Since The Constitution Project’s inception, we have consistently called upon decision-makers to address the underlying conditions causing errors in our criminal justice system and to institute needed reforms. As TCP’s Death Penalty Committee’s recently released report on the death penalty, Irreversible Error, explains, “When the criminal justice system fails in its most critical function – convicting the guilty and exonerating the innocent – the government should step in to determine the causes of the failure and identify appropriate reforms.” And we have always been careful to acknowledge that remedying errors in individual cases is paramount – ours is a system of justice, comprised of many working parts. Rarely, is one single individual actor to blame.
Now, the Department of Justice is introducing a promising new test program that is designed to support systemic changes to the criminal justice system. Two years ago, the National Institute of Justice (NIJ), the research agency of the Department of Justice, began to examine how to develop a process that would analyze mistakes in the criminal justice system in a way to better prevent errors from occurring in the future. The NIJ observed that the similar errors were repeating across the country and that the current reforms were not adequately providing solutions. The NIJ hypothesized that the system’s inadequacies were not caused by structural defects but, rather, by the underlying cultural influences that pressure individuals into making a series of individual mistakes that collectively lead to organizational errors. The problem the NIJ discovered was that the criminal justice system does not lend itself to an honest self-evaluation, as the Attorney General notes, “Practitioners in an adversarial system that probes, refutes, and defends do not, in general, concede fault readily.” The NIJ’s challenge was to develop a blame-free process that would allow for open and honest evaluation of errors that would uncover the underlying precursors that cause the mistakes.
The NIJ discovered the framework for such a process by looking to other high-risk enterprises, such as medicine and aviation. Medical professionals have changed the way they review hospital errors (unexpected deaths, surgeries performed on the wrong patient, wrong medication given to a patient, etc.). Medical reformers realized that one person alone could not be to blame for an error. Rather, throughout the process, from the first nurse who misidentified the wrong patient, to the surgeon who performed the operation, each person contributed to the organizational error. Reformers came to believe these errors were caused by the underlying pressures (overworked practitioners, overcrowded and underfunded facilities, undertrained and unorganized staffing, etc.) that influenced individuals’ actions. In response, they created a system of blame-free reviews, which focused on reducing future risks, by addressing the influences that drove individuals’ actions.
The question presented is whether a similar process can be adapted to the criminal justice system when, for example, a person is wrongfully convicted or when a guilty, dangerous individual goes free. This question is the foundation for the NIJ’s special report “Mending Justice: Sentinel Event Reviews.” Under this framework, a “sentinel event” is identified, which is any kind of identifiable error that should not happen again in the future. The NIJ labeled these events “sentinel” because as James Doyle, primary author of the report, suggests, “Sentinels stand watch. They are the first to see threats and they sound a warning before those threats can do harm.” This label demonstrates that the process focuses on seeing the sentinel event in a forward – looking lens. A sentinel event review shifts away from individual accountability – or the “blame game” – which has traditionally sought to hold individuals accountable, but fails to effectuate systemic change because rarely is one individual at fault. The process focuses on creating an open and honest environment, encouraging disclosure and analysis of errors.
In April 2014, the NIJ selected three jurisdictions, Milwaukee, Philadelphia and Baltimore, to serve as “beta” pilot sites to test the viability of the sentinel event program. The process calls for the creation of sentinel review teams, consisting of stakeholders (judges, prosecutors, defense attorneys, policy makers, victims, etc.) – i.e. individuals directly involved in, and affected by, our criminal justice system. Their job is to identify the sentinel events for review. Rather than merely identifying defects, the goal of the review is to understand the process by which defects are created, so that changes to the pressures that trigger sentinel events can be made.
Similar to the medical industry, no one error in criminal justice can solely be attributed to one individual. For instance, the NIJ cites the example of a prosecutor who withholds evidence from the defense. There is no doubt the prosecutor is culpable and should be individually punished. But the prosecutor is just one person in the criminal justice process. Just as the nurses or doctors who fail to prevent a surgeon from operating on the wrong patient, the police and defense attorneys have a role in correcting errors along the process. NIJ describes the culmination of individual mistakes as an organizational error. A sentinel event review identifies the underlying pressures, such a political or managerial pressures to close a case or find a suspect, that the prosecutor faces. The review team will apply a similar analysis to all the actors in the process. Once the underlying pressures are defined, reform can focus on addressing those issues so that they will not be a contributor to poor outcomes in the future.
TCP is very interested in the results of these pilot programs. However, as the NIJ implies, there is no guarantee that this program will be successful. The program must overcome some stakeholders’ fears over potential liability for exposing mistakes to the public. The program will take time to grow and there must be realistic expectations that substantial change will not occur overnight. And, of course, in some instances, holding individual actors accountable for their actions is critical to the public’s assurance that our criminal justice system operates with integrity and accuracy.
But sentinel event reviews have, in fact, garnered the support of many stakeholders as evidenced by the commentaries found in the NIJ report from prosecutors, defenders, crime victims, and others. The program’s blame-free forward-looking approach has many benefits and such a novel approach by the federal government to bring systemic reform to our criminal justice system is a tremendously positive step in the right direction.