When Justice Fails, Here’s How to Begin the Healing

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Justice for All March, Wash DC 2014. Photo by fuseboxradio via Flickr

Justice for All March, Wash DC 2014. Photo by fuseboxradio via Flickr

When I was a college freshman I had a summer job at a New York law firm that defended most of the medical malpractices cases in the state.  I did scut work: filed papers, answered phones, and arranged deposition dates.  But the firm belonged to a friend of my father, and so my not-too-exacting duties also included accompanying that veteran advocate to expensive lunches with his medical clients.

Our doctors’ primary mealtime theme was the unbelievable ingratitude of the entire tribe of patients.  But the patients’ unreasonable expectations provided another favorite.

“Who do these people think we are?” some Chief of Surgery or other would demand, his trial in the aftermath of a tragedy looming,  “Some sort of supermen?”

My boss’s own attitude towards his clients stopped well short of reverence, and he approached these Four Seasons luncheons in a puckish mood.    (“Maybe it would be better if you cut Dr. Green’s steak for him, Jim,” he’d suggest helpfully.) He was amused by the doctors’ impatience with hardships caused by the Olympian status and reputation for perfection that they basked in and had energetically cultivated.

Still, there was always more than simple ego gratification implicated in the question of patients’ trust in their physicians.  Doctors do know more about medicine than their patients, and when a medical issue arises, it is much better that patients follow their doctors’ advice rather than, say, Bill O’Reilly’s, or Google’s.

Something similar might be said in the world of criminal justice.

There are probably prosecutors who take an unhealthy personal pleasure in their reputation for being infallible doers-of-justice, but there are also probably cases that prosecutors should win, but might lose, if it weren’t for public faith in their rectitude.

It is a good thing that citizens trust the police enough to follow their directions promptly in an emergency.

Prestige has its uses. Researchers believe that people principally follow the law not because they fear punishment, but because they trust the law, the justice system and its operators.

But in our era of DNA exonerations, body cameras, and ubiquitous cellphones, the old prestige, based on the mystical aura of perfection, is simply impossible to sustain.

Mistakes happen; they happen every day.  Now, everybody knows they happen.

Even if today’s mistake didn’t happen on your streets or in your courtrooms, someone else’s mistake is blaring on your television or social media anyway.   The nature of the contemporary media guarantees that the incidents they share with the public are the most damaging, not the least damaging.  The media deal in the spectacular.

Public trust isn’t a given anymore; public trust has to be won.

And, from now on, the justice system’s efforts to win public trust will stand or fall on how the system and its practitioners confront their own mistakes.

This new reality is a challenge to a great many people and institutions in criminal justice that over the years learned to see their job as being simply to give out as little information as possible.  Don’t release the body camera video.  Don’t explain the “why” of the wrongful conviction.

The goal that always dictated this conduct has been “Don’t get sued.”  If you are going to get sued, don’t hand out any ammunition.

But with amateur videos and tweets flying around the web simply hunkering down is a dubious strategy.  It isn’t just that chasing temporary secrecy to cloak your fallibility is useless; it’s destructive. It kills public trust.

The health care incarnation of this problem has generated a new approach, a strategy of “Disclosure and Apology” following a medical error that harms a patient.

 

There are variations, but the core of the concept is that patients must be notified promptly of a medical error that causes harm and the practitioners must accept responsibility for their roles.

Advocates for the Disclosure and Apology movement point to pilot programs where employing that approach  actually cut the number of lawsuits and lowered the malpractice payouts when compared with the traditional sealed lips,  strategy.

But these pragmatic advantages are less important to Disclosure and Apology supporters than a more central point:  The mission of a hospital is not avoiding lawsuits; the mission of a hospital is healing.

Simply avoiding lawsuits is not the mission of the criminal justice system either.

And while the translation from this medical movement to criminal justice reality is only now beginning to be researched   (by policing expert Dr. Matt Stiehm for example),  the resonances between the two situations are strong enough to warrant a look.

As Dr. Lucien Leape, one of the founders of the patient safety movement has explained, there are both theoretical and practical reasons supporting Disclosure and Apology.

It is required by ethical imperatives: patients are entitled to know, and doctors are not entitled to conceal, harms.  It is also demanded by practical therapeutic imperatives: Full disclosure seems to be essential to healing.

In criminal justice, as in medicine, an incident damages trust, even if it’s the citizen’s and the community’s trust in the practitioner, the agency and the justice system, instead of the patient’s trust in the doctor that is harmed.  This isn’t a challenge exclusively for the police; others—ineffective defense lawyers, for example—are enmeshed in the same problem.

The damage can’t be repaired if we simply try to ignore it.  Silence rubs salt in the wound.

And the wound won’t be healed if we say only “Sorry that happened to you.”

That statement of impersonal sympathy, as Dr.  Leape points out, “Is much easier, but lacks the essence of true apology, which is to take responsibility for the harm and express true remorse.”

Bare statements of sympathy can be, paradoxically, more harmful than silence because they communicate “We are sorry this happened, but we don’t much care why it happened, or whether it happens again.”

Yes, patients want to see that the harm they suffered is recognized and that they will be compensated.

But they also want to see some evidence that their suffering will inspire an earnest effort to avoid inflicting suffering again in the same way.

That is true of persons harmed by criminal justice errors too.   And, besides, the “persons harmed” by criminal justice errors who need healing include the practitioners themselves.  The ineffective defense lawyer whose client is later exonerated and the frontline cop involved in a lawful (but traumatic and avoidable) shooting can’t just be sent off to treat  their own wounds.

Making a shift to something like a “Disclosure and Apology” approach in criminal justice will be no easy task.   There are plenty of people in criminal justice who prefer to live by the motto of John Wayne’s cavalry officer in She Wore A Yellow Ribbon:  “Never apologize; it’s a sign of weakness.”

But there are signs that the shift might be beginning;  not just in individual, retail, ways but on a system-wide, capacity-building basis.

There are moves to create in criminal justice what the National Transportation Safety Board provides in transportation:  a reliable, multi-perspective examination of events that produces a comprehensive analysis and is shared with the public, and that the public knows will be reliable and shared.

That is the goal of efforts like the National Institute of Justice’s collaborative explorations of “sentinel event” reviews.  It is behind the National Commission on Forensic Science’s recommendation for “root cause” analysis of lab errors as a routine practice.  The Bureau of Justice Assistance has also adopted a learning agenda, and has just awarded $2,100,000 to Polis Solutions and CNA  to provide technical assistance for a de-escalation training program that includes a de-escalation sentinel event incident analysis website.

Inertia will inhibit the growth of this initiative.  Shame at failure and fear of litigation will slow adoption in particular places.

Even so, one of the great and universally accepted principles in the criminal justice trenches is “If you can’t do the time, don’t do the crime.”

It isn’t a great leap from that creed to “If you can’t take the lawsuit, don’t do the screw-up.”

The best way to avoid being sued is to avoid doing the harm in the first place.  At some point you have to recognize that by obsessing about hiding problems from outsiders you are raising the risk that you will hide fixable problems from people in your own organization—even from yourself.

James Doyle

James Doyle

Hiding risks and managing risks are not the same thing.

It isn’t a great leap from recognizing that fact to learning to apologize for the last harm—and using its lessons to avoid the next one.

James Doyle, a Boston defense lawyer and author, is a frequent commentator for The Crime Report.  He was a 2011-2014 Visiting Fellow at the National Institute of Justice. The opinions expressed here as his own. He welcomes comment from readers.

 

 

 

 

 

 

 

 

 

 

 

 

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