Can the Justice System Stop Burying Its Mistakes?

My grandfather and his cousins were all physicians. They shared a mordant sense of humor—a useful coping mechanism in the pre-penicillin era.

My father remembered their persistent teasing of the relative we all called Uncle George about the sheltered existence his specialty afforded him.

“You surgeons are lucky, George,” An orthopedist (or pediatrician, or obstetrician) would say at some point in an evening, “You get to bury your mistakes.”

Medicine has a long way to go, but it has made progress since Uncle George’s day. Dr. Donald Berwick, one of the pioneers in medicine’s patient safety movement, spoke for many in health care when he recognized that “every defect is a treasure”—that every error can be an important source of learning.

“Morbidity and Mortality” reviews are routine. The Joint Commission on Hospital Accreditation now requires programs of “sentinel event” reporting in hospitals. Efforts are underway to mobilize modern IT capabilities to track patient experiences from primary care diagnosis through specialist consultation and treatment, to resolution, and to inform the “upstream” caregivers of the accuracy and consequences of their early judgments.

By learning whether their diagnoses have been confirmed or refuted (and how), the primary care doctors can recalibrate their confidence in their own early processes.

Maybe the patient should have been asked more questions, or different questions. Maybe more tests, or different tests, were needed.

Burying Criminal System Errors

The recent announcement by the National Registry of Exonerations that it had recorded the 3,000th exoneration since 1989 indicates that the American criminal justice system can’t hide all of its disasters.

But don’t mistake the Registry’s list for proof that the criminal system isn’t trying—and trying very hard—to cover up its failures, and to enjoy Uncle George’s level of impunity.

The Registry’s wrongful conviction compilation doesn’t alter the reality that the cover-up process usually succeeds.

Innocent people are left penned in prisons. Actual perpetrators are left free on the streets.  Tactics leading to “lawful-but-awful” police shootings stay in the field manual. Dangerous psychopaths are released. Deserving victims of mistakes are denied compensation.

Meanwhile, the public is fed the spurious image of a system that is purring along—and practically infallible.

Don’t Look Back

But let’s focus on something less obvious—on the dangerous fact that when the criminal system’s designers and operators hide bad outcomes from the rest of us, they are also hiding the lessons of those events from themselves.

We are operating criminal justice as a closed (ironically, the technical term is “open-loop”) system—a system without meaningful feedback loops.

In the process, practitioners are not simply forfeiting corrections and refinements in techniques and practices (although they are doing that); they are also losing sight of the purpose—and thus of the rewards—of their own daily work.

An elaborate architecture of devices, habits and cultural norms, designed and constructed to protect practitioners from embarrassment, uncertainty and sanction, corrodes recognition of why and how what the practitioners do (and don’t do) matters.

One cost of letting practitioners work in unreviewable comfort is that we reduce them to the status of cogs in an industrial system.

What you did today, just do that again tomorrow. What happens when I do it? Doesn’t really matter; it’s not your problem.

We Don’t Need (Or Want) To Know

From the outside, it can look as if the whole point of the criminal justice system is finding and exposing errors in police practices, investigations and charging. But that’s not how peoples’ days in the system are spent.

Policing is characterized by a “culture of urgency.” Trial courts are obsessed with clearing their dockets. Might something be wrong? Don’t obsess about it. Decide. Then, just get on to the next one.

Trials are supposed to expose the mistakes, but we deploy an elaborate machinery of “trial tax” threats and inducements to make sure that jury trials hardly ever occur.

Once a conviction is entered, or a police misconduct complaint is deflected, the system works to bury the victims as deeply as Uncle George’s unlucky patients were interred in the graveyards.

Appeals are supposed to catch errors that occur at the criminal trials, but there are no trials in 97 percent of cases.

And when appeals do occur, they are concerned principally with errors objected to by trial counsel. In many places, public defenders are so underfunded, undertrained and overwhelmed by their caseloads that the number of those objections is depressed.

Besides, since appeals are focused on “harmful errors,” appellate courts shrug off the myriad “harmless” errors that are not independently (and inevitably) sufficient to cause a miscarriage of justice.

Actions that create contributing influences and conditions—but don’t constitute flick-the-switch Newtonian “causes”—go uncounted.

Subsequent post-conviction efforts to illuminate errors—for example, errors obscured by the ineffective assistance of trial counsel, or by evidence-hiding trial prosecutors—depend on having new counsel to investigate and bring the claims.

