TIME ebola

Here’s What Would Happen if Ebola Was Stolen From a Lab

Biohazard sticker on laboratory window
Adam Gault—OJO Images RF/Getty Images

The virus is considered a bioterrorism agent. But massive fines, jail time and a risk of deadly exposure may be enough of a deterrent

Scientists routinely study deadly pathogens like Ebola in order to find ways to fight them and discover potential cures. But what would happen if a sample of Ebola was taken from a lab illegally?

Under federal regulations, Ebola is considered a “select agent and toxin” that has the “potential to pose a severe threat to public health and safety,” and it’s illegal to possess, use or transfer a deadly pathogen to another individual without a certificate from the U.S. Department of Health and Human Services, says John Kraemer, an expert on infectious diseases and the law at Georgetown University’s Department of Health Systems Administration. Obtaining that certificate requires meeting a set of biosafety and biosecurity requirements. And the penalties for failing to do so can be steep.

The government has levied fines of hundreds of thousands of dollars to laboratories that have violated the select agent regulations. In 2008, HHS docked Texas A&M University $1 million for safety violations at its biodefense lab. Individuals who steal a disease sample could face similarly steep fines and time behind bars. Under federal law, HHS can fine a person up to $250,000 for each violation and can recommend imprisonment of up to five years.

But there is an additional layer of sensitivity to handling Ebola. The CDC considers viral hemorrhagic fevers, which includes Ebola, a Category A bioterrorism agent. And since 2001, several bioterrorism laws have strengthened criminal penalties against those who attempt to commandeer them. The Patriot Act in 2001 created a provision banning the transfer of a select agent like Ebola, and the Bioterrorism Act of 2002 gave more authority to the HHS to regulate those agents and diseases.

In September, the Obama administration issued new regulations for federally funded labs that work with contagious diseases like Ebola. Some researchers have criticized the guidelines as not being strong enough over fears that the pathogens, which are often made stronger in a lab, could potentially be used as bioweapons.

Kraemer says two scenarios could likely play out if Ebola samples fell into the wrong hands. If a researcher acquired Ebola for misguided research, for example, then they would likely get fined by HHS and could be sentenced to five years in prison.

“If however someone broke into a hospital to steal Ebola for some other reason, it’d be at least 10 years,” Kraemer says. “If someone acquires Ebola with an intent to weaponize it, then they can get life in prison. And, of course, if you actually use Ebola as a weapon, you can be prosecuted under federal anti-terrorism laws, with penalties up to the death penalty.”

Given the security required at labs authorized to handle potential biological weapons, as well as the risk that someone stealing a pathogen may also become infected by it, those latter scenarios are highly unlikely.

“Stealing an Ebola sample would be extremely dangerous because the thief would face a significant risk of exposure,” says Robert Field, a professor of law at Drexel University. “Other pathogens would be safer to steal because protection is easier.”

Like, for instance, anthrax.

TIME ebola

The Psychology Behind Our Collective Ebola Freak-Out

Airlines and the CDC Oppose Ebola Flight Bans
A protester stands outside the White House asking President Barack Obama to ban flights in effort to stop Ebola on Oct. 17, 2014 in Washington, DC. Olivier Douliery—dpa/Corbis

The almost-zero probability of acquiring Ebola in the U.S. often doesn’t register at a time of mass fear. It’s human nature

In Hazlehurst, Miss., parents pulled their children out of middle school last week after learning that the principal had recently visited southern Africa.

At Syracuse University, a Pulitzer Prize–winning photojournalist who had planned to speak about public health crises was banned from campus after working in Liberia.

An office building in Brecksville, Ohio, closed where almost 1,000 people work over fears that an employee had been exposed to Ebola.

A high school in Oregon canceled a visit from nine students from Africa — even though none of them hailed from countries containing the deadly disease.

All over the U.S., fear of contracting Ebola has prompted a collective, nationwide freak-out. Schools have emptied; businesses have temporarily shuttered; Americans who have merely traveled to Africa are being blackballed.

As the federal government works to contain the deadly disease’s spread under a newly appointed “Ebola czar,” and as others remain quarantined, the actual number of confirmed cases in the U.S. can still be counted on one hand: three. And they’ve all centered on the case of Thomas Eric Duncan, who died Oct. 8 in a Dallas hospital after traveling to Liberia; two nurses who treated him are the only other CDC-confirmed cases in the U.S.

The almost-zero probability of acquiring something like Ebola, given the virus’s very real and terrifying symptoms, often doesn’t register at a time of mass paranoia. Rationality disappears; irrational inclinations take over. It’s human nature, and we’ve been acting this way basically since we found out there were mysterious things out there that could kill us.

“There are documented cases of people misunderstanding and fearing infectious diseases going back through history,” says Andrew Noymer, an associate professor of public health at the University of California at Irvine. “Stigmatization is an old game.”

While there was widespread stigma surrounding diseases like the Black Death in Europe in the 1300s (which killed tens of millions) and more recently tuberculosis in the U.S. (patients’ family members often couldn’t get life-insurance policies, for example), our current overreaction seems more akin to collective responses in the last half of the 20th century to two other diseases: polio and HIV/AIDS.

Concern over polio in the 1950s led to widespread bans on children swimming in lakes and pools after it was discovered that they could catch the virus in the water. Thirty years later, the scare over HIV and AIDS led to many refusing to even get near those believed to have the disease. (Think of the hostile reaction from fellow players over Magic Johnson deciding to play in the 1992 NBA All-Star Game.)

