With the Derek Williams case in the news again recently, there was a special resonance for me in reading Jeffrey Jentzen’s comprehensive historical study, Death Investigation in America: Coroners, Medical Examiners, and the Pursuit of Medical Certainty (2009). Williams died in police custody in 2011. The Milwaukee County medical examiner initially ruled Williams’ death natural, but, based in part on a video of Williams struggling to breath in the back of a squad car, Williams’ death was reclassified as a homicide. This reclassification triggered a lengthy and controversial review process by law-enforcement authorities to determine whether any of the police officers involved in the incident should be criminally charged. Most recently, federal prosecutors announced that they would not seek charges. They relied, in part, on yet another medical review of the cause of Williams’ death, which was inconclusive. As U.S. Attorney James Santelle put it, “Since the cause of death is unknown, is unconfirmed, we could not and cannot determine whether any failure by any officer contributed to Mr. Williams’ death.”
The Williams controversy showcases the difficulties — medical, legal, political — that can sometimes arise in determining a cause of death, and the fallibility of the experts on whom we rely for these purposes. Jentzen’s book helps to put all of this into a big-picture historical context.
Jentzen’s central narrative is the contest between coroners and medical examiners.
The coroner model, ubiquitous in the U.S. at the time of its founding and for a long time thereafter, relies on elected laypeople to determine cause of death, often in conjunction with an inquest jury. The medical examiner model relies on physicians, preferably with specialized training in both medical and legal aspects of death investigations.
Beginning in the mid-nineteenth century, physicians began to criticize the coroner system and demand more scientific approaches to death investigation. In response to such agitation, Massachusetts adopted the nation’s first medical-examiner law in 1877. Under this law, the new office of medical examiner took over the responsibility for determining the cause and manner of suspicious deaths. The medical examiners, who were appointed by the Governor, were required to be “able and discreet men learned in the science of medicine.”
The medical examiner model spread from Massachesetts, but only quite slowly. It met fierce resistance from politically entrenched coroners and their allies, including undertakers, many of whom profited from cozy relationships with the local coroner. Opponents argued that medical examiners represented a wasteful expense that would have to be borne by taxpayers — doctors, of course, don’t come cheap — and that the public benefitted from having an independent and democratically accountable death-investigator. States only tended to flip to the medical-examiner model in response to highly publicized cases of corruption or incompetence by local coroners.
Jentzen laments that, even today, many states retain the coroner system. In 2000, he estimates that about forty percent of the U.S. population was still beyond the coverage of medical examiners.
Jentzen’s perspective is that of a classic progressive reformer, reflecting considerable faith in the power of training, specialized expertise, professionalization, and the scientific method to address important social problems.
This is certainly not the only corner of the criminal-justice field in which progressive reformers have engaged in long-running, back-and-forth battles with such competing political forces as populism, fiscal conservatism, and simple institutional inertia. For instance, looking back in history, the prison, originally developed as a progressive alternative to corporal punishment, also spread slowly and unevenly across the U.S. in the nineteenth century, as did the concept of a professional police force. More recently, I think of the debates that have emerged in the past generation regarding sentencing commissions and sentencing guidelines.
My own instincts tend to be in line with Jentzen’s. If our criminal-justice system made more use of science and specialized expertise, it would probably function better along just about every important dimension.
Still, there are limits to what science can do. Law demands clear, either-or answers to its questions — answers that may be beyond science’s capabilities. Moreover, law’s questions often blend fact and moral judgment together in uncertain ways. Thus, for instance, the notion of causation in law combines the factual question of “but-for” causation with the implicit moral judgment of proximate causation. Such blending can be a source of confusion and frustration when science tries to answer legal questions. (I should note, by the way, that Jentzen himself is well aware of these challenges and discusses them effectively.)
This brings us back to Derek Williams, of course. The difficulties here — the inconsistent expert opinions, the seeming disconnect between the ME’s homicide determination and the various decisions not to prosecute — do serve to highlight limitations of the medical examiner system. This is not to say that a coroner system would be better, but rather that we should be realistic about our progressive ambitions; making criminal justice more scientific does not eliminate its inherent messiness.