My grandfather and his cousins were all physicians. They shared a mordant sense of humor\u2014a useful coping mechanism in the pre-penicillin era.<\/p>\n
My father remembered their persistent teasing of the relative we all called Uncle George about the sheltered existence his specialty afforded him.<\/p>\n
\u201cYou surgeons are lucky, George,\u201d An orthopedist (or pediatrician, or obstetrician) would say at some point in an evening, \u201cYou get to bury your<\/em> mistakes.\u201d<\/p>\n Medicine has a long way to go<\/a>, but it has made progress since Uncle George\u2019s day. Dr. Donald Berwick<\/a>, one of the pioneers in medicine\u2019s patient safety movement, spoke for many in health care when he recognized that \u201cevery defect is a treasure\u201d\u2014that every error can be an important source of learning.<\/p>\n \u201cMorbidity and Mortality\u201d reviews are routine. The Joint Commission on Hospital Accreditation now requires programs of \u201csentinel event<\/a>\u201d reporting in hospitals. Efforts<\/a> are underway to mobilize modern IT capabilities to track patient experiences from primary care diagnosis through specialist consultation and treatment, to resolution, and to inform the \u201cupstream\u201d caregivers of the accuracy and consequences of their early judgments.<\/p>\n By learning whether their diagnoses have been confirmed or refuted (and how), the primary care doctors can recalibrate their confidence in their own early processes.<\/p>\n Maybe the patient should have been asked more questions, or different questions. Maybe more tests, or different tests, were needed.<\/p>\n The recent announcement<\/a> by the National Registry of Exonerations that it had recorded the 3,000th exoneration since 1989 indicates that the American criminal justice system can\u2019t hide all of its disasters.<\/p>\n But don\u2019t mistake the Registry\u2019s list for proof that the criminal system isn\u2019t trying\u2014and trying very hard\u2014to cover up its failures, and to enjoy Uncle George\u2019s level of impunity.<\/p>\n The Registry\u2019s wrongful conviction compilation doesn\u2019t alter the reality that the cover-up process usually succeeds.<\/p>\n Innocent people are left penned in prisons. Actual perpetrators are left free on the streets.\u00a0 Tactics leading to \u201clawful-but-awful\u201d police shootings stay in the field manual. Dangerous psychopaths are released. Deserving victims of mistakes are denied compensation.<\/p>\n Meanwhile, the public is fed the spurious image of a system that is purring along\u2014and practically infallible.<\/p>\n But let\u2019s focus on something less obvious\u2014on the dangerous fact that when the criminal system\u2019s designers and operators hide bad outcomes from the rest of us, they are also hiding the lessons of those events from themselves<\/em>.<\/p>\n We are operating criminal justice as a closed (<\/strong>ironically, the technical term is \u201copen-loop\u201d)\u00a0<\/strong>system\u2014a system without meaningful feedback loops.<\/p>\n In the process, practitioners are not simply forfeiting corrections and refinements in techniques and practices (although they are doing that); they are also losing sight of the purpose\u2014and thus of the rewards\u2014of their own daily work.<\/p>\n An elaborate architecture of devices, habits and cultural norms, designed and constructed to protect practitioners from embarrassment, uncertainty and sanction, corrodes recognition of why and how what the practitioners do (and don\u2019t do) matters.<\/p>\n One cost of letting practitioners work in unreviewable comfort is that we reduce them to the status of cogs in an industrial system.<\/p>\n What you did today, just do that again tomorrow. What happens when I do it? Doesn\u2019t really matter; it\u2019s not your problem.<\/p>\n From the outside, it can look as if the whole point of the criminal justice system is finding and exposing errors in police practices, investigations and charging. But that\u2019s not how peoples\u2019 days in the system are spent.<\/p>\n Policing is characterized by a \u201cculture of urgency.\u201d Trial courts are obsessed with clearing their dockets. Might something be wrong? Don\u2019t obsess about it. Decide. Then, just get on to the next one.<\/p>\n Trials are supposed to expose the mistakes, but we deploy an elaborate machinery of \u201ctrial tax\u201d threats and inducements to make sure that jury trials hardly ever occur.<\/p>\n Once a conviction is entered, or a police misconduct complaint is deflected, the system works to bury the victims as deeply as Uncle George\u2019s unlucky patients were interred in the graveyards.<\/p>\n Appeals are supposed to catch errors that occur at the criminal trials, but there are no trials in 97 percent of cases.<\/p>\n And when appeals do occur, they are concerned principally with errors objected to by trial counsel. In many places, public defenders are so underfunded, undertrained and overwhelmed by their caseloads that the number of those objections is depressed.<\/p>\n Besides, since appeals are focused on \u201charmful errors,\u201d appellate courts shrug off the myriad \u201charmless\u201d errors that are not independently (and inevitably) sufficient to cause a miscarriage of justice.<\/p>\n Actions that create contributing influences and conditions\u2014but don\u2019t constitute flick-the-switch Newtonian \u201ccauses\u201d\u2014go uncounted.<\/p>\n Subsequent post-conviction efforts to illuminate errors\u2014for example, errors obscured by the ineffective assistance of trial counsel, or by evidence-hiding trial prosecutors\u2014depend on having new counsel to investigate and bring the claims.