Like the first cases of polio and HIV/AIDS, Ebola is something novel in the U.S. It is uncommon, unknown, its foreign origins alone often leading to fearful reactions. The fatality rate for those who do contract it is incredibly high, and the often gruesome symptoms — including bleeding from the eyes and possible bleeding from the ears, nose and rectum — provoke incredibly strong and often instinctual responses in attempts to avoid it or contain it.

“It hits all the risk-perception hot buttons,” says University of Oregon psychology professor Paul Slovic.

Humans essentially respond to risk in two ways: either through gut feeling or longer gestating, more reflective decisionmaking based on information and analysis. Before the era of Big Data, or data at all, we had to use our gut. Does that look like it’s going to kill us? Then stay away. Is that person ill? Well, probably best to avoid them.

“We didn’t have science and analysis to guide us,” Slovic says. “We just went with our gut feelings, and we survived.”

But even though we know today that things like the flu will likely kill tens of thousands of people this year, or that heart disease is the leading cause of death in the U.S. every year, we’re more likely to spend time worrying about the infinitesimal chances that we’re going to contract a disease that has only affected a handful of people, thanks in part to its frightening outcomes.

“When the consequences are perceived as dreadful, probability goes out the window,” Slovic says. “Our feelings aren’t moderated by the fact that it’s unlikely.”

Slovic compares it to the threat from terrorism, something that is also unlikely to kill us yet its consequences lead to massive amounts of government resources and calls for continued vigilance from the American people.

“Statistics are human beings with the tears dried off,” he says. “We often tend to react much less to the big picture.”

And that overreaction is often counterproductive. Gene Beresin, a Harvard Medical School psychiatry professor, says that fear is causing unnecessary reactions, oftentimes by parents and school officials, and a social rejection of those who in no way could have caught Ebola.

“It’s totally ridiculous to close these schools,” Beresin says. “It’s very difficult to catch. People need to step back, calm down and look at the actual facts, because we do have the capacity to use our rationality to prevent hysterical reactions.”

Read next: Nigeria Is Ebola-Free: Here’s What They Did Right

TIME ebola

Here’s How Suspected Ebola Patients Can Be Restricted

Ebola precautions in the Netherlands
A man tries on special Ebola gear in Berkel en Rodenrijs, The Netherlands, on Oct. 17, 2014. Remko De Waal—EPA

And other Ebola quarantine questions answered

About 100 Dallas healthcare workers who treated Thomas Eric Duncan, who died of Ebola Oct. 8, have been asked by the Texas state health agency not to go to public places or travel by plane or bus. The voluntary requirements are designed to halt the disease’s spread, which continue to concern Americans this weekend as a cruise ship quarantined a health worker and an airline attempts to contact passengers who flew with an infected Dallas nurse.

But as health officials try to contain the spread of the disease, the restrictions by federal and state agencies as well as private businesses like cruise lines are increasingly bumping up against civil liberties, raising a number of questions about who can officially order a quarantine and whether someone can be kicked off a plane for having Ebola-like symptoms.

Who can order a quarantine?

State, local and federal authorities can all issue quarantines, which separate and restrict the movement of people who were exposed to a communicable disease. But it’s often state authorities that order them. Those health agencies often have significant powers to issue a quarantine if they suspect someone has come into contact with a disease like Ebola, says Wendy Parmet, a Northeastern University law professor. Texas, for instance, has strong policing powers in the case of a public health emergency to quarantine those the state believes to have come in contact with the disease. For example, the state can destroy property it believes may have come into contact with a contagious disease.

The Centers for Disease Control and Prevention (CDC) also issues quarantines, with its powers deriving from the Public Health Service Act and the Commerce Clause of the U.S. Constitution. But the CDC is generally focused on issues at the border: flights and passenger ships coming into the U.S., for example. But it has jurisdiction over interstate flights as well.

Who can order someone to be isolated?

Local, state and federal agencies can issue an isolation order, which separates people with a contagious disease from those who are not infected.

What do those agencies have to prove to order a quarantine or an isolation?

Health agencies have an epidemiological checklist that helps them determine if someone showing symptoms of a disease is actually carrying it, says Indiana University law professor David Fidler. Those health agencies are generally required to be as unrestrictive as possible when issuing those orders. For example, the CDC can’t order a quarantine for longer than the general incubation period for Ebola, which is normally 21 days. If it does, an individual could theoretically take the health agency to court over the matter.

What happens if someone suspected of Ebola resists a state or federal order?

Because of the substantial powers given to the CDC and state and local health agencies, someone resisting a quarantine or isolation could be made to comply involuntarily. In Texas, it’s a criminal offense to resist a quarantine order.

“Most health agencies would certainly have the authority to send police in moon [hazmat] suits to physically put them somewhere in isolation or back in their house,” says Robert Field, a Drexel University professor of law and health policy.

What if you resist voluntary compliance, like the kind being asked of Dallas’s healthcare workers?

If healthcare workers resist signing the voluntary quarantine or defy its recommendations after agreeing to it, Emory University law professor Polly Price says that it’s likely an official quarantine would be ordered. “They could go and get a court order to formalize it, possibly even after the fact,” Price says. “But they would likely seek a formal quarantine.”

