Why Justice Innovators Resemble Jazz Musicians

Cops, EMT workers and court officials are no longer waiting to be told how to fix system flaws. In cities across the country, pioneering efforts at collaboration across once-solid silos resemble the skillful improvisations of a jazz score, writes a Boston defense attorney.

Turn on your local nightly news. Pick up the Metro section of your local paper. Several times each week, you’ll see cops and EMTs standing over a body.

Sometimes it will be a shooting victim; sometimes it will be a drug overdose fatality. Sometimes it will be a mental patient who, in a psychotic state, was driven to “suicide-by-cop.”

Cops and EMTs are tired of meeting that way.

Emergency room staffs are tired of greeting the ambulances that bring in the “likely to die” cases whom their frantic medical efforts can’t save.

Brandon del Pozo

Burlington Vt Police Chief Brandon del Pozo (far right) makes a point during a recent John Jay College conference. Photo by The Crime Report.

A pair of recent meetings indicates that the frontline practitioners who confront these grisly scenes are making themselves felt in their professional organizations—that they are taking things into their own hands.

The program at the recent Orlando, Fl., meeting of the International Association of Chiefs of Police (IACP), for example, bulged with panels and presentations reflecting the perception of Burlington, Vermont, police chief Brandon del Pozo that “the job here is to keep people alive.”

IACP provides a collaborative platform that serves not just NYPD-size behemoths but also smaller departments from across a diverse range of jurisdictions: urban, suburban, and rural.

Representatives from those departments, often joined by the mental health providers, addiction specialists and social science researchers with whom they had worked on their home ground, presented accounts of their successes, their failures, and the challenges they still faced.

Later in the same month, the Fourth Annual Conference on Law Enforcement and Public Health (LEPH) was held in Toronto. International panels filled several days with lessons learned by police when they reached out to their health care counterparts and took a public health approach to opioid deaths, violence reduction, mental health interventions, and homelessness.

Again and again at the two conferences, pioneering police, driven by harsh experience to try something new, described glimmers of hope that their collaborative initiatives had revealed.

Something is happening here.

What you can see beneath the surface of these gatherings is the classical pattern of the diffusion of innovation described by Everett Rogers.

Innovators are attracting early adopters, and news of the relative advantages of their innovations is spreading in peer-to-peer conversations through peer networks.

There are elements of these particular diffusions that might herald a paradigm shift in criminal justice: a shift from a preoccupation with control (of crime on the one hand, of law enforcement intrusions on the other) to a focus on safety.

Or, maybe I mean Safety—everyone’s Safety: the community’s, the individual’s, and the cop’s too.

In this vision Safety means being safe from crime and criminals, but also being safe from iatrogenic (“from the treatment”) harms caused by excessive force, oppressive patrol practices, and massive levels of disruptive detention and incarceration.

Bottom-Up Innovation

The first thing to notice about the momentum behind this movement is that it is being generated from the bottom up: its origin lies in the traumatic lived experience of the people on the frontlines, not in the policy journals.

But it is also important to recognize the extent to which this frontline impulse is reinforced by the data.

When the careful Camden, N.J., effort to integrate health care and criminal justice numbers finds that 67 per cent of Camden’s arrestees also cycle through its hospitals, it makes it clear that the IACP’s and LEPH’s presenters are not reacting to idiosyncratic events; they are simply confronting reality.

The law enforcement and public health collaborations on display at IACP and LEPH have fostered an impressive array of local re-arrangements: new “best practices” and policies that are showing concrete results on the ground. These are unalloyed “Good Things.”

Still, if we apply the new Safety lens to these developments and to the environment that spawned them, we might be able to push further—and faster— and for a sustained period.

The Orlando IACP and Toronto LEPH gatherings both broke down the walls between neighboring territories—between professional silos that are often in contact, but within which the practitioners were used to going their own separate ways. Their new linkages will help all of the practitioners to be more effective in working together towards their common goals.

Safety experts argue that the horrific disasters and corrosive day-to-day harms these cops and healthcare workers are trying to avoid are never really single-cause events, produced by a lone sloppy practitioner or one defective practice or component; they are system errors.

Harms happen when small choices (none of which is enough to cause the outcome independently) combine with each other and with latent system weaknesses and conditions.

In other words, Safety writers would challenge us to ask ourselves whether “Silo + Silo = System.”

They would say that the answer depends on whether we believe the criminal justice system we are entangled in is a “complicated” system or a “complex” system.

As Sidney Dekker explains this distinction, a jet airplane is “complicated”—an intricate mechanical system where the failure of a part can be seen as a “cause” because it has an inevitable and predictable result.

Fix the part, and the plane is fixed. If criminal justice is just “complicated,” and the part is in your silo, then you can fix the problem yourself.

But jet air transit in operation is “complex”: when you add the humans there are no longer inevitable Newtonian causes and effects; there are “influences.” They don’t dictate outcomes, but they do affect the probabilities.

A bad outcome doesn’t arrive via a simple, one-way, linear sequence; it emerges from a combination of influences: from workers trying to make sense of situations derived from the small decisions, acts and omissions of other workers, and from conditions dictated by budget-makers, legislators and policy-makers so far over the horizon that they often become invisible.

There are things in criminal justice that can be treated as “complicated,” and they can be remedied with a quick “best practice” fix. (“Don’t spill your coffee on the crime scene”) or a checklist (“remember to ask about allergies”).

Complex Encounters

But more often criminal justice encounters are complex. Neither the cops nor the doctors are “upstream” or “downstream” in the life course of the “frequent flyers” among the homeless, the battered, the addicted, and the mentally ill they encounter. The police and the medical staffs are always simultaneously upstream and downstream of each other.

And, since most of the civilians whom medicine and law enforcement encounter are court-involved, the cops and doctors are joined in their web of mutually reciprocal influences by prosecutors, defenders, courts, sheriffs, corrections officers, and probation and parole workers—even by families and communities.

A mentally ill misdemeanor defendant who de-compensated and had to be violently subdued (even killed) by the cops has been in contact with the hospital, the defenders, the clinic, the jail, and the re-entry program. Treatment opportunities were missed, or misjudged, or treatment was interrupted.

All of the frontline operators involved had Safety as their ultimate goal—although they may approach it from different orientations and with different tools, or express it in different terms—and all of them are simultaneously buffeted by an encompassing environment constructed by others.

As Safety commentator Ivan Pupulidy points out, the daily lives of these players aren’t like those of orchestral musicians trying to follow a score.

See: Ivan Pupulidy, “Making Sense out of Justice Tragedies

At 2:00 a.m. on the street, or in the emergency room, or late in the afternoon, when managing the 14th case on their 60-case misdemeanor arraignment lists, the practitioners are more like jazz musicians, improvising in a world of swirling inputs. Everyone’s work is affecting everyone else’s work.

Shifting Toward Safety

No single operator can produce Safety any more than a single molecule of H2O can produce wetness. The whole culture has to shift toward Safety.

The recognition that frontline life is dynamic and adaptive, not scripted, is at the heart of projects like the National Institute of Justice/Bureau of Justice Assistance “Sentinel Event Initiative.”  The goal of the Sentinel Event demonstration projects (for which sites are currently being recruited) is to explore whether jurisdictions can develop the capacity for an all-stakeholders approach to these problems that improves on a “silo + silo” orientation by bringing everyone to the table to review not the performances of individuals but the system-based generation of events.

In the aftermath of tragedies there may be particular individuals who have to be held accountable for their performances, but everyone (and every organization) has to be held accountable for learning the all lessons of the entire complex event teaches and avoiding repetition.

There are tantalizing signs that the people on the frontlines are ready for this—in fact, are thirsty for it.

If you review, say, a random month of The Crime Report, you will see news of an individual criminal justice practice community that has re-oriented itself towards preventing avoidable harms every day.

James Doyle

To take one example, you will see organizations of prosecutors, of defenders, and of police each taking steps to cut the subset of unnecessary pretrial detentions that produce no impact on crime reduction and community safety.

