Myth of Technology as an Equalizing Force in Criminal Justice
Since the rise of social media and ever-present cellphones with cameras, the narrative around these developments has been that justice is rapidly democratizing.
While many law enforcement failures and abuses have been exposed by citizens with technology, this trend is not the case for all technology. “Access to digital forensics can mean the difference between exoneration and prison time,” reports The Appeal.
For instance, DNA technology is (mistakenly) regarded as a neutral form of incontrovertible proof. But this perception ignores asymmetries in resources and incentives between prosecutors and defense counsel. Prosecutors regularly oppose testing samples that can exonerate people, including people scheduled to be executed.
DNA evidence has now opened up to unregulated use of genealogy databases by law enforcement to track suspects. Policies vary from agency to agency, and some, like the Orlando Police Department, have no policies at all.
“In California, an innocent twin was jailed. In Texas, police met search guidelines by classifying a case as sexual assault but after an arrest filed charges of burglary,” according to Paige St. John of the Los Angeles Times.
The Black Lives Matter movement has been successful at advocating for the use of body cameras for police, but often policy favors law enforcement over citizens when such footage is released, if it is.
According to lead policy counsel Michael Sisitzky of the New York Civil Liberties Union, the New York Police Department guidelines “show the department still doesn’t fundamentally understand the reason for equipping officers with body cameras in the first place” and that “the NYPD is using body cameras as just another tool to benefit law enforcement.”
Social media companies are often subpoenaed by prosecutors to obtain incriminating evidence on a person, including their physical location history. But because of an omission in the Stored Communications Act of 1986, defense counsel cannot subpoena similar information.
Companies say users can access content through other routes.
To quote a Washington, D.C., public defender: Good luck asking someone to let you review their private social media so you can prove they were the one actually responsible for a crime.”