Can the CDC force a state health agency to quarantine someone?

The CDC does not have enforcement over state agencies, but Drexel’s Field says federal authority in those instances is rarely used. “It would be an unusual situation in which the federal government wanted to quarantine someone and a state did not,” he says.

Can you be kicked off a plane for being suspected of having Ebola?

Planes kick people off for all sorts of reasons, including joking about Ebola. So it doesn’t seem terribly far off that airlines could also kick someone off for having Ebola, considering they’re a private business and it wouldn’t be considered a discriminatory practice.

“The Americans With Disabilities Act says you can’t discriminate because of a disability,” says Drexel University’s Field. “But there are exceptions for someone who presents direct threats involving something like an infectious disease. An airline could use that exception to deny someone access to a plane.”

But it’s more likely that the CDC would get involved. Indiana University’s Fidler says that airlines are required to notify the CDC if there’s a sick passenger aboard who may have a contagious disease.

How about a cruise ship?

Cruise ships also appear to be able to temporarily quarantine or isolate a sick passenger or even remove them from a ship, but they would be required to immediately notify the CDC of such an event. Indiana University’s Fidler says it’s likely that a cruise ship would call the CDC for guidance on what to do.

But Peter Jacobson, a University of Michigan professor of health law and policy, says it’s likely that cruise ship passengers sign a contract that gives the captain wide discretion to take action to avoid harm to others on board.

TIME LGBT

Houston’s Pastors Outraged After City Subpoenas Sermons Over Transgender Bill

Ted Cruz
Sen. Ted Cruz is surrounded by preachers as he addresses a crowd at a Houston church Thursday, Oct. 16, 2014 about a legal dispute involving several pastors fighting subpoenas from Houston city attorneys. Pat Sullivan—AP

City officials have subpoenaed the sermons of five pastors who oppose the Houston's new equal rights ordinance

Houston, with its left-leaning, openly gay mayor governing an influential conservative and evangelical base, is a city politically divided. That division has been made clear in recent days after the city subpoenaed sermons of several pastors who oppose a recently passed equal rights ordinance for gay and transgender residents. The subpoenas are an attempt by city officials to determine how the preachers instructed their congregants in their push to get the law repealed.

The city’s subpoenas targeted sermons and speeches by five Houston pastors with ties to religious leaders attempting to repeal the Houston Equal Rights Ordinance, which bars businesses from discriminating against gay and transgender residents. The law, passed into law by Mayor Annise Parker in May, is often derided as a “bathroom bill,” because it allows transgender individuals to choose whether to use a male or female restroom.

This summer, a group of local pastors and religious leaders began gathering signatures in an attempt to get a referendum to repeal the law on this November’s ballot. But City Attorney David Feldman blocked that attempt by throwing out thousands of signatures he said didn’t meet the criteria to qualify, incensing groups opposed to the rule.

Local religious leaders claim Feldman illegally disqualified the referendum and have filed a suit against the city. Mayor Parker, meanwhile, has pledged not to enforce the ordinance until there’s a court decision. But the move by the city to subpoena Houston’s pastors, who have been vocal on the issue and have urged their congregants to support a repeal referendum, has drawn national attention. Republican Senator Ted Cruz said in a statement that the subpoenas were “shocking and shameful,” and Family Research Council’s Tony Perkins has called for the city to drop them as well.

“The chilling effect of government scrutiny of our pastors is unconstitutional, and unconscionable,” Perkins said in a statement. “Mayor Parker’s use of her bully pulpit to silence pulpit freedom must be stopped in its tracks.”

Texas Attorney General Greg Abbott also issued a letter saying the city impinged on the pastors’ First Amendment rights and called for the subpoenas’ immediate reversal. “Whether you intend it to be so or not, your action is a direct assault on the religious liberty guaranteed by the First Amendment,” Abbott wrote to Feldman. “The people of Houston and their religious leaders must be absolutely secure in their knowledge that their religious affairs are beyond the reach of the government.”

University of Houston law professor Peter Linzer says the city reached too far in issuing the subpoenas. One subpoena sent to Pastor Steve Riggle, for example, asks for “all speeches, presentations, or sermons related to [the equal rights ordinance], the petition, Mayor Annise Parker, homosexuality, or gender identity.” However, Linzer says it wouldn’t impinge on the pastors’ First Amendment rights if the city only asked only for sermons or speeches related to the signature drive. “Let’s assume they gave instructions to cheat,” Linzer says. “That would be relevant speech and I don’t see how they would have any First Amendment protection for that.”

Among those fighting the city’s move is the Alliance for Defending Freedom, a religious freedom advocacy non-profit whose lawyers have filed a motion trying to quash the subpoenas. “I haven’t seen any indication that the city is backing down,” says Erik Stanley, the group’s senior legal counsel. “But we’re hopeful that they will. The only thing we can figure is they were subpoenaed because they spoke out against the ordinance. And they urged people to sign the petition. They exercised their constitutional rights to speak out.”

Still, Mayor Parker and City Attorney David Feldman appeared to backtrack on the subpoenas Wednesday, saying they had only recently learned of them and that outside lawyers handled the lawsuit. They argued the city is merely looking for communications from those pastors regarding the petition drive, but that the subpoenas’ language was inappropriate.