The crucial question in our immediate future is whether they can all be convinced to pursue their goal together, not one silo—or even two silos—at a time.

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

How the Justice System Can Learn From ‘Frequent Flyers’

For some Americans, health care and criminal justice are not two separate systems, but components of one big system that too often fails them. Frustrated cops call them “frequent fliers” because they regularly cycle between jail and hospital, so why do we  think we can fix one without the other?  

If a patient commits suicide within 72 hours of discharge, the Joint Commission (the accrediting body for hospitals) requires that a hospital conduct a “sentinel event” review.

That review will include a root cause analysis designed to uncover any mistakes or latent system weaknesses that contributed to the death.  It tries to learn whatever can be learned, and to report on steps aimed at preventing repetition.

But suppose the suicide is a “suicide-by-cop”:  A distraught former patient succeeds in forcing the police to shoot him in order to protect their colleagues or a hostage or a bystander.

Then, the familiar mechanisms of the criminal justice system will automatically activate too.

There will be a homicide investigation and a coroner’s report.

The performances of the officers who pulled their triggers will be examined by prosecutors and department officials.  Did the cops have another choice?   Did they act in self-defense? Was the shooting “within policy”?  Is prosecution called for?  Discipline?

Currently, the National Institute of Justice (NIJ) and the Bureau of Justice Assistance (BJA) are providing support (through a technical assistance grant to the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School) for state and local criminal justice systems that want to go beyond the typical punishment-oriented reviews of the practitioners on the sharp end of the system, and to conduct “sentinel event” reviews of their own derived from the medical model when something goes wrong.  Jurisdictions are being recruited.

This will be a new thing in criminal justice.

These inquiries are focused not only on the choices of the individual cops, or forensic scientists, or lawyers, implicated in a surprising outcome, but rather on the whole constellation of system factors.

Like the hospital reviews, they ask not only “What happened?” but also “Why did it happen?” The goal is safety, and not just the safety of suicidal people, but also of the police who are forced to confront them—officers who, even if they survive their encounters, are traumatized by the experience.

So, in a criminal justice “sentinel event” review of a suicide-by-cop the role of training and supervision could be examined.   Was the cop trained in de-escalation techniques and equipped with non-lethal options?  Did the department have a Crisis Intervention capacity?

Had the 911 dispatcher gathered⸺and then conveyed⸺the useful information?  To the right people?  If not, why not?  How was this fatal situation created?  How can it be avoided?

These are system-oriented  event reviews, not personnel-focused  performance reviews; they look forward,  and they  aim at prevention, not at blame.

Are two reviews (or even three, if your city or state has opted into the NIJ/BJA  Sentinel Event effort) better than one?

An innovative recent study in Camden, N.J., (reported in The Crime Report by two of its leaders) casts doubt on that proposition.

In fact, the Camden findings (in my opinion, anyway) argue that we don’t need multiple parallel studies, but rather unified, collaborative learning reviews that enlist not only medical and criminal justice stakeholders working together, but members of the communities and the sub-groups they serve.

We need these learning reviews not only for the spectacular officer-involved fatalities, but for the “high frequency/low impact” missteps characteristic of daily criminal justice life in what a recent book called “Misdemeanorland.”

See: The Crime Report’s Q&A with Issa Kohler-Hausmann, author of “Misdemeanorland.”

The Camden study, conducted by the Camden Coalition of Healthcare Providers with support from the Laura and Jay Arnold Foundation, broke down the walls of multiple data silos in healthcare and criminal justice in Camden and used the numbers to illuminate the lives of a specific group of individuals entangled with both sets of practitioners.

To pull just one telling statistic from among the study’s many: 67 percent of the people who cycled through Camden’s Emergency Departments over the course of the study also cycled through its criminal justice system.

What I think the members of this group—“super-utilizers” to the public health practitioners, “frequent flyers” to the cops—could tell us is that from their perspective, health care and criminal justice are not two systems.  For frequent fliers, health care and criminal justice constitute one big system that dominates their daily efforts to survive.

It is pointless to think of a jail or an emergency room as “upstream” or “downstream.”  Each is simultaneously upstream and downstream of the other.

People who think about safety in other contexts draw a contrast between a complicated system and a complex system.  A jet airplane is a very complicated machine, but it can still be thought of in linear, sequential terms:  if x component fails, then y will happen.  So, find and fix the component.

But jet airliners in operation “become complex because they are opened up to influences that lie way beyond engineering specifications and reliability predictions.”   This is true of hospitals, police departments, prosecutors’ offices, courts, and correctional institutions too.

It looks even more true once you realize that these complex entities are themselves only elements of a more complex encompassing systems environment.

Decisions made in one part of this swirl are seldom automatic “causes” of effects in in other parts; usually they are “influences” that affect the probabilities, not switches that turn things on or off.

Look at the problem of how to launch “Abe,” one of the patient/defendants described by the Camden studies leaders, into a safe, healthy, law-abiding life (that drains fewer public resources) and you can see that you are not dealing with a simple mechanical challenge.

Over five years Abe was treated in emergency departments two dozen times, arrested more than fifteen times:  “A seemingly unbreakable cycle of hospital stays and arrests and incarceration, punctuated by periods of housing instability and homelessness, all of which appear to be driven largely by untreated substance abuse and lack of social supports.”

Some framework for collecting and disseminating cross-sector data will be an important step in breaking the cycle.  The authors of the Camden study are certainly right when they say that their work shows that there is “enormous value in fostering collaborative data sharing among agencies.”

But we should probably remember that data-measuring outputs casts only a pretty oblique light on processes. These processes, involving “lived realities of the people in the criminal justice system,” have to include the “lived realities” of the frontline emergency room nurse, patrol officer, sheriff, prosecutor, and judge who are making the decisions that keep Abe on his treadmill.

It would be surprising if these frontline practitioners greeted the Camden study’s findings with astonished shouts of “Eureka!”  The overlap of homelessness, medical issues, and criminal contacts is something they confront all day, every day.

(Innovative efforts such as the San Francisco Wraparound Project violence prevention initiative at Chan Zuckerberg San Francisco General Hospital have recognized the criminal/hospital nexus as a vital point of entry for community safety.)

Data-derived policies, even very good ones, won’t dispense with the people who have to execute them.  The reality is that the work the frontline workers actually do will seldom be identical to the work that policy wonks are able to describe in advance.

There is, as the Camden study notes, a tremendous variety in frequent fliers’ experiences.  That variety requires innovation, improvisation, choices between conflicting rules, and sometimes even rule-breaking—in short, workmanship—from practitioners.

With all of these actors involved, deciding how to rescue “Abe” is a complex socio-technical riddle, not a straightforward mechanical repair like mending a clockwork.

At 4:30 on some Friday afternoon, with the docket list still bulging, it made sense to each member of the “courtroom workgroup” of prosecutor, defender, and judge to offer Abe a plea to a greatly reduced charge and a sentence of “time served.”

It made sense to Abe to accept the offer and walk out the door.

That this was a mistake becomes clear only later (and in a different place, to different people) when it turns out that the record of conviction meant Abe is booted out of the family home in public housing that provides social support and allowed for medical continuity, or when it disqualifies him for a job or a program.

One of the things we can learn from looking at the general safety literature is that all of the decisions that we now deplore in hindsight as choices that kept Abe cycling were “locally rational” when they were made.

They may not have been heroic, prescient, or admirable, but they made sense to frontline people who were trying to get through their days.  Going “down and in” to focus tightly on one practitioner’s decision won’t be enough; we also have to go “up and out” to see why that decision was made. Leave the same inducements in place and the next practitioner may do the same thing.

When Diane Vaughan looked at the disastrous space shuttle Challenger launch decision she rejected the conventional view of amoral NASA administrators overriding safety concerns to meet the budgetary and political pressures driving the launch schedule.

Vaughan found that the decision was “a mistake embedded in the banality of organizational life.”  It had roots in the “normalization of deviance,” the accumulated drift, by small workarounds, informal work rules, and locally rational adaptations into accepting dangerous risks.