<\/p>\n But at the state level, indigents rarely get appointed post-conviction counsel. Federal habeas corpus<\/em> jurisdiction is characterized not only by a shortage of counsel but also by procedural restrictions, time bars, presumptions of regularity, deference to state courts, and burdens of proof.<\/p>\n It makes the Biblical definition of an impossible task\u2014\u201cthreading a camel through the eye of a needle\u201d \u2014look like child\u2019s play.<\/p>\n The civil justice system might seem to offer a substitute. After all, as UCLA Prof. Joanna Schwartz<\/a> has shown, police departments could learn a great deal by attending to the claims raised in tort litigation.<\/p>\n But before feedback from civil litigation can inform anyone, it has to be worth someone\u2019s time and effort to bring a lawsuit in the first place.<\/p>\n Doctrines of \u201cqualified immunity<\/a>\u201d (for police misconduct) and absolute immunity<\/a> (for prosecutorial misconduct), especially combined with the scorched-earth strategies of municipal lawyers defending civil cases, deter civil lawyers from investing resources in pursuing recurrent errors.<\/p>\n Still, it isn\u2019t true that the criminal system has no<\/em> feedback loops. Actually, the situation is worse than that.<\/p>\n The system\u2019s actors subsist on a\u00a0menu\u00a0<\/strong>of cartoonish feedback generated by\u00a0Willie Horton<\/a>\u00a0and the steady diet of\u00a0headline-grabbing<\/a>\u00a0local \u201cHortonesque\u201d offenses occurring during probation or pretrial release episodes.<\/p>\n The only lesson a practitioner can derive from them is \u201cIt\u2019s better not to release any<\/em>one.\u201d<\/p>\n Aggregated statistical feedback about post-release recidivism can be accurate, but still accelerate momentum down mistaken paths. It generates pressure on frontline practitioners to observe a generic \u201cgoing rate.\u201d<\/p>\n But frontline work is diagnostic, not statistical, and confidence in the diagnosis can\u2019t be calibrated without feedback on outcomes of individual narratives.<\/p>\n The problem with simply spending your days applying the Willie Horton Rule or the statistical algorithm and then never learning the result is that you end up participating in cases like that of Kalief Browder<\/a>.<\/p>\n Browder was arrested as a boy for stealing a backpack. The court system took three years of his life. In the end, the experience probably killed<\/a> him.<\/p>\n What Willie Horton\u2019s case and Kalief Browder\u2019s case have in common is that each bore the fingerprints of dozens (if not hundreds) of justice system practitioners\u2014cops, prosecutors, defenders, judges, corrections and probation officers\u2014all doing what they thought was expected and not one of them wanting to bring about the horrific outcome to which he or she contributed.<\/p>\n To many, if not most, of these practitioners the names \u201cHorton\u201d and \u201cBrowder\u201d meant nothing. They were just numbers on one day\u2019s docket list.<\/p>\n Professional actors sorting huge caseloads develop a stylized, stereotypical view of a defendant\u2019s future: a hazy sense of what \u201cprison\u201d or \u201cprobation\u201d entails\u2014and possess only an abstract notion of who a future victim might be.<\/p>\n De-humanizing the defendants and seeing them as packages to be forgotten as soon as they\u2019ve been dispatched down the conveyor belt may seem self-protective\u2014to hold emotional involvement at bay\u2014but the practice de-humanizes the practitioners themselves.<\/p>\n Before long, \u201chuman\u201d has little to do with the work or the workers.<\/p>\n For practitioners, foreboding about surveillance and discipline is an issue. It seems unfair to be held accountable for results that they themselves only peripherally controlled\u2014to choose under overwhelming production pressure the second-best option from an array limited to a dozen bad choices\u2014then be criticized for the outcome.<\/p>\n But regular feedback is a different question, especially where the downstream \u201csecond guess\u201d actually constitutes a \u201cgood catch<\/a>.\u201d<\/p>\n There is nothing wrong with \u201csecond guessing\u201d where it helps you to \u201csecond guess\u201d yourself <\/em>before you act the next time.<\/p>\n Next time a Kalief Browder comes along, you might \u201cstop the line,\u201d<\/a> and feel very proud that you knew enough to do so.<\/p>\n We have models to draw on for mobilizing the lessons of mistaken releases and wrongful convictions. For example, either a wrongful conviction<\/a> or a mistaken release<\/a> would yield lessons to an all-stakeholders, forward-looking \u201csentinel events review<\/a>\u201d derived from the medical tradition.<\/p>\n But we should be working to make the lessons available as regular, routine feedback to the people involved in cases. We should help them to \u201cown\u201d their performances and to reckon with their consequences.<\/p>\n We should allow them to learn and to grow\u2014to feel that they will do better this time than they did the last time.<\/p>\n The memoirs of cops, prosecutors, defenders, and other criminal justice practitioners are filled with warnings about \u201cburn-out\u201d, which is seen as an endemic threat\u2014as a wound inflicted on the protagonists by their scarifying environment.<\/p>\nBurying Criminal System Errors<\/strong><\/h4>\n
Don\u2019t Look Back<\/strong><\/h4>\n
We Don\u2019t Need (Or Want) To Know<\/strong><\/h4>\n
\u201cLearning\u201d from Willie Horton, But Not From Kalief Browder<\/strong><\/h4>\n
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