“There’s no question the wording was overly broad,” Parker said in a news conference Wednesday. “But I also think there was some deliberate misinterpretation.” Feldman, the city attorney, called the uproar over the wording “ridiculous,” but also has argued that if a pastor is speaking about political issues from the pulpit, it’s not protected. The mayor’s office declined to comment further for this story.

On Friday, The Houston Chronicle reported that the city would remove the term “sermon” from the subpoenas. Mayor Parker, however, said that relevant sermons regarding the petition drive could still be gathered.

TIME Transportation

Cities Have Found a New Way to Take Your Money

Yellow Traffic Light
Getty Images

Watch your speed at those yellow lights

Correction appended, Oct. 15.

All yellow traffic lights are not created equal, it seems. Especially in Chicago.

Earlier this year, the city began issuing tickets to motorists who drove through yellow lights that turned red fractions of a second shorter than the three-second city minimum. The change was slight, but the effect for the cash-starved city was real: nearly $8 million from an additional 77,000 tickets, according to the city’s inspector general.

All of those $100 tickets were issued after cameras installed at intersections caught the drivers as they passed through. These systems, known as red light cameras, are an increasingly controversial tactic for policing roadways. Established in the name of public safety, critics contend the cameras have become little more than a way for municipalities to funnel money into their coffers.

“If the machine is set to catch more people and generate more revenue, then it does not really seem to be about safety but about revenue,” says Joseph Schofer, a professor of transportation at Northwestern University.

Chicago isn’t the first municipality to benefit from shorter yellow traffic lights. In 2011, the Florida Department of Transportation secretly reduced its policy on the length of yellow lights, likely bringing millions of dollars in additional revenue to the state.

There is no federal rule for how long a yellow light should be illuminated, but the U.S. Department of Transportation recommends three to six seconds. Nationwide, a minimum of three seconds is generally considered standard. John Bowman, a spokesperson for the National Motorists Association, which opposes the cameras, says the organization routinely gets calls from people saying they received a red light camera ticket, believing the yellow light was too short.

“I don’t think you’re ever going to get a public official on the record saying, ‘We shortened them to make more money,’” Bowman says. “But I think that clearly goes on.”

Red light cameras gained popularity in the 1990s after New York became the first U.S. city to install a network. The initial motivation was safety, says Hani Mahmassani, the director of the Northwestern University Transportation Center. The hope was that cameras would deter drivers from running red lights if they knew it would lead to a ticket. But in the 2000s, as the popularity of the cameras grew, cities and the companies that manufactured, installed and helped operate the cameras adopted a revenue-sharing model. The more violations caught by the cameras, the more money the city and the businesses stood to make.

“That’s when it became a greed thing,” Mahmassani says.

By the end of the decade, red light camera networks were in hundreds of municipalities. Today, 499 towns and cities have adopted them, according to the Insurance Institute for Highway Safety.

While the potential for profit is clear, the public safety value of red light cameras is fuzzy. Studies on whether red light cameras actually enhance safety are mixed. Several studies conducted by IIHS, which supports the cameras, show that crashes have not only decreased in intersections that utilize the cameras but that vehicle-related deaths have declined in those cities as well. But other research has shown that the cameras actually increase rear-end collisions because they force drivers to stop more quickly over fear that they’ll run the light and get ticketed, causing tailing motorists to smack into them.

And many of the systems have had other problems. In New Jersey, 17,000 motorists never received tickets for running a red light, while in Chicago, a former city official and the former CEO of Redflex Traffic Systems have been indicted as part of an alleged bribery scheme. There have also been reports of unexplained spikes in tickets given out by the system.

All of which has led to a growing backlash against the cameras. Red light cameras are currently banned in seven states, and others are considering outlawing them. In New Jersey, Gov. Chris Christie says it’s unlikely he’ll extend the state’s red light cameras beyond their expiration date at the end of the year. In Ohio, state lawmakers are looking at banning them by requiring speeding or red light tickets to be handed out in person by officers. And in Chicago, the city said it will no longer ticket motorists who breeze through the shorter yellow. But it’s keeping the money from the ones it already issued.

Correction: The original version of this story misstated the relationship between the length of Chicago’s yellow lights and the city’s ticketing policy. Chicago began issuing new tickets for traffic violations after the city started using a different red light camera vendor earlier this year.

TIME justice

Suspicious Prison Deaths Put a Spotlight on Florida

Latandra Ellington Florida Department of Corrections

Several deaths while in prison custody are under investigation

On Oct. 1, Latandra Ellington was found dead inside the Lowell Correction Institution in Ocala, Fla., apparently from repeated blows to her stomach. About a week and a half before, the 36-year-old inmate had written a letter to her aunt, saying she was concerned for her safety in prison and claimed that an officer named “Sgt. Q” was threatening to kill her.

According to attorneys representing Ellington’s family, an independent autopsy shows blunt force trauma and hemorrhaging to her body from what appeared to be punches or kicks. The attorneys, along with several organizations, including the American Civil Liberties Union and Amnesty International, are calling for a federal investigation into her death.

The Ellington case is one of several suspicious deaths in state prisons that have made headlines in Florida, including a deadly incident in 2010 involving Randall Jordan-Aparo, who reportedly died while being gassed in his cell, and Darren Rainey, who died in 2012 after being forced to take a scalding hot shower that caused his skin to separate from his body.

Ellington’s death is the third fatality in custody at Lowell this year. Two others at the prison are under review by the Florida Department of Law Enforcement.