It was supported by a kind of structural secrecy:  that is, by “the way that patterns of information, organizational structure, processes, and transactions, and the structure of regulatory relations systematically undermines the attempt to know.”

Some part of this pattern as it applies to a frequent flyer is made up of formal confidentiality regulations:  the nurse is bound by HIPAA rules, the public defender by attorney-client privilege.  But more derives from mutual unfamiliarity: from a lack of insight into what counterparts in medicine (or public safety) are trying to do, why they are trying to do it, and how they are constrained by their environments.

Look at an avoidable suicide-by-cop or a re-entry failure or medical crisis dooming a frequent flyer like Abe to another downward loop on his spiral and you’re likely to see something of the kind.

Collecting and marshaling the data is crucial, but something like Vaughan’s ethnographic approach—complementing the data with the narratives of individual events and the “thick data” those narratives can provide—is crucial too, if we want to renovate a system that is currently keeping secrets from itself.

There is no reason to choose between, say, the Arnold Foundation’s data analysis and Jennifer Gonnerman’s rich narratives of Kalief Browder’s story.  They inform each other.

James Doyle

James Doyle

But to do this we need everyone’s perspective and on a constantly shifting variety of events.  Narratives confined in silos are no better than data confined in silos.

If everyone is doing “sentinel event” reviews anyway, why not do some together?

Editor’s Note: For another perspective on the Learning Review Process, see Ivan Pupulidy in The Crime Report, “Making Sense of Justice Tragedies.”

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

Making Sense Out of Justice Tragedies

Can a process developed to analyze serious mishaps in the US Forest Service be applied to justice? Its creator believes that the “Learning Review,” now used in medicine and other fields to learn from accidents, incidents and normal work, without trying to affix blame, is ideally suited to criminal justice as well.

After the Parkland, Fl., school shooting last Feb. 14, the nation’s anger focused for a while on then-school resource officer Scot Peterson, who appeared to freeze outside the school while the gunman was firing.

“It’s easy…for people to go, ‘Oh, he should have known that that person was up there,’” Peterson, who was suspended and later resigned, said in a TV interview six months later.

Peterson explained that he stationed himself outside the building because that was where he believed the threat was located when he heard shooting.

Could we learn from asking different questions, designed to understand why it made sense for Scot to do what he did? Did our questions and conclusions lead us to deeper understanding and prevention, or did we add Scot to the list of those damaged by the Parkland shooter?

For a moment, let’s put away our natural bias to find people at fault. Let’s accept Scot Peterson’s account as accurate.

When we engage in a response to an adverse outcome event, we naturally create assumptions about the situation and, more to the point, people’s reaction to the situation. Pause for a moment and think about all the things that were not known by Scot. He did not know if there was a shooter – his first reaction was the thought that someone was lighting firecrackers.

He only heard a few shots. Were they the first shots or the last? He did not know where the shots were coming from; some reports suggested the football field.

Radio communications were not supporting the information-gathering and sense-making that Scot was attempting to conduct.

The later video showed four-plus minutes of nothing happening. If there was a school shooter, shouldn’t there be more activity? Just in case, Scot clears the area and begins shutting down the school. His dispatch does not have any information because incoming 911 calls are being routed elsewhere.

There is nothing to confirm an active shooter.

Five-six minutes. This can seem like a long time to someone watching the video. There seems like so much time to react, to do something. But emergent situations are not like a video. Your mind races as you try to make sense of a flood of often-conflicting information.

When I flew aircraft, I was often accused of calm multi-tasking. From my experience five minutes can seem like an eternity, or it can go by in what seems like seconds. Granted, some people are better at this than others . But we should ask, “How much of success and failure can be attributed to luck?”

Philip Zimbardo, a world-renowned psychologist, who is best known for the Stanford Prison Experiment, has studied heroism and action in the face of adversity. He has asked what makes a villain and what makes a hero.

Zimbardo said in his 2011 TED Talk:

“Some people argue humans are born good or born bad; I think that’s nonsense. We are all born with this tremendous capacity to be anything, and we get shaped by our circumstances—by the family or the culture or the time period in which we happen to grow up, which are accidents of birth; whether we grow up in a war zone versus peace; if we grow up in poverty rather than prosperity.” (Zimbardo 2011, TED, Ideas Worth Spreading)

It is doubtful that Scot was born bad. His history suggests otherwise. The circumstances definitely influenced Scot’s actions and decisions.

Through research and experience as an accident investigator, I developed a process designed to look for and assess the myriad of things that influence decisions and actions. The process is called the Learning Review.

The Learning Review replaced Serious Accident investigation in the U.S. Forest Service in 2013, and has been used on all fatal accidents since then.

Through this process the organizational response to incidents shifted from finding simple cause and blame to understanding the network of influences that shape decisions and actions, which led to the a sincere focus on learning from the event.

It’s important to raise this history in The Crime Report now, because criminal justice professionals and the journalists who cover them have begun to wrestle seriously with the opportunity to learn in the aftermath of unexpected outcomes.

The National Institute of Justice and the Bureau of Justice Assistance are in the process of launching a dozen demonstration sites where all-stakeholders teams will explore the process of how to conduct “sentinel event reviews.” These are seen as comprehensive, forward-looking event reviews that aim for prevention. They are not disciplinary performance reviews of individuals.

Supported by technical assistance from the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania, the local teams will explore the sources of mistaken releases, wrongful convictions, “near misses,” avoidable shootings—all the events that can jeopardize public safety at many levels.

This federal effort amounts to a bet on the commitment and ingenuity of frontline state and local actors. It provides room to experiment with lessons derived from precursors such as the Milwaukee Homicide Review Commission, Elder Death Review panels, and opioid death review efforts, and from its namesake “sentinel event reviews” that the Joint Commission requires for hospital accreditation.

Ivan Pupulidy

Ivan Pupulidy, PhD. Photo courtesy Ivan Pupulidy.

The Learning Review can supply a core process template that criminal justice review teams can adopt, evaluate and modify.

Editors Note: See also Ivan Pupulidy’s TED talk on Learning Reviews.

 Ivan Pupulidy, Ph.D., first developed and implemented the Learning Review as a U.S. Forest Service Director. His career has integrated academic research with real world applications, based on his experiences as a mine geologist, exploration geophysicist and a U.S. Coast Guard pilot for rescue and law enforcement missions. He welcomes comments from readers.

from https://thecrimereport.org

Making Sense Out of Justice Tragedies

Can a process developed to analyze serious mishaps in the US Forest Service be applied to justice? Its creator believes that the “Learning Review,” now used in medicine and other fields to learn from accidents, incidents and normal work, without trying to affix blame, is ideally suited to criminal justice as well.

After the Parkland, Fl., school shooting last Feb. 14, the nation’s anger focused for a while on then-school resource officer Scot Peterson, who appeared to freeze outside the school while the gunman was firing.

“It’s easy…for people to go, ‘Oh, he should have known that that person was up there,’” Peterson, who was suspended and later resigned, said in a TV interview six months later.

Peterson explained that he stationed himself outside the building because that was where he believed the threat was located when he heard shooting.

Could we learn from asking different questions, designed to understand why it made sense for Scot to do what he did? Did our questions and conclusions lead us to deeper understanding and prevention, or did we add Scot to the list of those damaged by the Parkland shooter?

For a moment, let’s put away our natural bias to find people at fault. Let’s accept Scot Peterson’s account as accurate.

When we engage in a response to an adverse outcome event, we naturally create assumptions about the situation and, more to the point, people’s reaction to the situation. Pause for a moment and think about all the things that were not known by Scot. He did not know if there was a shooter – his first reaction was the thought that someone was lighting firecrackers.

He only heard a few shots. Were they the first shots or the last? He did not know where the shots were coming from; some reports suggested the football field.

Radio communications were not supporting the information-gathering and sense-making that Scot was attempting to conduct.

The later video showed four-plus minutes of nothing happening. If there was a school shooter, shouldn’t there be more activity? Just in case, Scot clears the area and begins shutting down the school. His dispatch does not have any information because incoming 911 calls are being routed elsewhere.

