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Just Released: Preliminary Draft of Criminal Justice and Forensic Science Reform Act

This evening the office of Senator Patrick Leahy (D-Vermont), Chair of the Senate Judiciary Committee, released the preliminary draft of the legislation the Senator intends to introduce in the new congress. Senator Leahy’s staff advised that there may be minor adjustments to the legislation before it is introduced, but the core of the bill will remain the same.

However, as with all legislation, this is merely the beginning of the process and there will be opportunities for significant changes along the way as the bill makes its way through congress, which Senator Leahy’s staff also stressed.

The short name of the bill is the Criminal Justice and Forensic Science Reform Act (CJFSRA) (full text). This version kept some things from the Draft Legislation of May 2010, but has really moved toward incorporating a lot more stringent regulations and inclusion of other stakeholders and voices from other areas of the world of science.

Some notable items on my first read-through of the bill:

  • The bill establishes three basic operating structures: the Office of Forensic Science, the Forensic Science Board, and Committees.
  • The Office of Forensic Science
    • This is the office with all the final decision making power.
    • Based out of the Office of the Deputy Attorney General
    • The Director will be appointed by the Attorney General
    • The Deputy Director (who seems to have a lot of power) will be a NIST employee, appointed by the Director of NIST.
    • Almost all staff are NIST employees.
  • Forensic Science Board
    • Completely advisory, but they advise on everything; recommendations can be approved, modified, or rejected by Director and Deputy Director of Office of Forensic Science.
    • 19 Members appointed by the President
    • Meets no less than 4 times per year
    • Membership
      • At least 10 members with “comprehensive scientific backgrounds”, of which
        • At least 5 must have “extensive experience or background in scientific research”, and
        • At least 5 must have “extensive experience or background in forensic science”
      • At least one member from each of these groups:
        • Judges
        • Federal Government officials
        • State and local government officials
        • Prosecutors
        • Law enforcement officers
        • Criminal defense attorneys
        • Organizations that represent people who may have been wrongly convicted (e.g., Innocence Project)
        • Practitioners in forensic laboratories
        • State laboratory directors
        • The Director and Deputy Director of the Office of Forensic Science are ex-officio, non-voting members.
      • Terms are 6 years, 2 term limit
      • NO COMPENSATION EXCEPT TRAVEL EXPENSES
    • Duties
      • Make recommendations on everything (accreditation, certification, definitions, setting up committees, research priorities, etc.). Again, recommendations can be approved, modified, or rejected by Director and Deputy Director of Office of Forensic Science.
      • Make reports to congress every 2 years
    • One very noteworthy change from the Draft Legislation of May 2010:
      • In selecting the Board members, the CJFSRA instructs the President to

        “consider the need for the Board to exercise independent scientific judgment”

        and

        “consider, among other factors, recommendations from leading scientific organizations and leading professional organizations in the field of forensic science and other relevant fields”.

      • The Draft Legislation of May 2010 instructed only that “The President shall appoint members to a Forensic Science Commission (FSC) after reviewing recommendations from the National Academy of Sciences and the American Academy of Forensic Sciences.”
  • Committees
    • Recommended by Forensic Science Board to Director/Deputy Director of Office of Forensic Science for approval.
    • In the recommendation, Forensic Science Board also recommends relationship between Committee and existing SWGs/TWGs. Committees are separate from SWGs/TWGs.
    • Committees are “to examine research needs, standards, and best practices, and certification standards for the forensic science disciplines.”
    • Meet no less than 4 times per year
    • Membership
      • 9 Members
        • At least 5 members with “extensive experience or background in scientific research”
        • “A number of members” with a forensic science background so that the Committee has an understanding of the field of forensic science.
        • The Committee shall “have a membership that represents a variety of scientific disciplines, including the forensic sciences.”
      • Terms are 4 years, renewable
      • NO COMPENSATION EXCEPT TRAVEL EXPENSES

Other significant items:

  • Accreditation and certification will be mandatory for all labs receiving federal funding.
  • Accreditation and certification may be contracted out to one or more professional organizations once the accreditation and certification standards have been put into place. Development of accreditation and certification standards looks more promising than it did with the previous Draft Legislation… so far.
  • A brief mention to consider any “findings, surveys, and analyses relating to research in forensic science disciplines, including those made by the Subcommittee on Forensic Science” when “developing the initial research strategy, research priorities, and surveys required under this section.” There is a similar mention to consider the input of the Subcommittee regarding the code of ethics.
  • Proposed Grant Funding
    • $10,000,000 per year 2012 to 2016 to NIJ for grants to labs to prepare for accreditation and certification
    • $10,000,000 per year 2012 to 2016 to NIJ for grants for training judges and attorneys in forensic science topics
    • $90,000,000 per year 2012 to 2016 to NIST for grants for forensic science research

Pretty much all of the NAS Recommendations were covered, but the bill sort of peters out towards the end. It’s probably this part that is going to take some more work to get the details hammered out, in addition to the wrangling over the earlier pieces.

Medico-legal Death Investigation seems to get short shrift in this version of the bill, but hopefully that will also be figured out in greater detail later. This is an immensely important subject, it is a very complex subject, and it is something that the NAS Report spent quite a bit of time and effort. There are a lot of very good, very responsible people in medical examiners’ offices (yes, I realize I haven’t mentioned that before) but when they aren’t it is absolutely tragic. What jury is going to question the word of a doctor?

The Interoperability of Databases & Technologies is expanded from NAS Recommendation 12 of just the AFIS systems (latent prints) to include “interoperability among databases and technologies in each of the forensic science disciplines among all levels of Government, in all States, and with the private sector”- which is great- but the bill in its current form leaves the decision-making on that up to the Board and the Director of the Office of Forensic Science to plan and implement. In reality, it’s probably going to require an act of congress (literally) to get the AFIS vendors and others like them to play nice and pony up their data. But that will be a battle for another day.

Then there is the “Inter-Governmental Coordination” (NAS Recommendation 13). Here’s this bill’s entire contribution toward that effort:

The Board and the Director shall regularly—

(1) coordinate with relevant Federal agencies, including the National Science Foundation, the Department of Defense, and the National Institute of Health, as appropriate, to make efficient and appropriate use of research expertise and funding; and

(2) coordinate with the Department of Homeland Security and other relevant Federal agencies to determine ways in which the forensic science disciplines may assist in emergency preparedness.

I think that’s a white flag. Maybe a burly Republican will have some ideas on how to talk to the crew-cut types. Or Senator Jim Webb (D-Virginia).

One really good thing is that the bill requires a system to be set up for anonymous reporting for “any individual to provide information relating to compliance, or lack of compliance, with the requirements, standards, and regulations established under this Act, which may include a hotline or website that has appropriate guarantees of anonymity and confidentiality and protections for whistleblowers.”

Except for the absence of a group psychologist or a mediator for the Forensic Science Board and some other details, this bill looks pretty good. It signals the intent of Senator Leahy (again, the Chair of the Senate Judiciary Committee- the committee this bill is going to have to go through before it hits the floor) to include all stakeholders in the Brave New World of forensic science reform.

It also seems to signal the inclusion of those unfortunate fields of science that have been sheltered from the fascinating world of forensic science for far too long. I hope that my fellow forensic scientists will take these newbies under your wings and let them poke and prod and statisticize to their hearts’ content. Our fields will stand strong. They can give us error rates and tall stacks of research. We can introduce them to contact lenses, the scent of cadaverine, and the term “prison wallet”. It’ll be great.