Wrongful Convictions: What Really Matters?

As a debate about the number of wrongful convictions, sparked by Prof. Paul Cassell of Utah, quietly percolates among U.S. scholars, a TCR columnist suggests the argument misses the point entirely: the numbers are less important than making sure they don’t happen.

A bundle of law review reprints arrived in my office recently, sent by Prof. Paul Cassell of the University of Utah’s law school: three articles, a total of 158 pages and 731 footnotes.

 

paul cassel

Prof. Paul Cassell via Wikipedia

 

With his articles, he has launched another sally in the long-running scholarly war over the rate of wrongful convictions in American criminal justice. His new calculation places the rate in a range of 0.016 percent to 0.063 percent.

Cassell’s calculations may or may not be accurate. The question is whether they are meaningful, that is, whether they contribute to preventing the next mistake. Our concern is not with compiling past wrongful convictions (or acquittals) in the aggregate; it is with avoiding them individually.

Editor’s Note: Prof. Cassell is a former Associate Deputy Attorney General, and a former U.S. District Judge in Utah who is considered a leading advocate of victims’ rights.

We can expect his opponents to reply promptly. (One study had estimated that the rate could be as high as 11.6 percent in certain rape cases; others have generally fallen between that number and Cassell’s.)

Cassell’s point seems to be that while wrongful convictions remain important as a matter of principle, they should be considered as “error costs”—the product of the likelihood that an error will occur and the price of the error if it does occur—and they therefore are not an urgent issue among the many other challenges of our justice system.

They are unlikely to the point of freakishness, and the cost of the errors that do occur can often be discounted because of the “moral blameworthiness” of many of the people wrongfully convicted, he appears to be arguing.

(Cassell sees “wrongful acquittals” in a different light: those are both frequent and costly, and our neglect of them is one expensive downside of our neurotic preoccupation with exonerations.)

I won’t join Cassell’s academic colleagues in disputing his arithmetic. I have neither the expertise nor the energy to join that battle.

But the practitioner’s life I’ve led does provide a perspective on the debate that might be worth recording, if only because it is so different from the combatants’ own.

Cassell’s numbers would seem to indicate that a mistaken conviction must be nearly impossible to contrive, and that avoiding a wrongful conviction is really rather an easy thing to do.

That’s not the way it feels to a frontline cop, prosecutor, or defender.

No one with two weeks’ experience in our shambolic urban courts will be very reassured by the claim that there is a 99.98 percent chance that their case is going to turn out OK.

I can’t help thinking of a client of mine named (let’s say) Bob Flinch. Flinch held up a liquor store, shot the owner, and then, on his way out, somehow managed to shoot himself in both feet. Collapsing under a stoop 30 yards down the street, he still had the weapon with him when he was arrested five minutes later and helpfully recounted events for the police.

Flinch was very diligent about staying in touch with me pretrial via telephone from the D.C. jail. (He opened every call with “How does it look?”) I did what I could, but Flinch was convicted.

Any system, operated by anyone, would convict Mr. Flinch. It is a little disconcerting to realize that when Cassell determines what fraction of prosecutions result in wrongful convictions, Mr. Flinch’s case finds its way into his denominator.

Cassell’s numerator—the number of officially recognized exonerations—makes fair-enough use of the numbers, but it uses the numbers we have rather than the numbers we need.

The fraction most of us are interested in when we assess the system’s functioning is the number of mistaken convictions (some revealed and many undetected) over the number of cases that might (unlike Flinch’s) have been subject to some doubt.

The academic antagonists are oriented to the ancient ideological tug-of-war between adherents of Herbert Packer’s Crime Control and Due Process Models: a zero sum contest between the suspect and the state.  One camp wants more official control of the population; the other wants more control of the officials. Both seek control as their goal, or as at least the indispensable precondition for other goals.

Frontline lifers (at least lately) have become less interested in control and more interested in the collaborative co-production of Safety. They have been forced to recognize that control is often illusory, always evanescent.

And so, practitioners value the lessons taught by the study of safety in aviation, medicine, and other high risk industries.

Frontline people will tend to see wrongful convictions not as single cause (say, eyewitness error events), but as complex “organizational accidents” in which many small errors and omissions, none of them independently sufficient to cause the disaster, combine with each other and with latent system weaknesses.

The practitioners know that many things have to go wrong before an innocent man is convicted, and they also know that many things would have to go right (e.g., he finds a lawyer, has the right sort of evidence, etc.) before a wrongly convicted man is exonerated.