While the inmate mortality rate in Florida and across the country has remained relatively steady over the last decade, Florida outpaces most states in terms of mortality rate per 100,000 inmates, according to the Bureau of Justice Statistics and the Florida Department of Corrections. In 2001, 182 prisoners died in Florida compared with 297 in 2011, but the population also grew at a similar rate over that same time period. The mortality rate per 100,000 prisoners slightly increased from 253 in 2001 to 294 in 2011.

Part of that may be due to the rapidly aging prison population in Florida, which mirrors the state’s population generally. From 2001 to 2008, the number of Florida inmates who were 55 and older increased by 161%, says Bill Bales, a criminology professor at Florida State University. And the number of federal and state prisoners in the U.S. who were 55 and older increased 94% in the same time period, according to Pew Research.

Overall and nationwide, the largest share of prisoner deaths—almost 90%—are due to illness. But the share of state prisoner deaths due to homicide—which includes homicide committed by other inmates, prison staff or those resulting from assaults prior to incarceration—have increased from 1.4% in 2001 to 2.1% in 2011 around the country, according to BJS.

This year in Florida, there have been three homicides and one suicide in state prisons. Investigations into 99 other deaths are currently pending.

Dan Mears, a criminal justice professor at the University of Florida, says prisons with increases in suspicious inmate deaths often have problems that start at the top and work their way down. Florida’s Department of Corrections, for example, has gone through four leadership changes in the last five years.

“At the end of the day, when you’re asking why some prisons have higher rates of suicide or higher rates of suspicious deaths and why they increase over time, it’s often because they’re being poorly administered—and oftentimes they’ve hired new officers who aren’t as highly trained,” Mears says. “That could potentially fuel those deaths.”

Mears adds that badly run prisons often have inadequate training for officers and don’t properly teach them how to handle conflicts with inmates, which can often lead to fatal consequences.

In September, the Florida DOC fired dozens of employees, many of whom have been involved in deaths that are currently under investigation, including that of Jordan-Aparo, who was gassed in his cell. Their dismissal letters said they were fired for participating “in a force incident that resulted in the death of an inmate.”

A Lowell prison official, Sgt. Patrick Quercioli, is now being investigated in Ellington’s death, according to the Miami Herald, and has been arrested twice while tallying 22 use-of-force filings while working for the DOC.

“Our department should be held to the highest standards, and I have zero tolerance for anything,” DOC Secretary Michael Crews said in a statement.

As the state reviews the case, attorneys for Ellington’s family, who also represent the family of Trayvon Martin, the Florida teen shot and killed by George Zimmerman in February 2012, are calling for the Department of Justice to investigate.

“She was not sentenced to the death sentence,” said civil rights attorney Daryl Parks, according to the Herald. “The Department of Corrections certainly owed her far greater protection.”

TIME Crime

Behind the Messy Science of Police Lineups

Thomas Haynesworth answers questions from the media after he was released from the Greensville Correctional Center in Jarratt, Va., on March 21, 2011.
Thomas Haynesworth answers questions from the media after he was released from the Greensville Correctional Center in Jarratt, Va., on March 21, 2011. P. Kevin Morley—Richmond Times-Dispatch/AP

A National Academy of Sciences report recommends sweeping changes to how police departments conduct lineups as researchers remain at odds

In 1984, Thomas Haynesworth—an 18-year-old resident of Richmond, Va.—was accused of rape by five women, one of whom had identified Haynesworth by spotting him on the street. Later, four other victims picked his face out of a police lineup. That was the man who raped them, they said. One of them even told the jury, “He had a face I couldn’t forget.”

Haynesworth was convicted in three of the attacks and sentenced to 74 years in prison. But he was innocent.

In 2009, DNA testing linked Leon Davis, who had been convicted of other assaults in the Richmond area around the same time, to one of the women who initially accused Haynesworth of rape. Several attorneys eventually investigated the cases involving Haynesworth and reached the conclusion that in fact Davis was responsible for all three rapes. In March 2011, Haynesworth was released from prison after almost 30 years behind bars. In December, he was fully exonerated.

The Haynesworth case is one of the most egregious to emerge from the fallibility not only of human memory but of police lineups and the way they’re often conducted around the country.

Most people think of the lineup the way it’s often shown in movies or on TV: You bring a handful of unsavory guys into the police station. One of them is the real suspect while the others are just fillers. Then the witness immediately points and says, That’s him!

But few departments conduct lineups today with live suspects. Most use photo arrays, sometimes on a computer, that are presented to a witness. Over the last few decades, a handful of researchers have studied the way those lineups are administered with troubling conclusions: Too often, police lineups lead to eyewitness misidentifications, put innocent people in prison and allow the real culprits to go free.

According to the Innocence Project, eyewitness misidentification has been a factor in 72% of convictions that have been overturned by DNA testing. The National Registry of Exonerations, which works in conjunction with the University of Michigan, traces 507 of the 1,434 exonerations back to mistaken witness identification. But according to researchers, many police departments don’t know the underlying problems associated with troublesome lineups, don’t have the resources to conduct better ones, or are confused as to the best way to go about them.

On Thursday, the National Academy of Sciences, a non-profit organization of experts and academics around the U.S., released the first comprehensive report to review decades of literature on lineups while offering sweeping recommendations on how they should be conducted, including ensuring that those administering them are not aware of the suspect’s identity, developing standard instructions for witnesses so as to not bias their pick, videotaping the ID process and recording confidence statements from witnesses at the time of an identification.

