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Brookline TAB
Brookline, Massachusetts

Reprinted
Justice Xpress
Winter 2003

Uncertain Certainty

Dennis Fox

October 9, 2003

Maybe I believed in scientific perfection when I first took the subway to New York's Stuyvesant High, a public school for students interested in science and math. I graduated, paradoxically, less enthralled by science's core. During those years, while we raced to beat the Russians to the moon, my science-fiction reading interests also changed, from gee-whiz futuristic marvels to the aftermath of scientific and political miscalculation.

Today I wonder: Do policymakers who claim that some policy or practice will work perfectly really believe what they say, or are their pseudo-scientific rants always spawned by ulterior motives? Three issues come to mind.

First, Governor Mitt Romney wants to create a Massachusetts death penalty statute to scientifically guarantee only guilty people are executed. "Guarantee" as in fool-proof. Absolute. No exceptions. To achieve perfection, the Gov's new Council on Capital Punishment will consider how to incorporate DNA and other evidence into death-penalty trials to allow "a standard of proof that is incontrovertible."

Surely his appointees know that no such standard can be met.

Yet in comments to the Boston Globe, legal expert Joseph Hoffman, one of Romney's appointees, suggests that one approach might assess DNA evidence after a jury has already found a defendant guilty of murder beyond a reasonable doubt. Along with determining aggravating and mitigating circumstances, the jury would listen to arguments about the scientific evidence and then answer the question "Do you have any doubt at all about the defendant's guilt?"

One problem is that jurors who have found someone guilty beyond a reasonable doubt will unlikely decide later they were wrong. The distinction between the two standards -- "beyond a reasonable doubt" and "virtual certainty" -- makes more sense on paper than it will in jurors' minds.

DNA testing has improved enough to sometimes raise reasonable doubt that prosecutors have charged the right person with a crime. That's one reason more convicted defendants in recent years have had their convictions overturned. Yet it's ludicrous to suggest the opposite: that DNA evidence can convict someone with zero chance of error. Every test makes mistakes. And police still sometimes plant evidence, labs sometimes mishandle it, and witnesses and prosecutors sometimes lie about it.

Romney's plan has other problems. Focusing on cases where the killer's identity is uncertain also makes the death penalty more likely when identity isn't an issue; if that's what Romney wants, he should fight that battle on its merits. Moreover, focusing on evidence in single cases ignores our system's failure to apply laws -- and provide adequate defense resources -- fairly.

A second example of politically motivated scientific hubris comes from last week's federal decision allowing Boston University to build the nation's fourth high-security bioterror defense laboratory in downtown Boston. Will the lab's weaponized anthrax, Ebola virus, and smallpox someday escape into South End, Roxbury, and Chinatown streets, unleashing mass hysteria at best and mass death at worst? Well, probably not. But is there any real guarantee?

Federal and local decision makers just shrug off worried residents and other critics. The Biosafety Level 4 lab will be completely safe, they insist. Indeed, the Globe's lab drawing showed filters, airlocks, showers, pressure drops, and other technological safeguards. But I saw no discussion of how officials will ensure no one allowed inside will later turn out to be dangerous, or how the building might stand up to an off-course or well-aimed jetliner, armed attack, or other possibilities suggested less by science fiction than by recent events.

The third example of proffered perfection is less physically deadly but more widespread. Last year's federal No Child Left Behind Act declares that every child in America will be proficient in reading and math by 2014. Every student. Every single one.

Really.

That impossible goal can be achieved only if schools either redefine "proficient" to meaninglessness or force out of school students unlikely to reach proficiency. As it happens, in one state after another both responses are now underway. My guess is that somewhere around 2010 the feds will delay the deadline to 2025. In the meantime, pressures to follow the dishonest plan have already begun to cause the inevitable damage.

Politicians who promise perfection are either liars or fools. About that I'm perfectly certain.


Note: this version may differ from the published version.

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