Cleaning Up the ‘Ecosystem’ of American Justice

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Justice professionals are “deceiving” themselves if they believe their decisions and actions are infallible, Attorney General Eric Holder warns in a volume of essays released today analyzing flaws in America’s criminal justice system.

“Practitioners in an adversarial system that probes, refutes and defends do not, in general concede fault readily,” Holder declares. “Yet we are missing a chance to improve outcomes if we ignore the opportunity for growth that an honest assessment of error presents.”

The volume, entitled Mending Justice: Sentinel Event Reviews, introduces to a wider public for the first time a pilot project launched last year by the Department of Justice to explore whether techniques long used by the medical and aviation communities to identify errors that result in tragic consequences can be applied to the nation’s sprawling and complex criminal justice system.

“Because ours is an institution set up to discover the truth, tolerance for mistakes is exceptionally low,” Holder wrote in his introduction to the volume, published by the National Institute of Justice (NIJ). “But as justice system professionals, we are deceiving ourselves if we think our decisions and actions are infallible.”

The book’s publication comes as police, courts and other key justice agencies around the country are facing withering criticism for wrongful convictions, police use of force against unarmed civilians and racial profiling. But the system has also come under fire for sentencing and parole decisions that have endangered public safety.

Too often, such mistakes are handled by identifying a “bad apple” or scapegoat—a rogue prosecutor or cop—who can be singled out for punishment, observed James Doyle, a former NIJ Visiting Fellow whose research set the project in motion, in the opening essay.

But it is more difficult to acknowledge that a series of small errors or mis-steps by the prosecutor’s assistants or superiors—or flaws in the system itself—may have created the environment that allows larger tragedies to happen, he wrote.

Civil aviation and medicine have long since abandoned the “blame game” by developing systematic reviews of their procedures to create a “culture of safety”—a decades-old effort that has sharply reduced the number of preventable fatalities in hospitals and air travel, added Doyle, a Boston attorney who served as head of Massachusetts’ Public Defender Division.

For example, an investigation into an incident in which the wrong person was subjected to surgery identified 17 separate errors along the way—ranging from draping the patient’s face so no one could identify him properly to misplacing medical charts.

Applying this approach to criminal justice won’t be easy in a system that comprises thousands of different agencies at federal, state and municipal levels.

“But it is clear that the criminal justice process at least functions as an ecosystem,” wrote Doyle. “like a pond or a swamp in which something (funding for example) dumped on the near coast has mysterious and unanticipated effects on the far shore.”

The first test of whether the approach can work is already underway. The DOJ has funded “beta” projects in three cities—Milwaukee, Philadelphia and Baltimore—which will examine a serious mistake that could be considered an indication of deeper flaws in their justice systems, called a “sentinel event.”

In each city, the analysis of these “sentinel” events will involve prosecutors, defense attorneys, police, probation officials, among others, in a closed-door, fact-finding exercise that will come up with recommendations for fixing glitches in their system early enough to avoid breakdowns that result in injustice.

In most cities, these players traditionally keep their mistakes and fact-finding reviews to themselves—rarely stepping over turfs that are jealously guarded, many of the essayists acknowledge.

Milwaukee District Attorney John Chisholm, one of the contributors to the volume and a participant in Milwaukee’s “beta” exercise, told The Crime Report last week that such a system-wide approach might have prevented the chain of events in Ferguson MO that spiraled out of control following the police shooting of an unarmed teenager.

“Sometimes it’s as simple as people having better information,” Chisholm said.

All the “beta” projects are expected to conclude by next year, and the DOJ hopes they can establish a template for similar “sentinel event review” exercises around the country.

“It is time we explore a new, system-wide way of responding, not by pointing fingers, but by forthrightly assessing our processes, looking for weaknesses in our methods, and redesigning our approach so that the truth will be more attainable,” wrote Holder.

Among the 17 contributors to the volume are: Jim Bueerman, president of the Police Foundation; Russell Canaan, a judge in the District of Columbia Superior Court; Gregory Matheson, former Laboratory Director of the Los Angeles Police Department; Madeleine deLeone, executive director of the Innocence Project; Michael Jacobson, director of the institute of State and local Governance at the City University of New York and former head of the Vera Institute of Justice; George Gascon, San Francisco District Attorney; and Jennifer Thompson, whose mistaken identification of a rapist led to the conviction of an innocent man and who is now an advocate for judicial reform.

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