“Eyewitnesses that lead to erroneous convictions are very disturbing,” says Tom Albright, a professor at the Salk Institute for Biological Studies, who co-chaired the committee. “It’s bad for society if the bad guys go free, and it undermines the criminal justice system, which is a serious long-term problem potentially.”

A number of factors can affect a person’s memory, especially in a charged moment like when a crime is taking place. If someone has a gun, for example, we’re more likely to pay attention to the weapon than the face of the person holding it. Our emotions and internal biases can alter the way we remember an incident. Or maybe the problem comes from something as simple as the angle from where someone witnesses a crime and an inability to get a good look at the perpetrator.

“I argued that what we should be concentrating on are the variables over which the justice system has some control and help advise the legal system about how they might reduce the likelihood of mistaken identifications,” says Gary Wells, an Iowa State University professor who has been the leading researcher on lineups for years.

Wells was essentially a one-man shop of eyewitness research through the 1980s and into the 1990s. He helped introduce the idea of the double-blind procedure, in which officers who were administering a lineup didn’t know the real suspect from the filler picks. By doing so, officers couldn’t ask leading questions that could bias the witness. He championed sequential lineups (photos shown one at a time) over simultaneous lineups (photos shown together and often six at a time), arguing that it was a more difficult task for eyewitnesses and would provide a higher standard for IDing a suspect.

But his research often went unnoticed, remaining stuck in the halls of academia and not taken seriously by law enforcement or merely unknown to officers in the field.

“I think we’d still have this huge gap where the work we’ve done would be written off as pointy-headed researchers in the lab,” Wells says, “until the DNA exonerations came.”

Around the late 1990s, as DNA testing took off, it turned out that a number of false convictions could be traced back to witness misidentification. Soon after, then-Attorney General Janet Reno created a working group that included Wells to produce some basic guidelines for how police departments in the U.S. should conduct lineups.

In the last 15 years, a number of police departments have begun taking those reforms seriously. Baltimore, Boston, Dallas, Denver, Minneapolis, Philadelphia and San Diego have all changed the way they conduct them in the last several years, and most of those agencies have implemented blind, sequential procedures.

For the most part, the recommendations released by NAS on Thursday endorsed many of the things for which Wells has been long arguing. The report calls for law enforcement agencies to provide officers with training on vision and memory as well as guidance on how to prevent contamination of a witness with leading questions that could affect their decision-making. It also calls for double-blind lineups and standardized instructions to inform witnesses that the suspect may or may not be in the lineup. It pushes agencies to document confidence judgments from witnesses at the time of an identification, confidence that can often irrationally grow in strength by the time they’re called to the witness stand. And it urges agencies to videotape the entire ID process.

However, it doesn’t recommend sequential or simultaneous lineups, in part because the academic debate over the two has gotten messy.

A new way of studying the accuracy of a lineup has emerged in the last few years, most prominently by John Wixted of the University of California-San Diego, who uses something called a “receiver operating characteristic,” or an ROC curve, which takes into account witness confidence in an identification. Eyewitness confidence numbers are plotted along the curve and appear to show that administering a simultaneous lineup has produced more accurate IDs than sequential ones. Other ROC studies appear to have similar findings.

Another study conducted by Wixted and Karen Amendola of the Police Foundation has analyzed lineup selections as they relate to the strength of evidence in actual cases over time in Austin, Texas. That study also appears to have found that sequential lineups are not superior to simultaneous ones and that, in fact, innocent suspects are less likely to be mistakenly identified from simultaneous lineups.

Some researchers, however, dispute those studies. Among the naysayers is Jennifer Dysart, an associate professor of psychology at John Jay College of Criminal Justice.

“They’re getting these really crazy data that are completely inconsistent with the general pattern of results,” Dysart says.

She says she believes Amendola has incorrectly analyzed her numbers regarding the Austin evidence-based findings and didn’t have a sample size big enough to conclude that simultaneous lineups are a superior method. But she also believes there may be ulterior motives at work in the new ROC analyses done by Wixted and others.

“I think they want to take down Gary because he’s been the lead researcher in the field of eyewitness identification for over 35 years,” she says.

“There’s a lot of noise out there,” Wells acknowledges, referring to the ongoing simultaneous/sequential debate. “I think it’s fair to say that it’s unresolved at the moment. I have a feeling that in the end, we’re going to end up discovering that there’s not a huge difference between them.”

The NAS recommendations steer clear of the back-and-forth entirely. But most lineups researchers praised the report’s findings overall, including Wells.

“This is a huge shot in the arm,” Wells says. “It’s a ringing endorsement of the science. And now we have the task of bridging the gap between the science and the legal system.”

TIME justice

Oklahoma Changes Lethal Injection Protocol, But Keeps Controversial Drug

After an execution widely regarded as botched

The United States’ three executions this year widely considered botched all have at least one thing in common: they’ve all included the use of midazolam, a sedative previously unused in lethal injections.

In January, Ohio executed Dennis McGuire in a 25-minute lethal injection using a two-drug combination of midazolam and hydromorphone. In April, Oklahoma executed Clayton Lockett using midazolam as the first of three drugs in a process that took almost 45 minutes. And in July, Arizona used the same protocol as Ohio to execute Joseph Wood, another lethal injection that took close to two hours.

