Rotten Apples–Or a Flawed System?

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Who should be blamed when an innocent person goes to prison? Or when an inmate with un-addressed mental health problems commits suicide?

If you just looked at newspaper headlines, or listened to angry legislators or advocacy groups, the answers seem simple.

There’s usually some “bad apple” —an overzealous prosecutor or careless jail guard—to pin the blame on.

But the problem with simple answers is that they can be misleading.

Especially when catastrophic mistakes such as a lifetime spent in prison for a crime that you didn’t commit— or even comparatively minor injustices, such as an innocent suspect who pleads guilty for lack of a good attorney—seem to recur throughout our criminal justice system.

According to the National Registry of Exonerations, by the end of 2013, 1,272 individuals were freed from prison after being found innocent of the crimes for which they were convicted.

Some believe this represents only a small percentage of those wrongfully behind bars today, since this figure is the result of painstaking work by the still-small “innocence movement” and relates mostly to serious criminal charges, such as murder.

Are they right? To what extent are our overloaded and resource-strained courts, prisons and jails evidence of flaws in the administration of justice rather than crime rates?

It’s entirely possible that system errors and oversights are “destroying tens of thousands of lives every year,” suggests Dr. Lucian Leape of the Harvard School of Public Health.

Dr. Leape admits he’s no criminal justice expert, but he’s worth listening to.

A few decades earlier, Dr. Leape discovered that mistakes in surgical and hospital care, which inadvertently killed thousands of patients annually, were preventable by addressing systemic flaws rather than by focusing on the actions of individual doctors or nurses.

For instance, putting two different types of medicines in packages that look almost identical could cause a hurried, stressed surgeon to reach for the wrong package, with disastrous results for a patient.

‘Punishment Won’t Work’

“We make mistakes because we’re human,” says Leape. “But punishing errors won’t work, especially when they’re unintended. You’ve got to quit trying to change (people) and change the system.”

The work of Leape and others led to the creation of the National Patient Safety Foundation, which established a template for detecting and correcting the often-overlooked errors in procedure or lapses in judgment that produce fatal results.

Leape’s estimate of the impact of criminal justice system errors is based on his own experience of the similarly complex and occasionally dysfunctional U.S. medical system. But we don’t have to accept his judgment alone.

Last weekend, some of the nation’s leading criminal justice players and scholars came to much the same conclusion during a two-day conference organized by the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School.

“If you limit yourself to going after the bad cop, the drunken sleepy lawyer, the corrupt judge, (you’re not affecting) the conditions that created them,” the conference was told by James Doyle, a Boston attorney who, as a recent National Institute of Justice (NIJ) fellow, helped spearhead a “systems approach” to correcting mistakes in justice.

Editors Note: Doyle is also a contributor to The Crime Report. For a more extended version of his perspective, please see his March 4, 2014 Viewpoint, “The Paradigm Shift in Criminal Justice.”

The approach, known as the “Sentinel Events Initiative,” will be tested in three cities this year: Philadelphia, Milwaukee and Baltimore.

With NIJ support, criminal justice players in each city, ranging from the District Attorney’s office and Public Defenders to police, have agreed to develop , in effect, a private feedback loop to examine cases that went wrong—or nearly went wrong— and draw lessons that could be applicable to future practice.

That could include anything from a failure to double-check an eyewitness account or a flawed police lineup to a defect in court hiring practices.

The weekend conference at the Quattrone Center served as a curtain-raiser for the approach.

“The criminal justice system is a gigantic enterprise,” said John Hollway, executive director of the Center, which was established last year.

“We often lose sight of the fact that its goal is to get the right guy—in the right way,” he added, echoing one of the recurring themes of the conference, entitled, “A Systems Approach to Conviction Integrity.”

But like any paradigm-busting idea, it raises some hard questions.

Would focusing on system flaws allow bad prosecutors and cops to escape accountability?

What good are such efforts if the money needed to help an understaffed public defender’s office or reduce a crowded court docket isn’t forthcoming?

What about one of the gravest “system flaws” of all: the systemic racism that many believe has put a disproportional number of African Americans and Latinos in the nation’s prison and jail system?