Safety specialists teach us that there are many more errors than there are completed wrongful convictions, and many more wrongful convictions than there are exonerations.

A wrongful conviction isn’t “caused” by a Brady violation. The police had to get the wrong guy. The DA’s office had to hire the wrong assistant, goad him with the wrong incentives, and fail to train and supervise him. The defenders had to fail to develop the buried exculpatory material on their own.

A wrongful acquittal isn’t “caused” by the exclusionary rule. First, training on and observance of Fourth Amendment search and seizure requirements have to fall short, and the development of alternative sources of evidence has to be frustrated for the exclusionary rule to free a guilty man.

As John Jay College of Criminal Justice Professor Jon Shane has shown, even an apparently simple violation of constitutional procedure is a complex organizational accident.

Besides, one of the most basic maxims of the safety experts is that the absence of accidents is not proof of safety. The fact that we launched Space Shuttles with the same O-ring design successfully many times before the Challenger mission didn’t mean that it was safe to launch Challenger.

As Charles Perrow, one of the pioneers of the modern safety movement, put it, Murphy’s Law is wrong: everything that could go wrong usually doesn’t, and then we draw the mistaken conclusion that things are safe.

Counting outcomes and moving the needle towards “more” or “fewer” is absorbing for the professors, but it is not terrifically interesting for frontline actors, who are concerned with their own workmanship in the cases they confront, not with broad ideological “fixes.”

Whatever the fix, the cases will keep coming.

Criminal Justice and Human Error

Practitioners are bombarded with daily reminders that criminal justice, like all human endeavors, is subject to error.

The rate of fatal errors in medicine may be as high as the Academy of Medicine’s estimate of 44,000 to 98,000 annually, or it may be more accurately estimated at a lower rate, but no one argues against working at continuing quality improvement in patient safety.

What Cassell’s latest piece will show practitioners (if they happen to read it) is that neither Cassell and his allies, nor their opponents, will ever succeed in landing the knock-out punch each side seems to crave. The statistical raw materials are too fluid to provide the foundation for a clinching proof.

But if the scholarly antagonists can reconcile themselves to that conclusion there are learning opportunities for them here.

For example, although deriving an exact authoritative rate of wrongful convictions may be impossible, we do know something about their distribution—especially their racial distribution—and that may repay further study.

Prof. Jon Gould and his colleagues have shown that careful social science inquiry can teach us about the conditions that lead to wrongful convictions by contrasting those conditions with others influencing “near miss” outcomes in which mistakes are  intercepted before the conviction occurs.

Significantly, Gould and his co-authors directly enlisted frontline practitioners to collaborate in developing “strength-of-case” measures.

Further openings for scholarly (and law school clinical program) collaboration with the frontline actors are provided by efforts such as the National Institute of Justice / Bureau of Justice Assistance exploration of all-stakeholders, non-blaming, forward-looking “Sentinel Event Learning Reviews” that probe the sources of wrongful convictions (and, for that matter, wrongful acquittals) with avoiding repetition as their focus.

This is a team effort worth undertaking. After criminal justice mistakes, the system has to hold itself accountable for learning everything it can from the event.

The Harms of Wrongful Convictions

Wrongful convictions are “iatrogenic injuries.”  Like a scar after surgery, they are inflicted by useful treatment. The harms they produce radiate outward in concentric circles: to the exonerated, the original victims, and to the future victims whom the actual perpetrator will find while the wrongfully convicted man serves the real criminal’s time.

Those harms should be weighed before we act as well as deplored later on.

Cassell does list many of these harms. But there is one harm that recedes into the background in his accounting; one for which the difference between 1 percent and 5 percent may not ultimately be very important.

james doyle

James Doyle

John Adams described that harm, arguing in defense of the British officers in the Boston Massacre trial.

Guilt and crimes are so frequent in the world, that all of them cannot be punished . . .But when innocence itself is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself is no security. And if such a sentiment as this should take place in the mind of the subject there would be an end to all security what so ever.

 James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.

from https://thecrimereport.org

Justice Reform Under Trump: Some Good News?

An experimental project aimed at helping local jurisdictions examine–and correct–mistakes in the justice system will soon be expanded to up to 25 cities and counties. The expansion of the Sentinel Events program amounts to an endorsement by the Justice Department of a major Obama-era reform initiative.

For those wondering whether any meaningful justice reforms are likely under the Trump administration, here’s one encouraging—but little noticed—development.

