We need to learn from criminal justice mistakes

We need to go up and out, not just down and in

OUR IDEA of safety is person-based.

Whenever something goes tragically wrong in criminal justice our reflex is to go “down and in” to find the malfunctioning human whose misconduct defeated our safe system and victimized a helpless citizen.

We equate “accountability” with “punishment.”

In the context of the police violence that is now a media preoccupation, decades of infuriating impunity for indefensible past shootings combine with a steady drumbeat of news stories announcing yet another death to make the punishment—or the exoneration—of each new trigger-cop our exclusive focus in the aftermath of any officer-involved fatality.

When we look at another set of criminal justice tragedies, wrongful convictions in criminal cases, our attention locks on the prosecutor who hid the evidence or the lab worker who faked the test results.

You can see the gravitational pull of this tendency in the Boston Globe’s recent exploration of the ambivalent role of Massachusetts’s elected district attorneys in deciding whether to charge law enforcement allies. You can see it, too, in the responses to Professor Joanna Schwartz’s authoritative new book, Shielded: How The Police Became Untouchable, in which she anatomizes “qualified immunity” and other barriers faced by plaintiffs in civil suits against police.

No society can tolerate official rule-breakers or the reckless use of public violence: the cop who shoots wildly and the prosecutor who breaks the rules and convicts an innocent man incur debts that have to be paid.

But punishing the last bad actor in line is a terrible place to stop

We need to develop in criminal justice the capacity for learning: for the “forward-looking accountability” that aviation, medicine, and other high impact fields have identified as a road to improved safety.

Safety experts in those fields would tell us that to go “down and in” in search of the broken part is not enough; that we also have to go “up and out” to understand the environment at work.

When you shine a flashlight into a dark room you will see things that you missed before, but you will still miss important things in the spaces where you didn’t aim the beam. We’re living out that truism when it comes to police shootings and to the wrongful convictions that leave the real criminals on the streets.

Targeting individuals for prosecution or civil judgment requires  a simple performance review. As the Globe’s article indicates, it can matter who—that is, which district attorney or attorney general—conducts that review.

But the “account” in accountability is not only a debt to be paid; it is also a story to be told. If prevention is our goal, we need wide-focus event reviews. This is especially true in dozens of “suicide-by-cop” cases—the area on the Venn diagram where the mental health system and the law enforcement system overlap.

There is a growing recognition that these deaths and wrongful convictions can never be completely explained by the choices of a lone individual—that they are system crashes.

On the medical side there are questions of diagnosis, medication, follow-up, and patient and family interactions. On the criminal side, even when we do see monsters like Derek Chauvin, the Minneapolis cop who killed George Floyd, someone—many “someones”—hired, trained, equipped, acculturated, assigned, dispatched, and accompanied the monsters.

These tragedies are not single-cause episodes.  Many small mistakes and violations, no one of them independently sufficient to cause the disaster, combined with each other and with latent system weaknesses and then—but only then—a life was taken. The cop who pulled the trigger and the prosecutor who hid the evidence were involved in a process of “sense-making” in a swirling cloud of conditions and influences that don’t “cause” things in the way that flipping a switch would, but that do bend the probabilities.

That process always bears the fingerprints of many people distant from the scene, who are unaware of their contributions, and are horrified by the outcomes. They would do things differently if they knew.

And, the fact is, sometimes the last cop in line, or the novice assistant district attorney who hides the file has been “set up to fail”—has taken what Diane Vaughan, writing of the space shuttle Challenger launch decision, called “situated action” in a professional culture made by others.

The deterrent effect of prosecuting one cop or prosecutor will influence the next cop or prosecutor who comes along, but it can only be one influence among many. It can’t substitute for the regular practice of working continuously to illuminate and repair the many contributing sources of error that lurk in the complex system that administers criminal justice.

We have to learn how to learn from tragedy in order to build safety into criminal justice.

Massachusetts has a working model of turning tragedy into learning available. After it was discovered that Globe health reporter Betsy Lehman was killed by a massive overdose of chemotherapy drugs at the Dana-Farber Cancer Institute, the state addressed the problem of patient safety by creating the Betsy Lehman Center. That center provides a space for learning from errors, “near misses,” and “good catches.” Its enabling legislation provides a “safe harbor” provision that guarantees that the information it gathers in order to enhance learning and prevention will not be admissible in other proceedings designed to assess blame and punishment.

The urgent question in criminal justice is not “Which prosecutor deals out (or deflects) the punishment?” but “How can we show that—regardless of who is to blame—we do not want this to happen ever again?”

If we replicate the Lehman Center’s capacities in criminal justice, we will be able to do what jurisdictions such has Tucson have done: conduct regular, all-stakeholders, “sentinel event reviews,” that go beyond punishment and involve the community in enhancing its future safety.

We will be able to recognize that every tragedy also presents a treasure house of mistakes that we can  learn from and influences and conditions that we can address—and we be able to honor the victims of tragedy by acting on that recognition.

James Doyle is a Boston defense lawyer and author.