The Paradigm Shift in Criminal Justice

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james doyle

James Doyle

We may look back on 2014 as the year in which the criminal justice system finally agreed to see itself as a system.

Of course we have always used the phrase “criminal justice system,” but we usually have only a vague ecosystem in mind: something like a pond or a swamp, where choices made on the near coast produce mysterious unanticipated consequences on the far shore.

This mindset warps the way we diagnose our problems.

We are pretty much addicted, for example, to the habit of seeing a wrongful conviction as the work of a single bad technique (the conventional non-blind lineup or unreliable bite-mark comparison), or a lone “bad apple” operator (a clumsy cop, a sleepy defender, or a prosecutor who hides exculpatory evidence).

This way of thinking shapes the way we see our solutions, too, leading us to devise isolated fixes and patches that simply relocate the problem. Swab every burglary scene to improve the property crime clearance rate, and (surprise!) you create a gigantic rape kit backlog in the lab, and paralyzed dockets in the courts.

But important players in American criminal justice have been moving to adapt the core insights of safety reformers in aviation, medicine and other fields to criminal justice.

Like criminal justice, these fields are fragmented, complex, high-risk, high-impact systems.

What else could they have in common?

Using data compiled from close analysis of hundreds of accidents, these fields have learned that the source of errors is not people, but people in systems, and that solutions lie not in harsher discipline and punishment but in a shift toward a culture of safety that focuses on risk, not blame.

As one aviation safety expert puts it, “How many people have to trip on a step before you stop blaming the klutzes and start thinking about lowering the step?”

The easiest place to see concrete signs of this shift in criminal justice is in recent borrowings of particular tools and terms from other fields.

The San Francisco Public Defender’s office, for example, draws on the lessons offered by physician Atul Gwande in his book, The Checklist Manifesto, in developing a series of checklists for defenders.

The Police Foundation is at work on mobilizing the aviation community’s practice of learning from “near miss” events to create a registry of officer safety incidents. These efforts have drawn support from the Department of Justice’s Bureau of Justice Assistance and office of Community Oriented Policing Services.

And there is more going on here than stealing flashy vocabulary. The current shift resets the most basic fundamentals of how we see criminal justice.

The National Institute of Justice (NIJ), for example, has launched a pioneering Sentinel Events Initiative.

The SEI hopes to exploit medicine’s insight that sometimes, as Dr. Lucien Leape noted in the patient safety context, the person at the sharp end of the system (detective or lawyer) has been set up to fail by latent system defects that will threaten the next practitioner in the next case unless they are identified, understood, and repaired.

The NIJ Sentinel Events Initiative has been organized around the concept that many things have to go wrong before we incarcerate an innocent man, or release a guilty one.

Look carefully at any wrongful conviction and you see that mistakes abound. The cops erred; the technicians erred; the prosecutors erred; the defense erred; the judge and the jury erred; the appellate court erred, too.

Clearly, it can’t be that all of these people acted deliberately to cause the wrong result, so trying to change their motivations won’t help. None of their errors alone would have been enough to cause the wrong result. The errors combined and cascaded; then there was a tragedy. A wrongful conviction, like a fatal dose of the wrong medication, is an “organizational accident.”

The correct answer to the question “Who is responsible for this wrongful conviction?” is the same as the answer to the question “Who is responsible for giving the wrong drug to the wrong patient?”

It is: “Everyone involved, to one degree or another,” if not by making a mistake, then by failing to catch one.

And “everyone” in this context includes not only cops, forensic scientists and lawyers at the sharp end of the system, but also legislators, trainers, policy makers, funders, and appellate judges far from the scene of the event who dictated the conditions under which the sharp-end operators work.

As Jim Dwyer wrote in frustration about a recent exoneration in the New York Times, nothing is simple: “The errors in this case, as in a serious plane crash, are owed the attention of the police, prosecutors and the judiciary. More than two digits in a phone number were misdialed.”

Of course, individuals should be held accountable for deliberate deception or manipulation of the system.

But aviation and medicine teach us that we can’t discipline our way out of jeopardy by punishing lone bad apples. In fact, exclusive focus on punishing bad apples drives useful reports that could illuminate system weaknesses underground. In the view of medical and aviation safety experts, every mistake or near miss that we catch can be a treasure trove of information if we would only look.

And safety and error reduction efforts across other industries show repeatedly that once we pivot from fixing blame to eliminating risk, we can make important improvements.

Recognizing that fact, the NIJ Sentinel Event Initiative (SEI) has now launched an effort to evaluate critically whether criminal justice practitioners and policy-makers can replace our reliance on sporadic efforts at discipline with a consistent practice of non-blaming, all-stakeholders local reviews of wrongful convictions, wrongful releases, “near misses” and other sentinel events.

SEI first staged an intensive Expert Roundtable that engaged law enforcement leaders, prosecutors, victims, defenders, and relevant social and forensic science research communities in a critical examination of the concept.

Next, the NIJ, with the aid of the Department of Justice Diagnostic Center, will pilot the approach in several jurisdictions, testing whether this approach to creating a “forward-looking accountability” focused on limiting future risks can developed as a permanent element of the culture of criminal justice.

It is anticipated that (if appropriations allow) further research and larger demonstration projects built on this system-conscious foundation will follow.

The recognition that the components of the criminal justice system are not independent screens that can prevent error by repairing themselves internally, but elements of a system that constantly impact each other and are constantly impacted by the overall environment, has opened access to a gigantic literature of empirical and theoretical examination aimed at safety.

It ranges from detailed studies of events like the Chernobyl meltdown and the space shuttle Challenger launch to general investigations of how accidents happen.

The interdisciplinary Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School , just launched with a $15 million endowment, has made the powerful implications of this radical shift in perspective the focus of its inaugural April symposium, “A Systems Approach to Conviction Integrity.”

The two-day meeting on April 4-5, 2014, will feature some of the most experienced voices in the identification and implementation of system-wide error reduction, combining them with nationally recognized criminal justice practitioners to translate lessons from aviation, healthcare, manufacturing, etc. into possible reforms in criminal justice.

The Quattrone Center has defined its core mission as bringing system-conscious, rigorous, data-driven science and technology to criminal justice, to help ensure the fair administration of justice.

The rise of a systems approach to error reduction in criminal justice should be welcome news to prosecutors and police who want to protect our communities by holding criminals accountable, to defense attorneys trying to protect the innocent and preserve the constitutional rights of the accused—and to all of us who want to live in fair, safe and just communities.

James Doyle, a Boston defense lawyer and author, is 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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