In her recently released broad-ranging plan for reforming criminal justice, Democratic presidential contender Sen. Kamala Harris (D-CA) called for a National Police Systems Review Board, based on the model of the National Transportation Safety Board (NTSB), for the review of police shooting cases.
According to her plan, such a board would “collect data and review police shootings and other cases of severe misconduct, and work to issue recommendations and implement safety standards based on evidence revealed in these reviews.”
It was one of the elements of the former California Attorney General’s justice blueprint that got the most attention.
You might expect that, for someone like me—who has been hectoring the criminal justice world about picking up the lessons that the safety experience of fields like aviation and medicine provides—this would be good news.
Well, yes and no.
There is considerably less to Harris’ proposal than meets the eye.
Harris’ proposal is not “innovative,” as some commentators claim. Barry Scheck and Peter Neufeld suggested using the NTSB as a model for examining errors over 20 years ago.
Moreover, the President’s Task Force on 21st Century Policing included “sentinel event reviews” of bad outcomes on its list of recommendations. Some police forces, Tucson’s for example, already conduct serious “critical incident reviews” of dangerous encounters.
The federal Department of Justice, at least when it has a properly led and resourced Civil Rights Division, has the power to review and prosecute police shootings and other serious police criminal misconduct.
It isn’t even clear that Harris’s proposal is especially serious. It makes no effort to state (or, perhaps, it makes an effort not to state) whether it contemplates “performance reviews” of individual frontline practitioners or full, forward-looking, “event reviews” that analyze systems weaknesses in training, resources, communication, and policies in overlapping “silos.”
You aren’t really talking about safety if you aren’t wrestling with those problems—that is, unless you’re looking at prevention of repeats, not simply at blame and punishment for past outcomes.
Trying to blame and prevent at the same time will cripple your pursuit of both of those goals unless you have taken the time to disentangle them in your own mind.
At this point it is possible to marshal a compelling literature that undertakes this work by applying modern Safety concepts to criminal justice.
A bibliography compiled for the National Institute of Justice by National Criminal Justice Reference Service librarian Scott Hertzberg is regularly updated to track safety materials with criminal justice cross-over potential.
Even in the specific area of police shootings there have been multiple sophisticated analyses by Joanna Schwartz, John Hollway, Sean Smoot, David Klinger, Lawrence Sherman and others that mobilize safety concepts and draw on the experiences of other fields in utilizing them. All of these writers argue for widening the lens beyond the cop who pulled the trigger.
Harris’s proposal doesn’t tell us much about how they will be incorporated into the planning.
But the fact that this proposal is less than it might be does not mean that it is nothing.
Yes, it could be that Harris sees “safety” and “NTSB” mostly as magic words: ways to talk about crime that will finesse her own record of discordant choices as San Francisco’s District Attorney in police shooting cases. Maybe “safety,” for her, is just a way to promise to do something—but without backtracking on what she has done already and alienating the people for whom she did it.
Maybe the safety Harris is thinking of is her own.
Even so, in the perverse fundamental logic of our public life, politicians find it first advantageous to say something, then it becomes attractive to send the staff off to seek advice, to read, and to learn. This may be exactly backward, but it’s how things go.
After all, they think, why would you invest energy in learning about something you can never talk about?
But Safety! Who can be against Safety? The fact that Harris sees an advantage here might be an important harbinger of things to come. Others will see it too.
Now, the challenge is to make sure we know what Safety means and don’t vandalize an opportunity to make it work in criminal justice—to leave behind our sterile battle over Crime Control v. Due Process, and start some productive investigation into ensuring everyone’s safety: the citizens’, the cops’, and the communities’.
Is Safety a Palliative, or a Disrupter?
Harris is caught in a tough bind: her prosecutorial experience, which once seemed to be a sterling credential, is now a liability among many activist Democrats. Talking about Safety could seem to present a plausible way out: a way to thread the needle between police unions and Black Lives Matter activists and to calm things down.
But take a look at what Safety practice would require in a well-known case from Harris’ term as San Francisco DA and you can see that far from offering a muted version of business-as-usual, the Safety perspective upsets the whole apple cart.
When San Francisco police broke down a door inside a group home for mentally disabled people in 2008 and shot a 56-year-old resident, then-District Attorney Kamala Harris didn’t charge the officers with a crime.
Instead, she prosecuted the schizophrenic woman who was severely injured in the shooting for assaulting the police.
The jury refused to convict; the case was not retried; and the resident ultimately settled a civil case with the city.
From the Safety perspective the decision whether to charge the cops or charge the victims can be made rightly or wrongly. But that decision is seen as a bad place to stop. If you want to understand the outcomes generated by a complex system you need an all-stakeholders approach, specifically aimed at “forward-looking accountability.”
You need to begin by understanding that, prosecution or no prosecution, lawsuit or no lawsuit, no one wants this to happen again. The goal of a Safety approach would be not a report for people to read, but the creation of a vibrant and sustained culture of safety in which everyone is continuously working to included their contribution to a just and harm-free collective outcome.
You need the perspective of the frontline cops, and you need to understand the influences that shaped their choices. What was their training? How were communications handled? How were they equipped? What about the shift work demands? Did the department have a Critical Incident mental health worker capacity?
No one would believe a Safety inquiry could be confined to one “silo:” police, prosecution, or mental health. Did the public health system have plans for summoning police? You need to hear from the patients’ families and the frontline group home workers.
The Safety inquiry can’t end with “Who? You have to ask “Why did people zig when in hindsight we think they should have zagged?”
In important ways the Safety approach also disrupts what we might call the Ecology of Reform.
Neither a single federal entity nor the tradition of handing down wisdom from the foundations and think tanks can accommodate the challenge of a landscape that includes over 16,000 police departments. The center of gravity of a genuine safety effort will have to be in state and local contexts where the harms occur, and the gritty reality of how things are can’t be skipped along the way to how they should be.
Things are as they are for reasons.
Follow the “Our Team” link on any reform-minded organization’s website and you will see an array of well brought up and analytically impressive researchers. Often they have had some experience in the system—a few years as an Assistant United States Attorney, for example—and often that experience has deepened their commitment.
But although they have been in the system, they are not of the system, and they are certainly not going back. The challenges raised by their new 25-point checklist won’t be theirs to confront.
The bet has to be placed on the frontline worker, not on the mandarins in Washington and New York. The reform organizations and entities such as the National Institute of Justice (NIJ) have important roles in supporting the capacity building that safety-oriented reforms require. (The NIJ Sentinel Events Initiative, with which I’ve been involved, provides one example of how this can be approached.)
Expertise, particularly in identifying, harvesting, and interpreting data can play an important role in assisting productive all-stakeholders “event reviews” on the state and local level.
And, as with the NTSB, the centralized entities can play an indispensable role in disseminating the lessons of local reviews throughout the community: illuminating dangerous conditions and influences; emphasizing sources of resilience.
But this means not one new Board, but a whole new paradigm.
Safety as a Fig Leaf
The disruption that Safety thinking promises is at this point long overdue.
The danger is that Senator Harris has seized on a rhetorical flourish that might short-circuit this shift—a way to talk about doing something without doing too much.
“Safety” could easily be hyped on a something-for-everyone basis that forecloses realizing the genuine promise of the robust body of learning that aviation has earned, and medicine and other fields have begun to adapt.
One of the principles of the Safety people is that nothing is ever “fixed.” Any “fix” you contrive is under immediate attack from its environment. That will be true of any National Police Review Board too.
Let’s hope we can look to Safety as a something we will have to keep continuously working to improve, and not stop at a new agency, a new Board.
James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.