Last week, the National Institute of Justice (NIJ), the research arm of the Justice Department, announced it was seeking proposals to provide “technical assistance” to scale up its six-year-old pilot Sentinel Events Initiative (SEI) to as many as 25 cities or counties around the country.

The dry language of the announcement belies its significance.

The project, according to the NIJ, is aimed at the “development, implementation and routinization of non-blaming, forward-looking, multi-stakeholder reviews” that are intended to “identify systemic weaknesses” in the administration of justice.

Translation: the NIJ wants to help justice systems at the local level explore ways to examine the mistakes that often trigger outraged headlines—a wrongful conviction, a police shooting, a crime committed by an individual under justice supervision—with the objective of identifying (and correcting) the flaws or missteps that produced those tragic events.

Such mistakes are usually not one-off errors, but indicators (“sentinel events”) of deeper and more entrenched problems or patterns of behavior.

Each of the sites selected for the expanded program will identify an event or set of events for examination, and conduct an exhaustive review of what led to it. Similar reviews already occur in many forms around the country, whether through Conviction Integrity Units established by prosecutors or police civilian complaint boards.

The difference is that all the institutions or agencies which have played a part in the individual event as well as, in some cases, representatives of communities affected by the event, will conduct this exhausting and often wrenching self-examination together.

In a system like ours, which is built in silos—jails, courts, cops, prosecutors, public defenders, all pursuing their separate ends—that’s a transformative idea.

The Crime Report has been covering the Sentinel Events process since it was launched in 2011 and then expanded in 2014 as a pilot project in three cities—Baltimore, Philadelphia and Milwaukee—along with a short booklet called “Mending Justice”, a collection of essays by leading criminologists and practitioners under the imprimatur of then-Attorney General Eric Holder.

The premise is simple. When awful things happen, it’s easy—and tempting—to blame an individual (the cop who fired the gun, the over-eager prosecutor who failed to introduce exculpatory evidence). But such finger-pointing is almost always guaranteed to ensure the same mistake will occur again, in one way or the other.

That’s why the worlds of aviation and medicine, for instance, have long since introduced processes to discover the root causes of tragic mistakes like an airplane crash or a bungled surgery. By getting everyone who had a stake in the decision-making into the same room, the smaller errors or oversights that led to a tragedy can be identified and, possibly, corrected.

Applying this to U.S. justice isn’t easy. Our “system” is a really a set of institutions in towns and cities across America that cooperate in widely diverse political and socio-economic environments. And many of the key players are either reluctant or too time-challenged to engage in the kind of self-examination that might result in meaningful changes.

“As justice system professionals, we are deceiving ourselves if we think our decisions and actions are infallible,” Holder observed in his forward to “Mending Justice.”

The pilot “Beta” projects in the three cities have demonstrated, however, that given a chance, prosecutors, public defenders, sheriffs, police chiefs and any of the other players at local levels, are in fact open to sitting down together and figuring out what went wrong.

The initial responses were enough to persuade the powers-that-be that the idea is worth taking to the next stage by expanding it to more cities.

Last week’s announcement, appealing for applicants for the $1.6 million in funding made available to support technical direction, was not a foregone conclusion, given the impression created by our new leaders that any ideas produced under the former administration were, by definition, scrap-able.

Eric Holder supported this? Forget about it.

But Washington’s green light for this makes sense when you think about it. “Sentinel Event Reviews” are targeted at the critical actors in our federal system, where most “justice” gets done: states, cities, jails, police departments. That happens to conform to the prevailing ideology of empowering local authorities, and lifting the heavy hand of Washington: No federal consent reviews here.

And it, like many of the most forwarding looking justice reform ideas currently under discussion around the country, not only builds on bipartisanship; it requires it.

A good illustration of that came last week, when a small group of people came together at NIJ headquarters in Washington to discuss the Sentinel Review process so far. They included police chiefs, mayors, district attorneys, community advocates, police union officials, public defenders and even crime victims. They were Republicans and Democrats, conservatives and progressives; and they came from every corner of the country.

The one thing they had in common was frustration: For all their good intentions, the systems they were operating in or managed as professionals continued to produce bad results. A loss of community confidence and public trust and, just as significantly, a reduction in public safety (or perceptions of it) was inescapable.

The meeting was held off the record to allow the participants to speak freely—and they did. At times they employed the same rhetoric we’re more accustomed to hearing from angry protesters.