There is nothing to confirm an active shooter.

Five-six minutes. This can seem like a long time to someone watching the video. There seems like so much time to react, to do something. But emergent situations are not like a video. Your mind races as you try to make sense of a flood of often-conflicting information.

When I flew aircraft, I was often accused of calm multi-tasking. From my experience five minutes can seem like an eternity, or it can go by in what seems like seconds. Granted, some people are better at this than others . But we should ask, “How much of success and failure can be attributed to luck?”

Philip Zimbardo, a world-renowned psychologist, who is best known for the Stanford Prison Experiment, has studied heroism and action in the face of adversity. He has asked what makes a villain and what makes a hero.

Zimbardo said in his 2011 TED Talk:

“Some people argue humans are born good or born bad; I think that’s nonsense. We are all born with this tremendous capacity to be anything, and we get shaped by our circumstances—by the family or the culture or the time period in which we happen to grow up, which are accidents of birth; whether we grow up in a war zone versus peace; if we grow up in poverty rather than prosperity.” (Zimbardo 2011, TED, Ideas Worth Spreading)

It is doubtful that Scot was born bad. His history suggests otherwise. The circumstances definitely influenced Scot’s actions and decisions.

Through research and experience as an accident investigator, I developed a process designed to look for and assess the myriad of things that influence decisions and actions. The process is called the Learning Review.

The Learning Review replaced Serious Accident investigation in the U.S. Forest Service in 2013, and has been used on all fatal accidents since then.

Through this process the organizational response to incidents shifted from finding simple cause and blame to understanding the network of influences that shape decisions and actions, which led to the a sincere focus on learning from the event.

It’s important to raise this history in The Crime Report now, because criminal justice professionals and the journalists who cover them have begun to wrestle seriously with the opportunity to learn in the aftermath of unexpected outcomes.

The National Institute of Justice and the Bureau of Justice Assistance are in the process of launching a dozen demonstration sites where all-stakeholders teams will explore the process of how to conduct “sentinel event reviews.” These are seen as comprehensive, forward-looking event reviews that aim for prevention. They are not disciplinary performance reviews of individuals.

Supported by technical assistance from the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania, the local teams will explore the sources of mistaken releases, wrongful convictions, “near misses,” avoidable shootings—all the events that can jeopardize public safety at many levels.

This federal effort amounts to a bet on the commitment and ingenuity of frontline state and local actors. It provides room to experiment with lessons derived from precursors such as the Milwaukee Homicide Review Commission, Elder Death Review panels, and opioid death review efforts, and from its namesake “sentinel event reviews” that the Joint Commission requires for hospital accreditation.

Ivan Pupulidy

Ivan Pupulidy, PhD. Photo courtesy Ivan Pupulidy.

The Learning Review can supply a core process template that criminal justice review teams can adopt, evaluate and modify.

Editors Note: See also Ivan Pupulidy’s TED talk on Learning Reviews.

 Ivan Pupulidy, Ph.D., first developed and implemented the Learning Review as a U.S. Forest Service Director. His career has integrated academic research with real world applications, based on his experiences as a mine geologist, exploration geophysicist and a U.S. Coast Guard pilot for rescue and law enforcement missions. He welcomes comments from readers.

from https://thecrimereport.org

Looking Beyond the ‘White Bears’ in Criminal Justice

Preventing wrongful convictions and misconduct means fixing mistakes and flaws before they happen. That’s only possible if justice agencies (and the media) stop focusing exclusively on whom to blame for an error, and look at the circumstances that make errors possible.

In a famous experiment, subjects were instructed not to think of a white bear for five minutes but to ring a bell if they did happen to think of a white bear. The subjects rang their bells on an average once every minute.

To see an example of this phenomenon in action consider the New York Times’ sustained coverage of wrongful conviction scandals in Brooklyn.

The star of this long-running series is retired New York Police Department detective Louis Scarcella. Fifty of Scarcella’s old cases are under review; at least ten have been overturned.

In the TimesScarcella has the status of a white bear.

Wherever a Brooklyn exoneration story starts, it will bend back toward Scarcella before it ends.

There’s nothing unnatural about this. Readers and editors love a monster. So, a Scarcella story will get some space; another might not.

Still, this augments a feature of American criminal justice commentary that seems very strange to people who take the word “safety” in “public safety” seriously: Our enduring conviction that safety can be pursued by asking “Who?” after a disaster, and skipping the “Why?” and the “How?”

The gravitational pull towards “Who” exerted by white bears like Scarcella is on display in the Times’ skeptical article describing the response of Eric Gonzales, the Acting Brooklyn District Attorney, to the allegations against the detective.

The Brooklyn prosecutors, according to the Times, “made a curious acknowledgment.” According to the article, “ even though they had agreed in recent years to dismiss seven murder convictions that Mr. Scarcella helped obtain, he had done nothing wrong.”

The Gonzales version of this conclusion quoted in the article strives to add a nuance:   “We just never found any allegations of specific misconduct — there’s not been a smoking gun.”

That didn’t satisfy Times reporter Alan Feuer. As Feuer wrote, “By stating on the record that it has no evidence that Mr. Scarcella committed any crimes, the district attorney’s office has relieved itself of a handful of unpleasant consequences.”

Maybe. But the Acting District Attorney, by clearing Scarcella, has intensified the need to find out what actually happened in the Scarcella cases.

If your system generates ten wrongful convictions (and leaves ten actual perps running free) when everyone is acting properly, then examining the weaknesses of your system is an emergency.

Your system constitutes a tragedy waiting to happen.

Interested in preventing future wrongful convictions? Then you have to move past the Times’ approach (“It’s Scarcella, hang him”) and the Acting District Attorney’s (“Scarcella cleared, nothing to see, move along”) and account for the many other factors that, safety experts would warn us, contribute to criminal justice errors and, if adjusted, could contribute to preventing them.

A wrongful conviction is an “organizational accident.”  Many small failures, no one of them independently sufficient to cause the event, combine and cascade, and only then produce a tragedy.

Even if you stick with the “Who” questions, you have to recognize that—as none other than Louis Scarcella himself once pointed out—he didn’t do it alone.

Somebody hired, promoted and assigned Scarcella. Someone was supposed to supervise him. The crime scene and forensics people were supposed to investigate the cases too.

Someone designed, and someone was supposed to maintain, an elaborate scaffolding of rules and procedures organized to deal with the reality that now and then a “Louis” may show up. The prosecutors, the defenders, the judges, the jurors and the appellate courts are all supposed to intercept his mistakes. Someone organized the responsibilities and training and set the budgets for this legion.

The answer to “Who is responsible?”  is  “Everyone involved, to one degree or another.”  We failed together.

How?  To answer that riddle you have to ask more questions. The answer “These are bad people,” just doesn’t suffice.

Even a Scarcella’s decisions—the incompetent or immoral ones included—were “locally rational.”  He made his choices; he had his reasons. Something in his environment provided incentives; something erased disincentives.

Ethical violations break moral rules, but whether people choose to break or follow the rules has a behavioral dimension; it isn’t purely a question of upbringing or intrinsic character. Fixable features of the everyday work culture that surrounds people can undermine or encourage compliance.

The seductive features we leave lying around can induce the next detective who comes along to zig when he should zag.

The same is true for all of the other fallible players: the other cops, the Assistant District Attorneys, the defenders, and the judges implicated in the exoneration nightmares.

Safety expert James Reason once argued  that although we can’t change the human condition, we could change the conditions under which humans work.

But we can only do that if we resist the temptation to move along without accepting the risks of turning over some rocks to analyze what those working conditions are.

It isn’t hard to see why the Brooklyn District Attorney’s office hesitates before undertaking the sort of non-blaming, all-stakeholders review of the circumstances and culture that surrounded Scarcella and that shaped his conduct which aviation, the military, and medicine would mobilize (and which the National Institute of Justice is exploring in criminal justice with its Sentinel Events Initiative).