Late Tuesday, Oklahoma announced new lethal injection procedures requiring more training for executioners and contingency plans if any problems arise. The new protocol also reduces the number of media witnesses from 12 to five. On top of that, it provides the state with four different lethal injection drug combination options, two of which still involve midazolam in a dosage that is five times larger than what was used in Lockett’s execution.

The Oklahoma Department of Corrections released the new guidelines this week without comment. But the move appears to be a way for the state to continue executions while opening the door for more desirable and, possibly, effective drugs that have become difficult to obtain.

“I think this represents a tension between the drugs they would prefer to use and what’s available,” says Richard Dieter, executive director of the Death Penalty Information Center, an anti-capital punishment organization.

In April, Gov. Mary Fallin ordered an investigation into Lockett’s execution, which led to a report released in September by the Department of Public Safety that found that an IV line into Lockett’s groin had become dislodged and wasn’t immediately discovered. The agency made several recommendations for future executions, and the state’s department of corrections pledged to carry out most of them.

“This is in keeping with their position that the botched execution of Lockett was not due to the drugs used, but to the misplacement of the IV,” Dieter says. “To abandon midazolam might contradict this, and possibly leave them with no drugs to carry out the execution.”

Since pharmaceutical companies began denying states drugs like pentobarbital, a sedative that was widely used up until just a few years ago, midazolam has been easier for prison systems to get. And some states may fear that without it, they may not be able to carry out executions at all.

“I think states like Oklahoma are continuing to use midazolam because so far they can and they don’t know what else to do,” says Deborah Denno, a Fordham University professor who studies lethal injection.

TIME Crime

States Try Secrecy to Protect Lethal Injection Drugmakers

The death chamber at the Southern Ohio Correctional Facility in Lucasville, Ohio, in 2005.
Kiichiro Sato—AP

Ohio's attorney general proposed shielding the identity of companies who provide drugs for execution, following the lead of other states

States carrying out lethal injections have had to find new ways to execute inmates in recent years. Many have not only experimented with multiple untested drug combinations but have also turned to previously unused pharmacies. And they’ve increasingly tried to block the identity of those drugmakers in order to keep a steady supply of drugs flowing.

A handful of states, including Arizona, Georgia, Missouri and Oklahoma, have passed secrecy laws to protect the anonymity of pharmacies, which fear backlash if it becomes public that they’re providing drugs for executions. Ohio—home to a lethal injection earlier this year that was widely considered botched—may be next.

Ohio Attorney General Mike DeWine said this week that it’s unlikely executions in the state would proceed unless the legislature provided anonymity for compounding pharmacies and immunity for physicians involved in executions.

“You’re not going to see a death penalty take place until the General Assembly takes action,” DeWine said in a debate with a Democratic opponent Tuesday, according to the Columbus Dispatch. The execution of Ronald Phillips, convicted in the 1993 rape and murder of a 3-year-old girl, is scheduled for Feb. 11.

The comments appeared to be an indication of the difficulties Ohio is having obtaining execution drugs following the lethal injection of Dennis McGuire. In August, a moratorium on executions was set by U.S. District Judge Gregory Frost, who postponed all lethal injections in the state after McGuire—convicted in the 1989 rape and murder of 22-year-old Joy Stewart—was executed in a 25-minute-long execution, in which the inmate reportedly made repeated snoring and snorting noises. The state used two drugs, midazolam and hydromorphone, which were obtained from Illinois-based Hospira, a pharmaceutical company.

Since then, the McGuire family has sued Hospira, forcing Ohio to look elsewhere for drugs. Like most states, the Ohio Department of Rehabilitation and Correction is attempting to acquire drugs from compounding pharmacies, which are not regulated by the federal government. Many pharmacies, however, are unwilling to manufacture drugs for prison systems unless their identities are shielded.

Secrecy laws have become the only way for most states to continue carrying out the death penalty, but those protections are increasingly being challenged.

The Guardian, along with the Associated Press and Missouri’s three largest newspapers, filed a lawsuit against the Missouri Department of Corrections in May, arguing that under the First Amendment the public has a right to know what drugs the state is using and where the state is obtaining them. In September, the Guardian also joined the American Civil Liberties Union and three other newspapers in a similar lawsuit in Pennsylvania.

In a few states, efforts at creating secrecy laws have failed, including in Alabama and Louisiana, both of which failed to pass legislation shielding drugmakers. But most states are pressing forward.

“States certainly aren’t backing away from their secrecy positions,” says Richard Dieter, the executive director of the Death Penalty Information Center, an anti-capital punishment organization. “In many states, the legislation already in place has been relied on to claim secrecy. It seems that part of Ohio’s, and other states’, problems stemmed from their secrecy. So it seems ironic that the proposed solution is even more secrecy.”

TIME Crime

Why the FBI Report That Mass Shootings Are Up Can Be Misleading

Gun Shooting
A new FBI report shows an increase in "active shooter" incidents, but that doesn't necessarily equate to more mass shootings, say criminologists. Getty Images

While 'active shooter' incidents appear to be on the rise in the U.S., mass shootings do not

Aurora. Virginia Tech. Fort Hood. Sandy Hook. They’re four of the worst mass shootings in U.S. history. And they’ve all occurred in the last seven years.

