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Dan Fahnestock, DNA technical leader for the St. Charles Sheriff's Department crime lab in June. The accuracy of crime lab results and accountability of forensic experts will make news in 2016.
Commentary

Next Year in Criminal Justice

Three themes that will trend, three that won’t

Curating The Marshall Project’s “Opening Statement” a few hundred times this year has allowed me to read, or at least skim, about 10,000 crime and justice stories in 2015. That doesn’t make me an expert on crime and punishment in America, but it did give me a strong sense of how journalists are covering criminal justice stories these days and, presumably, what topics interest readers.

There were some justice stories this past year — like the increased use of police body cameras — that obviously will be around in the coming years. Indeed, the public debate over how the videos from those cameras are to be viewed is just starting. And there were other stories in 2015 — like President Obama’s visit to a federal prison in Oklahoma this summer — that just as clearly are one-time events.

The challenge at the end of any year on any beat is to make sense of the great majority of stories that fall somewhere in the middle. What’s going to “trend” in 2016 in criminal justice, and what’s not, and how can anyone possibly tell? Here are my best guesses organized into two categories. Themes and topics I think you’ll be hearing a great deal about in 2016. And stories you’ve heard a lot about this past year that might for one reason or another recede from the headlines. Y’all can remind me next December about how right or wrong I was.

Three themes that will rise in 2016:

Junk science and the unreliability of crime labs could be the scandal of the decade

If I were an assignment editor and could assign one bright reporter to one single beat in criminal justice in 2016 it would be the continuing (and I think quickening) fallout from the latest generation of crime lab scandals around the country. Not only is “junk science” itself on the defensive in courtrooms but the very premise of these labs — that they produce accurate, reliable scientific conclusions from dispassionate professionals with no stake in the outcome of criminal cases — is now being aggressively questioned by reasonable minds within our justice systems.

We now know, for example, even if most juries do not, that the “scientists” in many of these labs are paid only for convictions but not acquittals, an incentive that surely is part of the problem. How many convictions are tainted? Hundreds? Thousands? Tens of thousands? No one knows. How worried are officials? Plenty. Even the Justice Department has roused itselfwith a plan (a slow plan) to use only accredited labs. Why such a plan hasn’t been put in place sooner is a question someone can try to get answered in 2016.

Solitary confinement persists despite good publicity for reformers

One gets the sense reading some of the coverage about solitary confinement that 2015 is seen as a watershed; the year when a critical mass of politicians, judges, and corrections officials in jurisdictions across the country realized that solitary confinement as practiced not only was unlawful but also self-defeating. I am not sure this is so, at least not to the extent the reformers in and out of government would like you to believe. The truth is that officials in some states are still holding men and women (and children) for long stretches in isolation without clear legal justification.

Take New York, for example, where the number of people held in solitary confinement is reportedly the highest it’s been in three years. Mississippi also has regressed. Maine plans to use solitary to punish free expression by inmates. And so on. Supreme Court Justice Anthony Kennedy made headlines in 2015 when he denounced solitary confinement. Don’t be surprised if the Court takes a core Eighth Amendment case in 2016 that permits Justice Kennedy (and the Court’s four liberal justices) to formally restrict the use of isolated detention.

Voting rights and ex-offenders leading up to the election

In the presidential election year to come, the bipartisan movement to bring ex-offenders back into society’s mainstream will run headlong into the hyper-partisan movement to restrict minority voting rights. The clash of those two contradictory movements — say, in Florida, where felony disenfranchisement is rampant and getting worse — could make for some of the most contentious criminal justice disputes in the months ahead. Approximately 5.9 million American citizens can’t vote because of a past felony conviction, including 1 out of every 13 black Americans, and you can bet that fact will fuel a few notable court cases before Election Day.

Three themes that will fade in 2016:

Federal sentencing reform, for now, is dying a slow, tortured death

Here is something tangible for which you can reasonably blame Donald Trump. His fierce anti-immigration rhetoric, and his fierce defense of the police in the face of “Black Lives Matter” protesters, pushed his putative party to the right just far enough on criminal justice so as to effectively scuttle sentencing reform on Capitol Hill for the moment. Yes, I know, there is still bipartisan reform legislation pending, and it has passed the judiciary committees on both sides of Capitol Hill. But the closer we get to primary season, the less likely substantive floor votes on those measures become.

Speaking of sentencing: The fact that line prosecutors are widely ignoring Justice Department guidelines about mandatory minimums is a story that merits (and will get) more attention next year.

The Supreme Court won’t end the death penalty

The United States Supreme Court as presently constituted is almost certainly not going to abolish the death penalty, no matter how hard abolitionists pray such a thing comes to pass, no matter how many viable cases come before the Court. There have been many opportunities for five or more justices to signal their willingness to explore the core issues surrounding the death penalty, both before and after Justice Breyer’s dissent in Glossip v. Gross last June, and they have consistently chosen not to do so. There is no reason to think that is going to change in 2016.

That doesn’t mean the Court won’t show a little more vigor than usual in whittling down the scope of capital punishment or ensuring that its application is less racially biased. There are plenty of ways in which the justices could make the death penalty more fair and reliable-- by limiting state secrecy laws that block basic information about execution drugs, for example, or by simply requiring only unanimous jury verdicts in capital cases. The big news on capital punishment in 2016 will come insead from states like Nebraska and California where well-funded grassroots efforts are trying to rescue the death penalty from the local scrapheap.

Police unions, and legal immunity for misconduct, aren’t going to crumble

Many of us learned in 2015 the extent to which police unions (and the contracts they demand) block the pace of accountability in policing. We also were reminded of the role that the legal doctrine of immunity has in protecting both police and prosecutors from the sort of accountability most of us would consider reasonable in cases of obvious brutality or abuse. But those of you who figured that the relentless stream of news about police and prosecutorial abuse in 2015 would continue to spawn police and prosecutorial reform in 2016 are likely to be disappointed. Police unions and their many supporters will dig in during the coming election year and judges and politicians will continue to be reluctant to limit the scope of immunity for bad cops and prosecutors.