August 30, 2014
Every so often, something happens that renews calls in this country for scientists within the federal government to have more unfettered rights to speak to media. This past week, it was the nearly comical number of layers of bureaucracy through which a request to hold a media briefing on the extent of Arctic ice erosion needed to pass. Previously, we’ve seen similar calls motivated by differences between Canadian and U.S. standards with respect to publication of research results or the presence of so-called minders at scientific conferences. I’ve hesitated to write on this despite often engaging in heated discussions on the subject, both on Twitter and in less virtual environments, because it’s not my area of expertise. It’s still not an area in which I have any formal training, and my experience is limited, but I feel that I can comment on some aspects of the debate based on the time I spent on sabbatical at Environment Canada, a department frequently attacked for the so-called muzzling of scientists.
The basic arguments in favour of loosening the controls on government scientists to speak to media often follow from one of two points: either that the research is publicly funded, and so should be accessible to the public; or, that making researchers available to the media would show that the government is hiding evidence that might otherwise undermine its policy agenda. For example, when interviewed at a protest by scientists on Parliament Hill last year, University of Ottawa professor Jeremy Kerrstated that, “the facts do not change just because the Harper government has chosen ignorance over evidence and ideology over honesty.” That’s certainly accurate, at least insofar as the facts being generally invariant to the will of the Prime Minister, but the government of Canada has no monopoly over the facts—there are plenty of entities, government-funded and otherwise, that can do a fine job of holding the government to account externally, as professor Kerr’s comments to the Star illustrate.
For me, the key questions are whether government researchers should, themselves, be able to speak out when they feel a government policy does not align with the evidence and, if so, why we would only restrict that to a particular class of government researchers? To speak out publicly against government policy is, by the current definition, fundamentally at odds with the role of a public servant in our democracy. Public servants are expected to provide impartial advice to the policy development process and loyal implementation of government policies once decisions are taken. They are not supposed to critique that policy publicly when it doesn’t align with their interpretation of the evidence or their beliefs with respect to how that evidence should be weighed. Allowing public servants to be openly critical of government decisions – whether based on scientific evidence or any other criteria – turns the relationship between the bureaucracy and their democratically elected masters on its head, undermining the trust essential to an effective working relationship.
Many would like to have you believe that there are issues for which we could live in a technocracy—where the science speaks so clearly as to the correct policy that there is no role for any other factors. I can’t think of a single instance where that would be so. Often-cited in debates on the muzzling of scientists is my University of Alberta colleague David Schindler and his ground-breaking work at the Experimental Lakes Area. What did that research tell us? It made clear, for the first time, the link between human activity, in particular industrial sulphur emissions and nutrient effluent from agriculture, and the health of lake ecosystems. It told us about the damages from pollution and was some of the most important and policy-relevant pieces of scientific work in this country’s history. What Dr. Schindler’s research alone could not tell us is what we should do about it. It did not tell us what costs we should be willing to impose on industry to prevent these damages, it did not tell us how Canadian economic activity, trade, and employment would react if certain policies were imposed, nor did it tell us how Canadians would prioritize expenses to defray these damages versus other potential uses of government and private sector resources. In other words, it gave us an important piece of the policy puzzle, but not the entire picture. You can’t prove, with science alone, what the policy should be—science isn’t normative—but only what is and what will be if you take a particular action.
In a policy department like Environment Canada, policy decisions are made through a process that involves bureaucrats from different disciplines including scientists, engineers and economists. Senior bureaucrats interact with the minister’s office, with central agencies like the Department of Finance, and with the Privy Council Office, which acts as the bureaucratic liaison to the Prime Minister’s Office. When a policy proposal is on the table, there are different opportunities for arguments to be made, decisions to be challenged, and evidence to be presented. As an economist visiting Environment Canada for the year, I was fortunate to participate in briefings at every level and to be given the opportunity to present evidence on occasion. Sometimes, that evidence carried the day. Sometimes, I came out of a briefing feeling that I’d lost—that economic evidence as to the best policy option, data on the cost of taking one action over another, or predictions of the likely outcome had been ignored in favour of evidence presented by others. In most cases, it hadn’t been ignored, but it just hadn’t been given the weight I thought it should. You might imagine that it was always those with the lab coats pushing stronger action, while the economists pushed for weaker action. It wasn’t. At the end of the day, senior public servants and elected officials did what they were paid to do: they weighed the evidence and made decisions.