“So many times I’ve seen prosecutors (ignore) their moral compass,” said one, who explained the sheer burden of caseloads led not only prosecutors but judges, public defenders and others to overlook details in the rush to judgment that has driven mass incarceration levels in the U.S.

As part of the meeting, the attendees participated in some model “Sentinel Event” reviews to become comfortable with the practice.

And some of the critical issues at the heart of the tragedies that have made ugly headlines became apparent:

  • The drawbacks of the current justice “culture” in which decisions, and the responsibility for making them, are kicked down the line;
  • The ease with which small inaccuracies in record-keeping and failures in communication can produce fatal mistakes.

The key to the process is that there is no single template or model for how to conduct these examinations. It’s up to each jurisdiction to decide who gets to sit in the room, and how to apply the lessons learned.

A lot of issues will need to be worked out. How transparent should the process be? What role does the media play? Will Sentinel Events reviews allow the “bad apples” in the system to escape blame for what they did? Will they co-opt community activists who are determined to hold accountable the individuals or institutions responsible for errors?

How will they affect disciplinary measures or the rights of those seeking damages for misconduct in lawsuits?

The jury is still out. But supporters of the concept assure those worried about taking a “soft” approach to official misconduct that a Sentinel Event Review is not intended to remove individual accountability.

What’s clear at least from last week’s announcement is that the decision to scale up the Sentinel Events concept provides evidence of a willingness to think differently about our justice system.

That’s refreshing.

And worth watching.

Stephen Handelman is executive editor of The Crime Report. He welcomes readers’ comments.

from https://thecrimereport.org

‘Suicide by Cop’: The Questions That Don’t Get Asked

When a mentally ill individual dies in a police shooting, commentators focus on the officer who pulled the trigger. It also makes sense to ask why no one detected the individual’s problems in the first place.

Photo by Alachua County visa Flkickr

Photo by Alachua County via Flickr

According to the police shootings database compiled by The Washington Post, 25 percent of the individuals fatally shot by law enforcement officers in 2016 were mentally ill.

Similarly, the Boston Globe’s extensive “Spotlight” special report into the mental health care system in Massachusetts found that nearly half of the people shot by police in the last 11 years suffered from mental illness.

In a narrative that has become all-too-familiar, many of these deaths were “suicide by cop” events.

Society seems to expect law enforcement to control every situation that arises. So it’s only natural that issues of police performance, technique and training become the primary focus of criticism and commentary following each tragic death of a mentally ill individual.

Recognizing this, law enforcement has worked to  find some solutions.

For instance, the International Association of Chiefs of Police (IACP) has prepared a comprehensive guide to best practices for dealing with the mentally ill.  Among other steps, the IACP advocates the development of specialized “crisis intervention” teams to respond to these highly pressurized calls for service.

Just last  month, a broad alliance of law enforcement groups, including the IACP and the National Association of Police Organizations, collaborated on a set of improved general  “de-escalation” techniques and training models  that can be particularly helpful when an officer confronts a person in an acute state of mental distress.

While these efforts are constructive, the narrow emphasis on law enforcement’s interactions with the mentally ill distorts  the reality that the police are a part of a much larger system.  As a result, the officers involved in these tragic encounters often unfairly monopolize public scrutiny.

Much attention is paid to what law enforcement did, but little or none to the many things that are well beyond law enforcement influence.

More holistic inquiries would likely produce a better understanding of the causes and effects of these deadly incidents.  Such assessments could provide a more  accurate sense of accountability than current public discourse.

They would reveal what those who have studied the mental health system already know:  This isn’t simply an issue of  protecting mentally ill protagonists from trigger-happy cops.

The root causes of every fatal shooting can’t really be explained by identifying some “human error” on the part of a cop who used the wrong de-escalation technique.  De-escalation techniques are important, but they aren’t magical.

Jim Palmer

Jim Palmer

Like the nurse who administers a fatal overdose of medication to a patient, or the air traffic controller who provides an incorrect instruction to a pilot, the front-line officer accused of a fatal “human error” has often, as patient safety expert Dr. Lucien Leape puts it, “been set up to fail.”

The challenge here is not only protecting the mentally ill; it is providing for the safety (or, if you prefer “wellness”) for radiating circles of vulnerable individuals, families and communities.

One circle comprises the officers themselves.  About 90 percent of the people shot by police in the Boston Globe study were armed.  Besides, as David Klingle and others have pointed out, cops who are forced to shoot and kill often suffer deep trauma themselves.

The core question that we should be asking after a fatal confrontation is “How did these two people find themselves in this situation in the first place?” It’s an approach that has worked well in some other high-risk fields, and it would lend itself to assessments of tragic law enforcement encounters.