To the Brooklyn prosecutors, any demand for that sort of comprehensive review inevitably looks like a vindication of the maxim that no good deed (e.g., creating an active Conviction Integrity Unit) goes unpunished. The Acting DA is afraid that any search for “Why” and “How” will inevitably turn up more than one “Who” —in fact, lots of “Whos,” and lots of them within the DA’s office.

After all, any review that assesses the choices not only of a Scarcella but of the whole system and includes the prosecutors involved in his cases will expose people who are not swashbuckling Scarcella types, but are the innocent authors of omissions, slips, oversights, dangerous “work-arounds,” and other simple human errors.

Why risk making “white bears” of those staff members for the foreseeable future—vulnerable to the arbitrary (and persistent) attentions of the Times and others?

But as uncomfortable as it is to say it, exonerating the innocent, waving off Scarcella, and then moving on really isn’t enough if prevention of future tragedies is something you care about.

In fact, it doesn’t begin to be enough.

Calling endlessly for the discipline or prosecution of Scarcella isn’t enough either.

It may be that Louis Scarcella is every inch the creep that many contend he is, but we have to be careful about seeing this White Bear as a White Whale. Scarcella didn’t, like Moby Dick, act from “inscrutable malice.”

The white whale is a powerful literary device, but tolerating the illusion that the only thing wrong in Brooklyn criminal justice is that a white whale comes along now and then and requires harpooning isn’t simply incomplete; it is false.

The fact is, the Times’ approach and the Acting District Attorney’s reinforce each other.

We all need to look past the One Big Villain explanation.

James Doyle

Interventions—small changes in the practice of any one of an array of other people—could have changed the catastrophic outcomes in the wrongful convictions cases.

Those people don’t want to convict the innocent and leave the guilty free. They will change their practices if we can help them figure out how. We should enlist them in working to improve the safety consciousness of their everyday frontline work.

They present a much more hopeful path to future safety than the punishment (or not) of Louis Scarcella.

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

from https://thecrimereport.org

What the Movement for Patient Safety Could Teach Our Flawed Justice System

A unique Massachusetts agency devoted to the analysis of medical errors, inspired by the 1995 death of award-winning Boston reporter Betsy Lehman, could be a model for getting past the bitter debates about who to blame for miscarriages of justice.

Twenty-three years ago, the Dana-Farber Cancer Institute, a prestigious Harvard teaching hospital, killed a 39-year-old woman undergoing experimental breast cancer treatment by giving her massive overdoses of a chemotherapy drug.

She died as she was preparing to leave the hospital and go home to her two daughters, aged 7 and 3.   The doctors didn’t listen to her warnings that there was something terribly wrong, and they missed tests indicating heart damage.

The medication error (four times the intended dose) was not discovered until a routine data check by a clerk months later.   A second patient had received a similar overdose during the same week.  She barely survived.

Betsy Lehman. Courtesy of Betsy Lehman Center (still from video)

The fatal victim was Betsy Lehman, a respected health reporter for the Boston Globe, and the media reaction was apocalyptic.

There were 28 front-page articles damning the hospital.  The Globe editorialized that the mistake wouldn’t have been made by a first-year medical student.  A Globe columnist wrote that the overdoses “would make the Three Stooges look like brain surgeons.”

Sometimes, it seems that the criminal justice system generates a comparable front- page tragedy every day—horrific outcomes that no one wanted, inflicting death and trauma.

An officer shoots a deranged schizophrenic in front of his family.  An innocent man is wrongly convicted, while the real perpetrator goes free and finds more victims.  Dangerous killers are released while harmless low level arrestees wait for years in jail unable to post money bonds, then hang themselves.

The aftermath of these events has become as stylized as Kabuki theater.  There are cries for prosecution or discipline of the cop or Assistant District Attorney at the sharp end of the system.  This happens, or it doesn’t.

And that’s where things usually end.   “Nothing more to see here, move along” becomes the organizing principle.

Until the next time.

The Lehman tragedy, as one writer put it,  “became patient safety’s Chernobyl (and) helped lead to the recognition that medical errors are most often caused by system-wide failures rather than by an individual who goofs.”

People thought that if this could happen at Dana-Farber, and to a savvy health reporter, it could happen anywhere, and to anyone.

The Lehman tragedy won’t help us understand the flaws in the criminal justice system if we insist that criminal justice is an issue simply of controlling the streets.

But it provides invaluable lessons if we start to take the word “safety” in “public safety” seriously.

The safety we’re talking about here is everyone’s safety, and it will have to be co-produced by criminal justice operators and the communities they serve.

We want to be safe from violent crime, but also from wrongful convictions.

We want acutely ill mental patients to be safe from police shootings, but we also want passing pedestrians and intervening cops to be safe from armed and poorly medicated schizophrenics who should never have been left untreated in the first place.

We want everyone in our communities to be as safe as possible from the collateral damage that blinkered efforts at crime control inflict. That means being safe from assignment to a reduced form of citizenship in which residents are injured by fruitless, harassing stops and frisks, or extended pretrial detentions, and in which young men are buried under a “permanent CV“ that compiles bogus misdemeanor arrests and makes  employment impossible.

Dana-Farber’s initial response to the media firestorm following Betsy Lehman’s death was no model of deftness.  Wide discipline was handed out; internal reports were leaked; doctors filed libel suits; lawyers feuded.   There was a period of chaos.

But ultimately under public and regulatory pressure, the hospital shifted its entire organization. It began to focus not on the “who?” behind the medication errors but on the “why?”

Dana-Farber recognized that safety should be a core property of its system of care.  It gave senior clinical leaders safety responsibility.  It recognized a need for a relentless focus on risk, error and harm, and nourished its error-reporting system.

The institute involved front-line practitioners in the design of protective systems:  in all-ranks, all-stakeholders, teams that included the community and the families of patients.  It recognized safety as something “co-produced” by medical staff and patients.

It made transparency a central goal and, most importantly, it recognized that safety work is never finished; that nothing is permanently “fixed” and that continuous work on quality improvement is the only route to true safety.

This thinking is incubating in criminal justice.

The National Institute of Justice’s Sentinel Events Initiative has promoted an exploration of all-stakeholders (and all-ranks) non-blaming reviews of adverse events and “near misses” and “good catches” where only last-minute luck or exceptional skill avoided a tragedy.

The Police Foundation has launched a Law Enforcement Officers Near Miss utility that tracks the lessons of safety incidents.  The National Commission on Forensic Science has called for routine “root cause analysis” of forensic science errors.

And this is a movement occurring not just at the 30,000-foot level nationally, but also at the grass roots.  The City of Tulsa, for example, now recommends that police conduct non-disciplinary peer reviews of critical incidents.  There are signs everywhere that versions of the painful lessons Dana-Farber learned are being incorporated into criminal justice.

But there is one tantalizing product of the Lehman tragedy that criminal justice has not yet emulated and might consider:  a state or local system-oriented center for carrying out the all-stakeholders work of producing criminal justice safety.

The Betsy Lehman Center is now a small Massachusetts state government agency devoted to patient safety.  (The budget is about $1.5 million.)

Its goals are to:

  • Identify and disseminate information about evidence-based best practices to reduce medical errors and enhance patient safety;
  • Develop a process for determining which evidence-based best practices should be considered for adoption;
  • Serve as a central clearinghouse for the collection and analysis of existing information on the causes of medical errors and strategies for prevention; and
  • Increase awareness of error prevention strategies through public and professional education.

And, strikingly, the Lehman Center’s enabling legislation not only provides a place where practitioners and community stakeholders can focus on safety, it provides a safe place.

Information, accounts, and data collected by or reported to the Lehman Center are not public records, and accordingly not subject to FOIA requests. They are confidential: not subject to subpoena or discovery or being introduced into evidence in any judicial or administrative proceeding, except as otherwise specifically provided by law.

What if we had these in criminal justice?  Modest state (or city, or county, or regional) agencies devoted not to punishing the last criminal justice disaster, but to learning how to prevent the next one?

