Learning in Criminal Justice: Small Cases, Big Lessons

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James Doyle

Jim Dwyer tells this story in The New York Times.

Anthony, a 28 year-old African-American school bus driver with no criminal record, is in the passenger seat of a friend’s car when the police pull it over for a burned-out brake light. The cops search the car, and they find a pipe with marijuana residue in the console. In New York, simple possession of marijuana leads only to a civil violation, but the police describe this pipe as being “open to public view”— so they arrest both men and bump the charges up to misdemeanors.

Because of that charge, Anthony is automatically and immediately suspended from the job he has held for seven years, pending the disposition of the case.

In court, the Assistant District Attorney offers deals to the two defendants. The driver, who owned the pipe, takes one. As for Anthony, the passenger, the prosecutor says, “Adjourn the case for a year, don’t screw up, and then we’ll drop it.”

Anthony can’t take that deal; it would mean a year out of work. “OK, ninety days,” the Assistant DA offers. But that’s still another three months out of work on top of the month already spent waiting for court. Anthony can’t take that deal either.

Nothing happens, the case is adjourned: come back some other day.

So, another man is added to the unemployment lines and another defendant is added to next month’s docket list, all for sitting next to a console containing a friend’s marijuana pipe. He will stay on both lists until further notice.

Who thinks that’s a good result?

No one. Who set out to bring it about? Again, probably no one. (According to the new Mayor, marijuana arrests are supposed to be cut back.) Why and how did it happen? It would be interesting to find out.

When criminal justice fails in a spectacular way—for example, in a wrongful conviction discovered after an innocent man has served 20 years—people find it easy to see the point of using the model employed by the National Transportation Safety Board: investigate the event and see if we can learn some lessons.

This is the thrust of the recent Special Report of the National Institute of Justice, Mending Justice: Sentinel Event Reviews.

It’s a good idea.

But we shouldn’t overlook a key point made by NTSB Vice-Chair Christopher Hart, keynoting a recent Symposium at the Quattrone Center for the Fair Administration of Justice. Aviation safety hasn’t been improved by studying fatal crashes only; aviation looks at “near misses,” too.

In fact, Hart pointed out, aviation learns some of its most productive lessons from “high-frequency/low impact” events: from debris on the runway, spacing violations, and other everyday mishaps that haven’t yet caused tragic outcomes.

Aviation learns from fender benders as well as smoking wrecks. Fender benders (and “near misses” and “good catches”) are easier to study. There are plenty of them. No one has to be fired after a fender bender; so you can keep discipline and “forward-looking” accountability aimed at reducing future risk in balance.

In other words, aviation learns from stories like Anthony’s.

There’s probably nothing in criminal justice that fits the specification “high-frequency/low impact” better than the postponement of a low-level drug case. What might we learn if we took a look at Anthony’s situation and asked what caused the miniature disaster?

I think we’d learn that this little Whiskey Tango Foxtrot episode isn’t so different in its basic etiology from the spectacular wrongful convictions. Both are “organizational accidents.” No individual’s act or decision “caused” this outcome independently; lots of small decisions combined with each other and with latent system features. Only then did we get our grotesque result.

We tend to think that the job of a conscientious justice professional is to protect a presumptively safe system from dishonest, lazy, or incompetent fellow humans. But in Anthony’s case none of the humans violated the rules. No one likes the outcome, but everyone did his or her individual job as they’d been taught to do it.

Does that mean no one is responsible? Safety experts in aviation, medicine, and other fields would say everyone is responsible.

The cops made the stop and wrote the “public view” application; the prosecutors “papered” the case and refused to throw out the misdemeanor; the defense failed to find a way to make the questionable basis for the charge count for something; the judge took the path of least resistance and gave the thing a new date.

And when you tally up “Who is responsible?” you also have to include people far from the sharp end of system who created the environments for the sharp-end practitioners and designed their incentives. What law-makers left the “public view” escalator on the books? Why?

What Compstat guru decided on the “right” number of automobile stops for the cops in that precinct? Was the number influenced by a “high crime” label afflicting the neighborhood—a number that was generated by statistical analyses of racially imbalanced history? Who was the guru responding to?

Did anyone reckon the price on the family and community of another unemployed (and maybe unemployable) young African-American man?

Did the professionals zig instead of zag because they thought they had to? Had trials become practical impossibilities because the sharp-end caseload and staff ratios were completely out of control? Was the aggravated “public view” charge a reflex among the police because it would give the prosecutors enough plea bargaining leverage to guarantee that no defendant ever went to trial?

Did the prosecutor refuse to “break-down” Anthony’s case to a civil violation because the “market price” of today’s marijuana case had to be supported in order to deal with tomorrow’s even more out-of-control caseload by using its leverage to generate the next plea? Did the judge just push Anthony along to another date because judges are evaluated mainly by whether they end each day with a clean list?

The answers to these questions can only be found if we develop a way to mobilize an all-stakeholders analysis of these events.

No actor in any individual “silo” can answer these questions for himself or herself; each needs to learn the impact of their actions on the other players upstream and downstream, and to recognize the impact on themselves of the choices made by those invisible, distant actors. In these situations, the community where the impact of the practice is felt and the researchers who can explain the aggregate outcome of these cases have to be part of the conversation too.

Someone—in fact, each of the stakeholder groups—should be licensed to call for this all-stakeholders review when one of these Whiskey Tango Foxtrot outcomes, big or small, needs attention. (We can’t count on Jim Dwyer all the time.) It shouldn’t take a 15-year class-action lawsuit to start the conversation; it should become a matter of routine.

We can “bridge the divide” between the system and the community.

Looking at criminal justice fender benders in low temperature, non-blaming, all-stakeholders reviews can help to teach us why the individual choices that cumulatively made up the disturbing aggregated statistical picture were made. It can keep the statistical knowledge and the narrative grit in useful tension. It can identify individual responsibility for collective outcomes.

And it might help to teach individual criminal justice system actors who now feel forced to zig instead of zag by overwhelming clearance-rate, caseload, and docket list pressure how much of that pressure on criminal justice practice is self-inflicted, and inflicted for no good reason.

NIJ chose a design motif of gears and switches for the cover of its Special Report on the potential of criminal justice system sentinel events, but safety specialists might say that our current approach argues for a different model: the slime mold.

Slime mold is a simple organism of creeping jellylike protoplasm that has no brain, no central nervous system: in fact, slime mold doesn’t have much of anything. But slime mold does find the shortest way through mazes, and it responds to stimulus in its environment: for example, one scientist has watched it emulate the Tokyo subway system map when Tokyo “landmarks” were set out on a lab table.

We can respect the slime mold’s achievements without wanting to imitate its approach—especially where people’s lives and the public’s faith in the justice system are at stake.

By treating a story like Anthony’s as just as much a serious “sentinel event” as a spectacular exoneration after a wrongful conviction we can make some progress.

Editors note: Jim Doyle introduced the concept of system error reporting in an earlier column, The Paradigm Shift in Criminal Justice. Read it HERE.

James Doyle, a Boston defense lawyer and author, 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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