For many Americans, mass shootings in malls, movie theaters and schools seem commonplace today. They’re fixtures of newscasts and are routinely referenced by gun control advocates in Washington lobbying for more restrictive laws on firearms. But the notion that they’ve been increasing has been mostly anecdotal. For all the discussion of gun violence in the U.S., the federal government has never collected information on mass shootings in one place.

But on Wednesday, the FBI released a report doing just that, including analyses of “active shooter” incidents and annual totals of casualties since 2000, all of which seem to point to one conclusion: The U.S. is experiencing more mass shootings than ever.

The FBI identified 160 “active shooter” incidents and 1,043 casualties between 2000 and 2013, finding that an average of 6.4 incidents occurred in the first seven years, and 16.4 occurring in the following seven.

“I was surprised that we identified that many incidents overall,” says J. Pete Blair, a Texas State University criminal justice professor who co-authored the FBI report. “I think it speaks to the fact that while there is interest in the media, many incidents don’t get covered, especially if they result in few injuries or don’t draw the body count of others.”

Seventy percent of the incidents identified occurred either inside a business or an educational environment, like a public school or a college campus. Sixty percent were over by the time police arrived, all but two involved a single shooter, and in 40% of them, the shooters committed suicide.

But at least two prominent criminologists have taken issue with the FBI report’s findings. James Alan Fox, a Northeastern University criminal justice professor, and Grant Duwe, a director of research for the Minnesota Department of Corrections and author of a book on the history of mass murder in the U.S., are both known for being mass shooting contrarians. And both think the FBI numbers are misleading.

“These events are exceptionally rare and not necessarily on the increase,” Fox says.

One of the problems, they say, lies with the definition of “active shooter” and “mass shooter.” The FBI report analyzed “active shooter” incidents generally, a term defined by the federal government as an individual actively engaged in killing or attempting to kill others in a confined and populated area. (The FBI report modified that definition a bit to include multiple individuals as well as events in locations not considered “confined.”)

The problem in conflating the two terms, Fox argues, is that an active shooter doesn’t necessarily have to kill anyone. And in fact, only 64 incidents involving “active shooters” met the federal government’s definition of a “mass killing,” in which three or more people were murdered in a single incident. In 31 incidents identified by the FBI report, no one was killed.

“A majority of active shooters are not mass shooters,” Fox says. “A majority kill fewer than three.”

If active shooters are removed from the equation, Fox says, mass shootings in fact have not been rising over the last few decades, and both the number of incidents and the number of victims has remained relatively steady since the 1970s.

Fox and Duwe are also critical of the report’s methodology. To collect many of the incidents, the FBI’s researchers often combed through news reports. But the term “active shooter” has only been in use within the last few years, Fox says, which may have skewed the numbers in favor of more recent events, possibly making it look as if shootings are rising.

An additional problem may also be the availability of digital news sources that could make it easier for researchers to find more recent incidents. For example, the FBI report only identifies one active shooter incident in 2000. Duwe’s analysis includes two.

“The point is if you go back to those earlier years, I don’t think they’ve gotten them all,” Fox says. “Recent years are easier to find.”

Blair, the report’s co-author, says he and the FBI has tried to make it clear that there’s a distinct difference between active and mass shooter. He says the agency decided to focus on active shooters generally in part to give law enforcement agents guidance on how those incidents were resolved, which could help them in future cases.

“The two terms have been confounded not just in the media, but by the public in general,” Blair says. “They interpret active shooter to mean a mass murder, a mass shooting. They could turn into that, but not all of them do.”

Blair acknowledges it’s possible the numbers have been skewed due to the availability of more recent news reports, but he disputes the argument that the numbers are biased because the term “active shooter” is more common today. Blair says researchers not only searched for “active shooter” in news articles but also for terms like “mass shooting,” “mall shooting” and “spree shooting.”

“Active shooter is one of the terms we search for, but it’s one of the least productive,” Blair says.

Not all criminologists dispute the FBI’s findings. Adam Lankford, a criminal justice professor at the University of Alabama who studies mass shootings, says he believes the numbers paint an accurate picture of what’s occurring nationwide, and that in fact criminologists like Fox are including cases of drug deals gone wrong and family disputes in their analyses, which he believes skew their own numbers.

“The public wants to know whether more incidents like what happened at UC-Santa Barbara [involving 22-year-old Elliot Rodger, who killed six people] or Sandy Hook are happening more often,” Lankford says. “And I think the evidence says yes.”

Duwe does acknowledge that 2012 on its own was one of the worst years for mass shootings in U.S. history. According to his analysis, there were eight that year—including 12 people killed and 58 wounded in a movie theater in Aurora, Colo., and 27 killed and two wounded at Sandy Hook Elementary School in Newtown, Conn. Sixty-six people total were killed in mass shootings that year, Duwe says. (In contrast, the FBI listed 21 “active shooter” incidents and 90 people killed.)

But he says there’s been a “regression to the mean” since then, meaning there have been fewer mass shootings since 2012 and a return to more average levels. According to Duwe’s analysis, there were just three mass shootings in 2013 with 22 killed, and he says similar declines happened after 1991 and 1999, both high years for mass shootings in the U.S.

Duwe believes the perception Americans have that there are more mass shootings than ever can be chalked up in part to a faulty collective memory.

“We may just have historical amnesia,” he says.

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