The financial costs of criminal justice mistakes are, at least at this point, nothing like those involved in medical malpractice, but they are not trivial.  Cutting the risk of paying for repeated avoidable errors in the future probably makes economic sense.

But there’s more to it than that. Whether a criminal justice mistake costs money or not, it does harm, and it erodes public trust in the law and its officers.

Just as a hospital’s mission is healing, not avoiding lawsuits, the criminal justice system exists to dispense justice, not to evade civil judgments.

Criminal justice life provides many “teaching moments”—good catches, near misses—high frequency/low impact events that don’t implicate worries about damage suits.

Even so, there’s no sense in pretending that the threat of damage suits, professional discipline, and even criminal prosecution does not chill productive discussions of the preventable unintentional slips and errors built into the system.

No system can survive without punishing its conscious rule-breakers and compensating their victims.  Those things shouldn’t stop. (The fact is, there are places where there probably aren’t enough disciplinary reactions.)

But explicitly disentangling the forward-looking safety function from disciplinary and punitive processes by giving it a specific place can be an important step in the right direction.

The investment isn’t huge.  The pay-off—in terms of avoiding death, trauma, public alienation, (and, yes, multiplied liability payments for future repetitive failures)—might be enormous.

And, paradoxically, providing some measured confidentiality could even increase net transparency too.

Events that might otherwise be shrugged off or buried can be studied (as the NTSB studies transportation disasters) with confidentially gathered information, and their lessons and data then reported to the public in aggregated or carefully anonymized form.

Maybe the most interesting lesson of the Lehman scandal for readers of The Crime Report is the decisive role that the media firestorm over Lehman’s death played in launching the modern patient safety movement.

There was plenty of hunting for scapegoats and villains in the aftermath of the Lehman overdoses.

But the cumulative Lehman coverage, because of the depth and duration of the investigation provided a sustained interrogation of an august institution and its systems. It energized a paradigm shift by teaching people to see that these tragedies aren’t single-cause events created by lone “bad apples.”

Coverage of the next exoneration that comes along could move the criminal justice system in the same way.

James Doyle

If anything is clear from the struggle for safety in industry, aviation and medicine it is that we can’t improve things while acting within our silos.  Cops, lawyers, corrections and mental health practitioners, crime survivors, and their communities need a place to work on these things together:  to make criminal justice something done with, not “for” or (as it often seems) “to” the communities.  They all know this.

The Betsy Lehman Center might provide us with a vision of how to make that ambition real.

Build it, and they will come.

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

from https://thecrimereport.org

In Criminal Justice, the “Simple” Solutions Are Usually Wrong

Innocent citizens who have experienced the violent impact of systemic failures in criminal justice deserve better than analyses that focus “blame” on individual players. So do future defendants who may face punishment out of proportion to their crimes. Horrifying or tragic stories too often drive policy without addressing the complex series of cascading failures that created the ultimate result.

Sometimes, traditions in journalistic coverage can wrench a public discussion down the wrong path.

A recent Washington Post series on the District of Columbia’s criminal justice system targeted flaws in the Youth Rehabilitation Act (YRA), detailing horrific acts of violence and frightening statistics neatly juxtaposed with anodyne responses from criminal justice spokespeople.

The articles raised serious questions about the operation of the criminal justice system in the District of Columbia, and linked them to flaws in the YRA, which many have characterized as the District’s “Second Chance” Act for troubled youth.

James Doyle

James Doyle

By presenting compelling stories of violent young men sailing through the system unchecked to find innocent victims, it was firmly in the classic tradition of investigative journalism: Presenting a series of facts calculated to generate (perhaps) justified outrage—in this case about early or mistaken releases resulting in violent victimizations.

But it’s good to remember that outrage alone is never enough.

The series identifies two elements in the YRA that have contributed to the tragedies:

  • The discretion allowed D.C. judges to sentence young offenders to less than the mandatory sentences designed for more mature offenders.
  • The ability of District judges to expunge young offenders’ criminal records if the offenders meet established requirements of rehabilitation—a judicial prerogative included in the Act which is aimed at clearing the “permanent CV” that cripples many young lives right at the beginning.

The implicit argument is that if both these options were eliminated, safety would ensue.

The political fallout from the series and calls for accountability seized on those two points, with local authorities pledging to curb what was described as parts of the YRA that led to “leniency” for certain types of youth offenders.  But while they may sound logical, such “solutions” set a trap into which many failed criminal justice reforms have fallen.

They launch a convulsive pendulum swing from a practice of releasing too many people to a policy of releasing no one at all.  Simple solutions are presented in the face of complex problems, and myriad “false positive” incarcerations are accepted as the price of eliminating “false negative” releases.

But there’s a sounder and more productive approach to dealing with the facts presented in articles like these and, by implication, with the all-too-common responses of the justice system to “outrageous” examples of flaws in that system.

Why not do what aviation or medicine would do in the face of a tragedy?  Why not take the word “safety” in “public safety” seriously?

There is a tool that enables us to do precisely that. It involves instituting the practice of all stake-holders’ “Sentinel Event” reviews of bad outcomes.   Such an approach brings together all of the responsible actors—judges, probation officers, prosecutors, defenders, social workers, prison officials, and community members—to examine the systemic failures that led to each documented tragedy in a non-blaming, objective, and forward-thinking way whose principal objective is ensuring public  safety.

The National Institute of Justice is currently spearheading an exploration of this “Sentinel Event” approach across the nation.

Inspired by the safety focus of aviation and medicine, Sentinel Event reviews accept the reality that errors will occur in any complex system.  The key is to see error arising from   interconnected systemic failures—not one easily identifiable “bad apple.”

The wrongful conviction is never the result of a lone bad prosecutor.  The shooting is never the result of a lone bad police officer.  The causes are deeper, more systemic; removing the bad apples never fixes the problem.

Sentinel Event reviews offer an opportunity to examine how the systems work together.  Why did the wrongful conviction—or the mistaken release—actually occur? Why was it not caught? And more importantly, how can we fix this systems failure so that it will not be repeated?

The Sentinel Event approach could have been usefully applied to the tragic failures of the Youth Act identified by the Washington Post.  In fact, read in total, the Post’s investigative reporting identified many of the systemic flaws that require systemic fixes, including the interaction of the probation department, federal authorities and local courts.

But by traditional journalistic standards, it was more compelling to target the “bad apple”—in this case, the YRA law—and seize on that as the source of the solution. As if picking a rotten apple would cure a diseased orchard.

A Sentinel Event review asks the harder questions. (Journalists should ask those questions, too.)

Do the tragic stories really support the conclusion that the YRA itself is at fault?  Bipartisan political agreement now calls for more, not less, discretion in criminal sentencing; for lower sentences; and for alternatives to incarceration.  The YRA actually provides all of those tools.

Similarly, criminal justice experts, including conservative members of the Supreme Court, have recognized that youth are different in terms of brain development and emotional maturity. So sentencing youth as if they were fully grown adults runs counter to the prevailing scientific and legal consensus.

And what about all of young men and women who took advantage of the YRA and turned their lives around?

Andrew Guthrie Ferguson

Andrew Guthrie Ferguson

The Washington Post itself has profiled some of these success stories: Young people who have become entrepreneurs, poets, and just ordinary contributing citizens. Without the YRA, they would still be warehoused without the opportunity to change.

So the right question to ask is:  “Does the YRA have to be destroyed or, can the YRA be made to work safely?”

That’s the ultimate Sentinel Event question.

After all, no one wanted these tragic results.  And it simply can’t be true that “the law made them do it.” The whole point of the YRA is that it permits a range of choices.  Why did the judges zig when they should have zagged? What happened in the community?  What did not happen?   What was expected, and what was actually provided?

“Who” failed is less important than “why” things failed. A Sentinel Event review with the perspectives of each of the responsible actors in the room, looking for solutions— not finger-pointing—can provide the basis for sustained reform.

These Sentinel Events reviews are not idle exercises. They work.

One effort led by Milwaukee District Attorney John Chisholm, confronted just the sort of problem raised by the Post series:  a young offender, “covered with red flags” who was released anyway, and almost immediately killed an innocent young woman.  Chisholm held meetings with all of the groups responsible for the young man.

