By James M. Doyle, a lawyer with Carney & Bassil and former head of the Public Defender Division of the Massachusetts Committee for Public Counsel Services, a statewide public defender agency. Doyle is the author of a recent ACS Issue Brief, "From Error Toward Quality: A Federal Role in Support of Criminal Process."
Why not a comprehensive, blue ribbon, top-to-bottom review of the American criminal justice system?
The fact is, no one can think of an objection, and legislation submitted by Sen. Jim Webb and Rep. William Delahunt that would create a National Criminal Justice Commission to conduct that review has support from all points on the criminal justice spectrum and co-sponsors from both sides of the aisle. The odds favor eventual passage, and that's an excellent development. Any review that takes a grown-up look at the American criminal justice system as a system rather than as an archipelago of isolated (and often adversarial) agencies and functions is a step in the right direction. (For more on this, watch video of an ACS panel on an integrative approach to justice.) Blue ribbon commissions draw talented members who deploy broad credibility in support of their recommendations.
But if the only thing this top-to-bottom review leaves behind is another report -- even if it's a great report with terrific recommendations -- it will not realize its full potential. The Commission's report can be the beginning of a process, not the end of one. It can reveal something for the best people in criminal justice to do between today and the inevitable next National Commission.
So far, criminal justice is missing the infrastructure for an enduring, bottom-to-top feedback loop, one that persistently communicates the experiences and insights of the victims, cops, lawyers, judges, and probation and corrections officials at the sharp end of the system both to fellow practitioners in scattered jurisdictions and to remote policy-makers: the legislators, and funders whose decisions shape (and often deform) the practitioners' working lives.
In a recently released issue brief, "From Error Toward Quality: A Federal Role in Support of Criminal Process," I propose that the criminal justice system develop a mechanism, as medicine and aviation have, to create this loop by identifying "sentinel events"-- wrongful convictions, wrongful releases, and near misses in both categories -- that help us avoid future errors and to analyze and share their lessons. Supporting the ongoing practice of dispassionate, fine-grained, all-stakeholders review of these mistakes could provide a revolutionary new approach to creating a reliable system.
The adversarial trial before a citizen jury dramatizes the relationship between an American and the state, and its hold on our imaginations overshadows the fact that the adversarial contest functions as the final inspection stage of a long and complicated process. But in every industry, end-stage inspection has been shown to be a very problematic means of quality control because everyone hates to be inspected. That may be why the jury trial inspection hardly ever happens: mandatory minimums are enacted; plea leverage is ratcheted up; the number of actual jury trials sinks to the vanishing point. The endemic human tendency to "game" any looming inspection also takes a toll. Ongoing controversy over law enforcement failures to preserve or disclose exculpatory evidence illustrates this tendency to influence the inspectors' view of things by simplifying the picture that the inspector is allowed to review. When Missouri's prosecutors come out for eliminating the state-wide public defender system, human discomfort with inspection is part of the reason.
A striking element of the American criminal justice system is its lack of any mechanism for routinely taking account of the causes of error. Searches for bad apples occur from time to time: civil suits are sometimes filed, internal affairs investigations are performed, the media pillory is sometimes occupied by a corrupt or incompetent practitioner, but these vehicles only drive accounts of other errors underground, and inspire frantic efforts to evade or deflect blame for them in place of efforts to learn from them. Besides, these disciplinary and punitive inspections misdiagnose the nature of error, which as aviation, medicine, and a host of other fields have proved are not the sinister work of bad apples acting alone but the result of small mistakes (that are necessary but not sufficient) interacting with each other and with latent defects in the system -- latent defects that will still be there -- waiting for the next mistake that comes along. A wrongful conviction or a wrongful release happens because an imperfect system has failed to take adequate account of the fallibility of its human components. We have to take account of both individual errors and system weaknesses.
Medicine and other fields have successfully mobilized "all-stakeholders" teams to analyze and report on known errors and near misses. The factual reports these efforts have generated have been illuminating, but more importantly, the practice of compiling system-oriented reports has been the starting place for mobilizing a continuous quality improvement movement that, among other achievements, has developed practices that saved 120,000 patients' lives in 12 months. The range of mistakes and "near misses" that frontline practitioners might nominate for review is very broad, and it is not limited to mistaken outcomes; it can include astronomical costs. ("How in Hell did we spend $75,000 on a simple drug possession case? And why?").
The practitioners at the sharp end of the system take the blame for mistakes, and often they deserve a share of it. But they don't deserve all of the blame, and sometimes blame is beside the point. If the National Commission on Criminal Justice -- from its perch far off at the blunt end of the system -- wants to promote an active effort to avoid the next mistake or to mitigate its effect it has to mobilize those practitioners and make sure their efforts to improve system reliability are not heroic exceptions, but can be part of everyday routine -- and that they are heard when the next Commission comes around.
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