The way the unmuzzlers would have you believe that the system should work is that, when senior public servants or elected officials take a decision with which the scientists in the room do not agree, these scientists should — and it is largely those in the “hard” sciences that the unmuzzlers are talking about — because they are on the side of the evidence, be free to speak up and to contest that decision in the public arena. The problem with that, as I see it, is that those with the lab coats do not have a monopoly on evidence: across the federal government, there are a variety of public servants collecting and compiling data, conducting experiments, testing hypotheses, developing numerical models, and the like. Some are scientists in the conventional sense of the word (i.e. they wear lab coats) while some are economists, sociologists, statisticians, and engineers. It’s impossible to draw clear lines between what is “scientific evidence” presented to senior decision makers and what is not.
Let’s imagine the government is considering a regulation on an industrial sector and, based on the evidence presented, senior decision-makers conclude that the costs in terms of reduced output, employment, and value-added of enacting stringent regulation are justified based on the benefits to the ecosystem and/or to human health presented by the scientists (in this caricature, you can imagine the scientists wearing their lab coats in the briefing if you prefer). Now suppose that one of the experts involved—an economist in a central agency, for the sake of this caricature—decides that this decision is simply inconsistent with the evidence he or she presented. Suppose he or she decided that, if only the Canadian people were made aware of this economic evidence, they too would side with a “weaker” policy response. Clearly, it’s in the public interest to drop a brown envelope on someone’s doorstep so that the headlines the next morning might read something like, “Government considering regulation that would halt oil sands development, cost thousands of jobs,” with the story crediting an anonymous government economist privy to the discussions, right? That would push the government to make the right decision.
In the caricature I’ve presented, the evidence would all be accurate, but it would be one-sided: the article in the newspaper would show you all of the costs of the policy and none of the benefits. The implication would be clear: that the government had ignored all these costs in reaching its decision, and Canadians should be outraged. The implication would also be entirely false. All that heroic economist would have done with his or her actions would have been to tilt the decision-making process toward their preferred weighing of the evidence. Would it be any different if the decision had gone the other way, toward the less stringent policy, and it were the scientist, clad as ever in his or her lab coat, dropping off the brown envelopes? I think not.
Should we have more open government science? Perhaps. I think the better question is to what degree government-supported research should take place in arms-length agencies (the U.S. model for agencies like NASA and the Energy Information Administration come to mind) or outsourced to universities via government granting agencies as opposed to being housed in policy departments. Research housed outside of government departments would allow elected and bureaucratic offices to determine which questions are being asked by researchers or which subject areas are being explored without having influence over the answers or controlling the message. It would also mean that researchers were not privy to the policy discussions of the day and would not necessarily be involved when their research is used to support a decision. There are also options within the public service: perhaps Statistics Canada could broaden its role to collect and publish more environmental statistics such as the sea ice coverage, which was the subject of so much consternation this week, perhaps absorbing some of the functions now performed within Environment Canada. In the same way in which no one would ask a Statistics Canada official what government should do to combat youth unemployment or to raise median incomes when those data are published, no one would ask whether the extent of sea ice coverage should influence our climate change policy choices. When you’re asking officials from the department with jurisdiction over both our domestic climate change policies and our intervention in international climate change negotiations about sea ice coverage, the implications are very different. The questions to the scientist might even be policy-neutral, but I expect most of the resulting articles would not be.
If you want to take the muzzle off government researchers, that’s fine if you want it for the right reasons. I’m all in favour of increasing the quality of information available both to our decision-makers and to the general public. However, we must do it without skewing the policy process. The only way to make sure that’s true if you want open access to researchers is to disconnect those undertaking primary and policy-relevant research from that process and from those departments. Whether that’s best done through arms-length institutions, through universities, or through agencies such as Statistics Canada is a topic for debate. Of course, there are some topics of current government research not suited to open inquiry, for a variety of reasons. Maybe you’re willing to sacrifice some of those topics for access to information? You might also find that some of our government’s best researchers prefer their seat at the policy table to the front pages of the newspaper. Maybe that’s a sacrifice you’re willing to make? Unfortunately, I doubt you’ll be able to rely on anyone in a lab coat to tell you with certainty which is best for the country.
On the other hand, if your reason for removing the muzzle is because you think policy decisions need to be skewed or the government needs to be challenged, then there’s a better process for that that doesn’t involve sacrificing our public service. Rumour has it it will happen next October, if not sooner.