As Douglas Starr reported in The New Yorker, “Over a period of several months, [these meetings] revealed that, in almost every incident, the people who made decisions about the boy had not seen his larger pattern of violent behavior because they did not have access to his complete records, or did not see them.”  The group found defects to repair; it changed protocols; it made things safer.

Complex questions deserve complex answers.

Those innocent citizens who felt the violent impact of systemic failures deserve answers. Those future defendants who may face the powerful impact of criminal sentencing deserve answers.  Without answers, these admittedly horrifying stories will drive policy without addressing the complex series of cascading failures that created the ultimate result.

The YRA problem provides the perfect test case for Washington political leaders and criminal justice professionals to examine.  A steady practice of Sentinel Event reviews, incorporating the existing DC Criminal Justice Coordinating Council, but also including people from all levels of responsibility, can begin that process of rehabilitating the YRA.

And, one hopes, the final article in the Post series could cover the results of this systemic change with all of the complexity that a public safety problem deserves.

Andrew Guthrie Ferguson is a law professor at the UDC David A. Clarke School of Law.  He is a former public defender in the District.  He works with YRA-sentenced returning citizens as a Board Member of the Free Minds Book Club. James Doyle, a Boston defense lawyer and author, is a frequent commentator for The Crime Report.  They welcome readers’ comments.

 

from http://thecrimereport.org

Sully’s Real Lesson: Heroes Alone Won’t Protect Us From Disaster

Clint Eastwood’s new movie offers an object lesson in why the conventional Hollywood approach to mistakes or near-disasters is wrongheaded. In criminal justice, focusing on heroes (or villains) can’t help us learn why things went wrong—and how to change them.

Photo by Ingrid Taylar

Photo by Ingrid Taylar via Flickr

Clint Eastwood’s new movie, “Sully,” dramatizes the short journey of US Air Flight 1549 under the command of Capt. Chesley “Sully” Sullenberg.   The flight, from its take-off, through the bird strike, to ditching in the Hudson River, takes about six minutes.

Then comes the National Transportation Safety Board (NTSB) investigation.

According to New Yorker critic Richard Brody, the film is really “about a real-life action hero who is nearly destroyed by pencil-pushing bureaucrats lacking a scintilla of his experience—and about precisely the kind of knowledge and experience that Sully relies on to pull off the landing.”

There’s a whole ideology of safety concealed in that sentence.  Its cardinal rule is  “Good man; good result. ”  That rule has a converse, “Good result, good man.”

Now and then, as with Sully, we encounter “Great result; great man.”

And implicit in this approach is the rule’s dark sibling:  “Bad result; bad man.”

The NTSB’s vile sin in director Eastwood’s eyes was to have had the temerity to question the decision-making of the great man.  (I mean, the passengers survived, and this is Tom Hanks, for God’s sake!)

Everything, in the end, comes down to a matter of character—a question of upbringing.

If you want to understand an accident, the only question you really have to ask is “Who?”  Get that answer, and you can stop there.

To see this thinking in action in criminal justice consider the reaction to two pieces published last week by New York Times columnist Jim Dwyer.

Dwyer described separate examples—one in Brooklyn, one in Queens—of wrongful convictions in which the prosecution failed to turn over exculpatory evidence.  These weren’t close cases.  In Brooklyn, two reports that witnesses had identified another man vaporized.  In Queens, no one turned over evidence of an entire narrative of a neighbor of the defendant’s who was arrested with guns on the night of a road rage shooting.

Dwyer made it plain that these were straightforward violations of the rule of Brady v. Maryland that requires that prosecutors provide the defense with evidence of innocence:  very obvious misconduct.

But because it wasn’t exactly clear who on the Queens prosecution team had done what, Dwyer did not publish the name of the Queens trial prosecutor.

For this omission,  Dwyer was treated to a storm of abusive tweets, righteous e-mails, and derisive blog posts, all ridiculing him for failing to answer “Who?”

Apparently handicapped by their own hyper-ventilation, Dwyer’s critics missed the fact that Dwyer had spent his time on a more productive question.   Dwyer had pushed further than “Who?” and wondered about “Why?”

In effect, Dwyer did what the National Transportation Safety Board does.  He sketched an event review, not a personnel department’s performance evaluation, or an ecclesiastical moral judgment.

Clint Eastwood notwithstanding, the NTSB report on Sully’s experience, far from being an ungrateful attack by jealous pygmies on a great man, is a careful examination of how to avoid replicating the same circumstances that Sully withstood when the next pilot—who might be a pretty good pilot, but maybe not a great man—has command of the plane.

Capt. Chesley "Sully" Sullenberger. Photo by Ingrid Taylar via Flickr

Capt. Chesley “Sully” Sullenberger. Photo by Ingrid Taylar via Flickr

One of the things the NTSB concluded was that there was a lot of luck involved in the survival of Flight 1549’s passengers.  One piece of luck was having a very experienced crew in the cockpit.  But there was other luck too.  It was, for example, pure happenstance that Flight 1549 was one of a relative handful of US Airways jets equipped with front door slides for water evacuations.

And it became very clear that if nothing is changed before that next, pretty good,  pilot faces a low altitude dual engine power loss  that pilot will have been set up to fail.

There was no US Air checklist for low-altitude dual engine failures, and the elaborate checklist for high altitude failures (which Sully ended up ignoring) would have occupied a compliant low-altitude crew all the way into the ground.

A 2005 NASA study  of voluntarily reported “near miss” events had revealed an 86 percent success rate in “textbook” emergencies where pilots had an adequate checklist, only a 7 percent success rate in “non-textbook” emergencies for which they did not.  In other words looking at the “Whys?” illuminated something important that could be done.

Dwyer asked why the prosecutors zigged when they should have zagged.   Would the same reasons lead the next prosecutor down the same path? He confronted the fact, as the headline of one of his columns put it, that “A False Conviction is Overturned, But the System That Produced It Remains.”

No system can survive without disciplining its conscious rule-breakers.

But simply whacking the lone “Who?” and stopping there doesn’t repair the situation.  As the lawyer for Wayne Martin, the Brooklyn defendant,  pointed out in the Daily News, the since-exorcised trial prosecutor in that case didn’t do it alone.

Wrongful convictions are system failures.  They aren’t caused by lone wolves; they happen when small violations—no single one of them sufficient to cause the result alone— combine with each other and with latent system weaknesses.

Even if we put aside for the moment the fact that a wrongful conviction requires not only a Brady violation but also an upstream failure by the early police investigators to identify the true culprit and a downstream inability of the defenders to uncover the Brady violation, or to compensate for its impact, much remains to be explained about the prosecutors’ actions.

Were Dwyer’s  two prosecutors uniquely sociopathic individuals?  If so, how did the two DA’s offices go about identifying, recruiting and hiring them?  Did they see themselves as renegades within their offices, or had they become convinced when they were young ADAs that this was normal, “how things are done?”

Why did they think that?  Who trained them? How? About what?   Who supervised them?

Is it conceivable that these were their first Brady violations?  Why did their prior rule-breaking escape notice? Who sat by silently when that happened?  And crucially, why did they sit by silently?

The potential contributing factors in the system that Dwyer surveyed included the content of the Brady rule itself, the inadequate funding of defense lawyers, the see-no-evil attitude of trial judges, and the lack of institutional accountability.

One of the reasons that aviation’s accident rate is so low is that the field has fully embraced the need for a “culture of safety:” For a world in which it is routine for NASA and the NTSB to investigate the “Whys?” of near misses and completed events.

At the core of these efforts, (now also at the core of medicine’s patient safety movement), is the conviction that by understanding “organizational accidents” and their many contributing causes we can develop a “forward-looking accountability” that doesn’t limit “accountability” to punishment of bad guys but extends it to the prevention of future disasters.

That is, to an accountability that makes sure the right checklist is in the pilots’ hands when the birds hit the turbines.