But at the state level, indigents rarely get appointed post-conviction counsel. Federal habeas corpus jurisdiction is characterized not only by a shortage of counsel but also by procedural restrictions, time bars, presumptions of regularity, deference to state courts, and burdens of proof.

It makes the Biblical definition of an impossible task—“threading a camel through the eye of a needle” —look like child’s play.

The civil justice system might seem to offer a substitute. After all, as UCLA Prof. Joanna Schwartz has shown, police departments could learn a great deal by attending to the claims raised in tort litigation.

But before feedback from civil litigation can inform anyone, it has to be worth someone’s time and effort to bring a lawsuit in the first place.

Doctrines of “qualified immunity” (for police misconduct) and absolute immunity (for prosecutorial misconduct), especially combined with the scorched-earth strategies of municipal lawyers defending civil cases, deter civil lawyers from investing resources in pursuing recurrent errors.

“Learning” from Willie Horton, But Not From Kalief Browder

Still, it isn’t true that the criminal system has no feedback loops. Actually, the situation is worse than that.

The system’s actors subsist on a menu of cartoonish feedback generated by Willie Horton and the steady diet of headline-grabbing local “Hortonesque” offenses occurring during probation or pretrial release episodes.

The only lesson a practitioner can derive from them is “It’s better not to release anyone.”

Aggregated statistical feedback about post-release recidivism can be accurate, but still accelerate momentum down mistaken paths. It generates pressure on frontline practitioners to observe a generic “going rate.”

But frontline work is diagnostic, not statistical, and confidence in the diagnosis can’t be calibrated without feedback on outcomes of individual narratives.

The problem with simply spending your days applying the Willie Horton Rule or the statistical algorithm and then never learning the result is that you end up participating in cases like that of Kalief Browder.

Browder was arrested as a boy for stealing a backpack. The court system took three years of his life. In the end, the experience probably killed him.

What Willie Horton’s case and Kalief Browder’s case have in common is that each bore the fingerprints of dozens (if not hundreds) of justice system practitioners—cops, prosecutors, defenders, judges, corrections and probation officers—all doing what they thought was expected and not one of them wanting to bring about the horrific outcome to which he or she contributed.

To many, if not most, of these practitioners the names “Horton” and “Browder” meant nothing. They were just numbers on one day’s docket list.

Professional actors sorting huge caseloads develop a stylized, stereotypical view of a defendant’s future: a hazy sense of what “prison” or “probation” entails—and possess only an abstract notion of who a future victim might be.

De-humanizing the defendants and seeing them as packages to be forgotten as soon as they’ve been dispatched down the conveyor belt may seem self-protective—to hold emotional involvement at bay—but the practice de-humanizes the practitioners themselves.

Before long, “human” has little to do with the work or the workers.

For practitioners, foreboding about surveillance and discipline is an issue. It seems unfair to be held accountable for results that they themselves only peripherally controlled—to choose under overwhelming production pressure the second-best option from an array limited to a dozen bad choices—then be criticized for the outcome.

But regular feedback is a different question, especially where the downstream “second guess” actually constitutes a “good catch.”

There is nothing wrong with “second guessing” where it helps you to “second guess” yourself before you act the next time.

Next time a Kalief Browder comes along, you might “stop the line,” and feel very proud that you knew enough to do so.

We have models to draw on for mobilizing the lessons of mistaken releases and wrongful convictions. For example, either a wrongful conviction or a mistaken release would yield lessons to an all-stakeholders, forward-looking “sentinel events review” derived from the medical tradition.

But we should be working to make the lessons available as regular, routine feedback to the people involved in cases. We should help them to “own” their performances and to reckon with their consequences.

We should allow them to learn and to grow—to feel that they will do better this time than they did the last time.

The memoirs of cops, prosecutors, defenders, and other criminal justice practitioners are filled with warnings about “burn-out”, which is seen as an endemic threat—as a wound inflicted on the protagonists by their scarifying environment.

James Doyle

But when people “burn out” they usually burn out from the inside. Sometimes, they’ve starved themselves.

Developing a system that allows criminal justice workers a chance to learn from the outcomes that their decisions influence that will nourish their growth, not cripple their performance.

James M. Doyle is a Boston defense lawyer and author, and a regular columnist for The Crime Report. He enjoys hearing from readers.