In aviation and medicine, for example, tragedies are seen as “organizational accidents”—complicated events in which many small mistakes (none of them sufficient to cause the disaster independently) have combined with each other and with latent system weaknesses before the horrific outcomes occurred.

This perspective is based upon the reality that finding one mistake by one “bad apple” usually does little very to provide for systemic improvements.

When it comes to accountability for a bad outcome, an organizational appraisal of this kind reveals that responsibility is often  shared by many: usually by those who  may have made a mistake, or  by those who knew about a shortcoming elsewhere in the system, or by those who failed to anticipate the mistake of another.

Such a broad perspective can provide a level of accountability that is not only more comprehensive, but forward-looking as well.

Hospitals mobilize this principle by conducting “Sentinel Event” reviews that aim to identify the multiple slips, missed opportunities and absent capabilities that combined to cause a bad outcome, and which could combine again to set another front-line actor up to fail.

In fact, if a “suicide-by-cop” occurred within 24 hours of a patient’s release from a hospital, the national accrediting body for hospitals, the Joint Commission, requires the facility to conduct such a sentinel event analysis.

The National Institute of Justice has been leading an exploration of the potential for mobilizing a regular practice of sentinel event reviews in criminal justice aimed at a non-blaming effort to more fully understand the cascading causes of errors and near misses.

The President’s Task Force on 21st Century Policing picked up this theme,  and recommended that sentinel event reviews be implemented after critical policing incidents.

Perhaps the most significant benefit to applying a broader lens to fatal police shootings is that it would make clear what should be obvious but is usually ignored. When it comes to the safe handling of acutely mentally ill citizens, the hospitals, the general health care structures, and the cop in the dark hallway who had to pull the trigger are all part of the same system.

Since many of the dead are court-involved, sentinel event reviews of fatalities and near-fatalities involving the mentally ill would ask an  array of players from within the legal  system to develop an account of their actions and insights.

James Doyle

James Doyle

The prosecutors who brought charges instead of seeking commitment, for example, could consider what in their environment made that seem like the best choice.  The defender who delivered the catastrophic bad news and who probably had more private time with the victim than any other practitioner, might weigh how better to detect suicidal ideation and what to do when it is identified.

(Ethical requirements for confidentiality of client communications can make this a difficult problem.)

Corrections staff and medical providers could ask whether continuity in treatment or medication was provided before their detainee was released, or why it wasn’t.

This kind of “root cause analysis” was applied in a recent NIJ-funded study by the Vera Institute, and its utility in a broader review of mental health fatalities would likely be significant.

Most importantly, a sentinel event review process could incorporate all of the criminal justice actors who, although they did their best with the facts and tools available to them at the time, could come together and explore whether certain changes are needed to avoid participating in the same kind of negative outcome in the future.

Another important advantage of this approach is that it can be focused  locally. That ensures  the process is informed by an intimate knowledge of local considerations and constraints, and eliminates practitioners’  reasonable concerns that some group of pundits from outside a given community will render a  judgment without knowing  the particular environment in which they operate.

Not every town can fund a Crisis Intervention capability; de-escalation techniques don’t answer every situation.

In fact, no lock-step national mandate of tactics and techniques can provide safety in every situation and jurisdiction.

This is a system problem, not a police problem.

It is not realistic to suggest that any single change by one actor can prevent a negative outcome while we continue to sidestep  the fact that there is a larger system of actors, all of whom may have contributed to the outcome, but who also deserve the right and ability to collaborate in systemic corrections.

On a national scale, we have neglected to do this. As a consequence, we are failing to focus on safety in the criminal justice system.

Making the sentinel event approach part of our efforts to strengthen police accountability—in particular integrating it into an analysis of system-wide safety weaknesses— can make a difference the next time a  a terrified patrol officer with a Taser and a gun confronts a  psychotic with a sword.

Until now, we have been looking at such confrontations—and their often tragic consequences—with blinders.  That’s a disservice to the officers who  police our communities and to the public, which  reasonably expects the systems established for public safety to  learn from mistakes.

Jim Palmer is the executive director of the Wisconsin Professional Police Association, which represents nearly 10,000 members from almost 300 agencies. James Doyle is a Boston defense lawyer and author, and a  frequent contributor to The Crime Report. They welcome readers’  comments.

 

 

 

 

 

 

 

 

 

 

 

 

 

from http://thecrimereport.org