes sooner.
At the Office of Justice Programs, through the National Institute of Justice, we’re working hard to increase the capacity of crime labs around the country to conduct DNA and other forensic analysis; we are funding DNA backlog elimination -- both in the offender databases and in crime scene evidence; we are working to get all convicted offender DNA profiles in the FBI’s nationwide database, which is being expanded through additional funding; and we are engaged in technological research to reduce the cost and increase the speed of DNA testing; so that communities around the country will be able to solve more crimes, earlier and more accurately than ever before. This, in turn, will help judges and juries make more reasoned decisions, and will result in the right people being convicted and incapacitated.
Legislatures are passing laws at a rapid pace, to increase their own states’ databases. We will be developing some crime trend information, as well as model legislation, to assist those legislatures in addressing key issues, such as:
When used to its full potential, DNA evidence can prevent some of the nation’s most serious violent crimes. For example, violent criminals who eventually prove to be serial murderers could be stopped from committing these future crimes if they were required to provide a DNA database sample after committing their first crime. Investigators could then link their DNA profile to evidence found at later crime scenes and apprehend them more quickly. Think about Richard Evonitz, who killed three young girls and continued to rape unti l the police finally closed in on him.
DNA as a law enforcement tool is especially critical to solving the tens of thousands of stranger rapes and sexual assaults and the many child abductions and murders committed each year. Given that the average child molester will victimize more than 70 victims in his lifetime1, and that a high percentage of rapes are committed against children under the age of 18, this technology must be maximized to protect all citizens, and especially our nation’s youth.
Unfortunately, as a nation, we currently lack the capacity to maximize the use of this technology. Hundreds of thousands of rape kits sit unanalyzed on shelves of crime labs throughout the country, as the rapists continue to victimize. We release violent offenders from prison without getting a DNA sample, or we don’t get the sample into the database; or the police are ill-equipped to gather DNA samples from crime scenes to match with it.
Our National Institute of Justice at OJP is working on all of these fronts. We will soon have available to local police departments portable technology for recovery of DNA from crime scenes, which can be quickly plugged into a computer modem for comparison with the national database. As I said, we’re putting tens of millions per year into backlog reduction and crime lab capacity improvement, and this year the Attorney General supplemented our budget for backlog reduction with a transfer of an additional $25 million from the Asset Forfeiture Fund.
We will continue to focus on all aspects of DNA, until we can bring all our labs and all our police departments to the point of being capable of immediate and professional recovery of crime scene DNA and comparison to a vast national database. This is the ultimate way to protect the public, to actually prevent victimization – indeed, to save lives. And we will continue to focus our resources on this technology of the future.
It has been a pleasure and an honor to discuss with you today our approach at the Department of Justice to the protection of the people of this great nation. Thank you for the opportunity to be with you.