The National Institute of Justice has embarked on a scientifically scrupulous  exploration  of whether these ideas can be translated into criminal justice.  Can some template be developed, tested  and evaluated that local jurisdictions can then use in balancing attention to rule-breaking with the non-blaming, all-stakeholders analysis that improves future outcomes?

Other voices, such as the President’s Task Force on 21st Century Policing and the National Commission on Forensic Science have called for the systematic, forward-looking, evaluation of critical events.

But this new understanding of how things go wrong presents a continuing professional challenge to criminal justice journalists that deserves some concentrated attention.

Jim Dwyer’s approach to the two wrongful convictions he described breaks fertile ground because he pushes on the “Whys?” and doesn’t luxuriate in exposing the “Whos?”  But Dwyer is a columnist who in that role enjoys considerable autonomy and a little time to think things over.  He is no longer a reporter covering spot news, or an editor handing out assignments and reading copy under deadline pressure within a tightening news cycle.

Can criminal justice journalists find a way to make room in their coverage for “system-oriented” analysis?  Can some future sober, NTSB-style report of a “sentinel event” in criminal justice be accepted and explained, or will it—like Dwyer’s columns—be attacked as a cover-up for failing to provide someone to hang?

Do we have to stop at scapegoats, or can we illuminate system weaknesses?

James Doyle

James Doyle

And—although here I am speculating—do criminal justice journalists have to weigh the possibility that the “Who to excoriate?” traditions actually degrade safety by gently driving reports of “near misses” and “good catches” in criminal justice underground?

The fact is that criminal justice journalists, if they decide to take on this challenge, are going to have to think it through under conditions of time pressure, resource scarcity, and cultural inertia:  just like the people they are covering in criminal justice who are thinking about it too.

James Doyle, a Boston defense lawyer and author, is a frequent commentator for The Crime Report.  He welcomes comment from readers.

from http://thecrimereport.org

What We Can Learn From Baltimore

The DOJ’s devastating report on Baltimore policing could help point us towards a more productive way of thinking about improving public safety—as something more than just reducing crime rates.

Baltimore TyroneWest Protest 2016 SocialJusticeSeeker812

Baltimore protest against Tyrone West shooting, 2016. Photo by SocialJusticeSeeker812 via Flickr

There is a sense in which the news in  the  Department of Justice’s report on the Baltimore police last week is so bad it’s good.

Not that the situation described in the report is good. The situation is horrific.

On the streets of Baltimore’s black neighborhoods, people live in the dystopia that John Adams portrayed in his closing argument in the Boston Massacre trial:  a world where people are forced to learn that “Whether I do well or ill is of no account, because innocence itself is no protection.”

Adams warned that when this recognition takes hold in the mind of the citizen, “That will be the end of all security whatsoever.”

In Baltimore, Adams’ nightmare has come true.

In black Baltimore, whether he was innocent or not, a young man was  going to be stopped and frisked.  Over 96 per cent of the thousands of pedestrian street stops in Baltimore turned up nothing at all.

The great virtue of the DOJ’s Baltimore report is that it finally makes it clear, once and forever, that “safety” can’t be captured by crime rate data alone.   To be “safe “ you have to be safe from criminals, but you have to be safe from crime-suppression policies and practices too.

A fascinating aspect of the DOJ report—a feature with important implications for the future—is that it applies to the Baltimore context the same approach that safety experts in industry, aviation, and medicine use in analyzing latent dangers.

This decision to treat criminal justice practice as a safety problem is a leap in the right direction.

The DOJ Baltimore report, using safety principles, does not stop with “The cops on the street are racists”.   It widens the lens to recognize that every harassing stop, every use of excessive force, every strip search, is a system failure:  an “organizational accident.”

Yes, the street cop is responsible for his acts and should be held accountable. But if we want to change things, we have to account for people far from the scene:  people who set up that cop’s working environment and provided his incentives.

If we don’t do that, the next cop will face the same situation, and is all too likely to react to it in the same way.

The DOJ report exemplifies a rigorous  “forward-looking accountability” that recognizes the roles of the supervisors who demanded “outputs” and pushed for unconstitutional stops, the trainers who failed to transmit Constitutional values, the policy-makers who demanded “zero tolerance” enforcement in black neighborhoods, even of the housing industry and lending moguls whose red-lining practices created a  “Two Baltimores”  reality in which crime control free-fire zones flourished.

The safety approach helps make it clear that the Baltimore situation was not created because someone sat down one day and decided to create it.  Confront the Baltimore authorities with the results of their work and they will say in all honesty that this is not what they wanted.

But by employing the safety lens we can begin to understand how everyone’s actions, up and down the line, contributed in some little measure to the outcome.

The Baltimore situation was created— as many disasters (the launch of doomed space shuttles, or the crash of a poorly maintained airliners) are—by a process of drift, by  “the normalization of deviance.”

A political slogan (“Zero Tolerance”) becomes a policy.  Middle managers struggle to devise tactics and techniques for applying that policy, but only in African-American neighborhoods.  To take one example:  the practice of “arrest-and-release”, where a resident is taken into custody on no basis, held for a few hours or overnight, and then released.

The cops on the street then execute the policy as they understand it and try to satisfy their managers as best they can.

In any organization under pressure, frontline people make a million small decisions that drift closer to the margins of safety (or legality). When nothing drastic happens that they can see, a “new normal” is created, and that normal provides the point of departure for the next small downgrade in safety (or legality).

Trying to make your Compstat numbers, you perform an intrusive street search on a little less than “reasonable articulable suspicion.”  Nothing bad happens, and your supervisor is still screaming about “outputs.”   So, you’ll perform the next search on a little less evidence than the first.

This isn’t unique to the police. Workers everywhere develop “covert work rules” that help them do the “real” job their supervisors demand even when formal rules forbid those actions.

But if you are asking a street cop to do 20 street stops on Tuesday, issuing a new policy that asks him to reappear as Officer Friendly on the same streets on Wednesday won’t work.  He will decide that his goal must be to “own the street.”  Pretty soon you inevitably face the colonial city Frantz Fanon described in French Algeria, divided into separate halves that communicate with each other by a language of “terror, counter-terror; violence, counter-violence.”

The key lesson from the safety experts is that announcing new rules, penalties, and components won’t permanently answer these problems.  Those “fixes” will be under immediate attack from their environment, just like the last fixes.

But safety thinking also provides another, more hopeful,  lesson:  access to a new practice that might provide a ladder we can climb out of the hole that we’ve dug.

What we need—as industry, aviation, and medicine have learned—is progress toward a new “culture of safety” in which all of the players recognize their individual responsibilities for a safe collective outcome, and work continuously—everyone, all the time—on improving safety practice.

Yes, we have to discipline rogue cops, but we can’t discipline our way to safety.

The Baltimore report shows us that as much as we need discipline, we need resiliency.   We have to devise a routine in which we work collaboratively with all stakeholders to catch “sentinel events” such as bad street stops, and in which errors are viewed together, in a process that involves identifying their complex sources, illuminating their disparate racial impacts.

The final element of this process is acting to prevent the next recurrence.

We have to provide a protected place where we can hear the perspectives of all ranks (the patrol officer and the middle manager as well as the Chief).  We especially have to include the perspectives of the community members whose safety is our ultimate goal.

Only in this way can we untangle the impacts of the system’s components on each other and of the warping pressures from their environment on all of the system’s actors—and see the ways in which frontline operators can be “set up to fail.”

This process is not designed solely to produce today’s “answer” to a problem.   It can also provide a reliable venue for generating the good questions about how today’s answer might be threatened, undermined, or outflanked tomorrow.

James Doyle

James Doyle

We can’t do this “for” communities. If we try to do this unilaterally and top-down, we will probably just end up doing something new  “to” the communities.  Certainly it will look that way to the communities’ members.

But once we accept the lesson that “safety” means something more than “low crime rate” we can work with communities to build a real culture of real safety on the streets.

James Doyle, a Boston defense lawyer and author, is a frequent commentator for The Crime Report.  He welcomes comment from readers.

from http://thecrimereport.org