August 29, 2014
Was a police officer justified in shooting and killing Michael Brown? That’s the question at the heart of the looming legal battles over the controversial case.
What charges could Ferguson Police Officer Darren Wilson face? What would state and federal authorities have to prove in order to pursue charges? And does the fact that the gunman was a police officer change how the case could play out?
Here’s a look at what legal analysts say could happen next.
Was a state crime committed?
A local grand jury has started hearing testimony, but that doesn’t mean any particular charges are being recommended by prosecutors at this point, CNN senior legal analyst Jeffrey Toobin said.
“An investigation is just an investigation. … It’s just something that they’re looking into,” Toobin said.
For a criminal case to go forward, the grand jury must decide whether a crime was committed, and whether it’s more likely than not that the accused person — in this case, Wilson — committed the crime, said CNN legal analyst Sunny Hostin, a former federal prosecutor.
After a fatal shooting, a range of charges are typically on the table, said CNN legal analyst Danny Cevallos, a criminal defense attorney. “They’re going to be anything in the spectrum of murder, manslaughter (or) negligent homicide,” he said.
The prosecutor will make a recommendation to the grand jury.
From there, the grand jury could decide to indict Wilson, or that there isn’t enough evidence to move forward. In order to bring charges against Wilson, nine of 12 jurors will have to agree.
But the prosecutor plays a key role in the hearings, which are not open to the public.
“The grand jury ultimately decides whether to indict, but it’s 100% the prosecution’s show. … The prosecutor could, in theory, make less of an effort if he doesn’t want someone indicted,” Cevallos said.
Some residents and community leaders contend St. Louis County Prosecuting Attorney Robert McCulloch has deep ties to the police and has favored law enforcement in criminal cases.
J.Tom Morgan, a former district attorney in Georgia who knows McCulloch, defended him as fair and objective.
“I believe Mr. McCulloch will present the facts and the evidence to the grand jury and the Missouri law as he is required to do so,” Morgan said. “We do not put defendants on trial just to see what a jury will do.”
Were Brown’s civil rights violated?
As part of a federal civil rights investigation, authorities are interviewing witnesses and weighing a number of factors.
Key among them: whether Wilson exhibited “racial hostility,” Toobin said.
“The most important thing would be, did he say anything that indicates racial hostility, either before, or after, or during (the shooting)?” Toobin said.
Wilson is white, and Brown was African-American.
“The bar is very high,” Hostin said, “and they’re difficult cases to prove.”
But race doesn’t have to be a factor in the shooting for investigators to allege there was a federal civil rights violation, Cevallos said.
Federal statute says it’s a crime for government officials “to willfully deprive a person of a right or privilege protected by the Constitution.”
Federal prosecutors could argue that Brown’s right to life was violated, Cevallos said, but it’s a tough case to make.
“They have to show that the officer intended to deprive somebody of that constitutional right. They would have to show intent to kill…which is not a particularly easy showing to make,” he said.
When can police use deadly force?
The fact that Wilson is a police officer could influence whether he faces charges — and how the case plays out.
“Often jurors are extremely sympathetic to police officers,” said Paul Butler, a professor at Georgetown University Law School and a former federal prosecutor. “They think, even if he made a mistake, he’s got the hardest job in the world, so they often want to cut police officers some slack.”
Authorities also weigh different factors when deciding to prosecute police.
“There are issues that come up when you’re prosecuting cases against police officers, because police officers by the very nature of their jobs can use deadly force,” Hostin said.
Police officers have the same rights civilians have to self defense, Cevallos said, and they also have the right to make arrests.
“To do that,” he said, “they can use deadly force to prevent an escape.”
If Brown was trying to get away from the officer, Cevallos said, the Supreme Court case Tennessee v. Garner allows the use of deadly force when an alleged felon is trying to flee if “the suspect poses a significant threat of death or serious physical injury to the officer or others.”
But given the number of times Brown was shot, along with newly released audio that may show a pause in rapid gunfire, Wilson has a lot of explaining to do, the analysts said.
“Evidence suggests that he wasn’t fleeing and was facing the officer,” Cevallos said. “If that’s true … the officer has to explain six shots. He has to explain a reason for each of those six shots. He has to have justifiably been in fear of his life or fear of some imminent serious bodily harm.”
By Catherine E. Shoichet
CNN’s Jake Tapper, Deborah Feyerick, Holly Yan, Greg Botelho, Eliott C. McLaughlin, Leigh Ann Caldwell and Rick Martin contributed to this report.