And not least, why should any of the thousands of people involved in the day-to-day administration of America’s criminal justice system buy in?

The answer to the last question at least offered some reason for optimism. It was striking how many of the participants, many of them veterans of the system, believed the time had come to try a new way of thinking.

“No police officer I know wants to arrest the wrong person,” said Sean Smoot, director and chief legal counsel of the Police Benevolent and Protective Association of Illinois.

But mistakes happen, he admitted, especially when individual components of the justice system don’t bother to work together.

“The police wash their hands of a case after they hand it to the DA, who in turn washes his hands after handing it over to the courts—who then (don’t think about it) after handing it to corrections,” he said.

“But we’re all responsible when there’s an innocent man in jail—and especially when the real criminal is still out there.”

Dr. Leape, who addressed the conference on the first day, was not the only example that would-be system reformers could use as inspiration.

How Flying Became Safer

Christopher Hart, vice chair of the National Transportation Safety Board (NTSB), described how a systems approach to correcting aviation errors has led to a 65 percent decline in the rate of fatal air accidents between 1997-2007.

Called the Commercial Aviation Safety Team (CAST), it invites pilots, airline managers and even maintenance workers to discuss confidentially any problems they identify and pass it up the hierarchy for action.

“Everyone has to think out of their stovepipes, and think of the entire system, not just their part of it,” said Hart.

But fixing systems that go wrong in medicine and aviation is made easier by the fact that there are national regulatory bodies responsible for oversight that can mandate changes in each of those areas.

That’s not the case in America’s criminal justice system, which is actually a sprawling empire of generally autonomous county, city and state justice administrations.

Even getting defense attorneys and prosecutors in the same county to work together would represent a sea change.

Nevertheless, Miiwaukee DA John Chisholm, who won national attention for his partnership with county public defenders, believes his colleagues around the country are ready for it.

“This is a really exciting time,” he told the conference. “For the first time, the criminal justice system is opening up and saying we need a redesign.”

Fixing Errors

To some extent, innovators around the country have already begun to work out new practices aimed at detecting how and why errors occur—particularly in wrongful convictions.

Several DAs have established “Conviction Integrity Units” to look into evidence—sometimes years after the fact—of misconduct in their offices.

“It’s not just about winning or being tough on crime—it’s about what we can do to improve,” said Dallas County District Attorney Craig Watkins, who launched the first such unit in the country in 2007. .

EDITORS NOTE: For a closer look at Conviction Integrity Units, please see TCR’s March 27 story by Hella Winston, “Wrongful Convictions: Can Prosecutors Reform Themselves?”

Similarly, Jeff Adachi , who heads the San Francisco Public Defender’s Office, borrowed from medical error-correcting techniques to establish a “check list’ for each of his 92 attorneys to follow when they handle cases ranging from police misconduct to deportation.

“If you’re not doing this, you’re committing malpractice,” he said.

But a key hurdle to any reform –especially one aimed at changing a long-standing practice—is the ‘cultural’ resistance common to large organizations.

“Our central challenge has been translating policy (change) so that a cop on the beat understands and accepts it,” said Capt. Francis Healy, legal advisor to Philadelphia Police Commissioner Charles Ramsey.

Philadelphia cops were only able to develop new protocols for interviewing witnesses—introduced this year—after intensive training, Healy said.

“All that has to happen is one sergeant rolls his eyes” in the midst of describing a new policy, and young officers pick up the idea they can ignore it with no retribution, Healy observed.

But he noted that the Philadelphia Police Department now collaborates with the Innocence Project—a partnership that would have been unthinkable five years ago.

Chisholm, whose office will participate in the Sentinel Events Initiative, believes that changing the adversarial approach that characterizes the system today is ultimately in the system’s self-interest.

A collaborative approach —in which prosecutors, police, public defenders, pretrial agencies and even public health services recognize they have common goals in ensuring that justice is applied fairly and equitably—can restore public faith and trust.

“Without that,” said Chisholm, “the system cannot work.”

Stephen Handelman is Executive Editor of The Crime Report. He welcomes comments from readers.

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