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The criminal justice system needs to start learning from its mistakes

by Mike Nerheim and Meg Reiss, opinion contributors - 11/18/17 11:20 AM ET

Safety-oriented professions try to protect against worst-case scenario.

When the worst case becomes reality they call it a “sentinel event.” It’s a significant, unexpected, adverse outcome, or “near miss,” which is likely indicative of weaknesses in systems and processes. The concept is employed in safety-oriented professions, such as medicine and aviation, to refer to rare disasters or near-disasters such as plane crashes, blood transfusion errors, operating on the wrong patient or sending a baby home with the wrong parents.

{mosads}Sentinel events also occur within our criminal justice system. Wrongful convictions are examples, and it often takes decades to discover and correct the mistake.

Take the case of Earl Washington. Washington was 22-years-old with an I.Q. of 69 when he was sentenced to death for rape and murder. He spent over 17 years in prison. At one point, he was nine days away from planned execution. Years later, post-conviction DNA testing revealed that he was not involved in the crime. Then 37 — with 17 years of his life spent behind bars facing imminent death — Washington was exonerated, and another man confessed to the crime.

Serving 17 years for a wrongful conviction while the real killer goes free constitutes a substantial loss of life and points to deep-rooted weaknesses in our justice system. And Washington’s case is not uncommon.

The National Registry of Exonerations cites 166 exonerations in 2016 alone, approximately 10 percent were based in whole or in part on DNA identification evidence.

It is incredibly difficult to prove wrongful convictions in cases where DNA evidence is non-existent or not relevant, and resources for uncovering wrongful convictions are scarce, provoking the question of how many of the 2.2 million people currently incarcerated should be there.

In medicine, aviation, and other high-risk enterprises, it is common practice to conduct “sentinel event reviews” when these extreme tragedies occur.

As sentinel events often result from minor, but compounded errors from multiple actors, reviewing them involves convening all involved parties to comprehensively analyze why and how the event happened. In addition to conducting a wide-ranging analysis of relevant systems and processes, participants work towards a corrective action plan: solutions that would strengthen the system and prevent similar events from occurring in the future. The goal is not to assign blame but rather to foster forward-looking, collective accountability.

But our criminal justice system lacks accountability mechanisms for improving systems and avoiding future wrongdoing. As Jim Doyle, a fellow at the National Institute of Justice explains, “DNA exonerations of wrongfully convicted defendants have thrown new light on the problem of error in criminal justice, revealing a gap in our system’s design.”

Wrongful convictions threaten public trust in justice and undermine system legitimacy, which is already compromised or non-existent in many communities most directly impacted by the criminal justice system.

Building confidence in our criminal justice system requires both consistency of processes and accountability when errors occur. Just as hospitals are distressed by the prospect of operating on the wrong patient, criminal justice practitioners ought to be haunted by a wrongful conviction.

As democratically elected officials, prosecutors’ legitimacy is premised on public trust. Although they are tasked with holding people accountable, they are rarely held accountable themselves; 85 percent of prosecutors run unopposed, according to a 2015 study by the Reflective Democracy Campaign.

In order to actively build public trust and foster public safety, prosecutors should scrutinize existing systems that allow any wrongdoing or practice to occur — from “harmless errors” to “near misses” and “good catches,” to mistaken releases and wrongful convictions — and support implementing processes and procedures that enhance transparency of and accountability for their decisions.

As the State Attorney for Lake County, Illinois, we have implemented policies that work to protect the rights of the accused while holding my jurisdiction responsible for serious mistakes. My office created a Case Review Panel and Prosecution Protocol and Conviction Review Unit, which reviews the legitimate extra judicial, post-conviction claims of innocence as well as the root causes of wrongful convictions.

The post-conviction review boards, comprised of diverse stakeholders including community, law enforcement, government stakeholders and crime survivors, were implemented in response to the high incidence of miscarriages of justice in the district prior to my taking office.

Angel Gonzalez represents one case. Gonzalez was 20 years old when he was convicted of rape and kidnapping. It took less than a year for prosecutors to successfully bring charges and secure a conviction, resulting in a 40-year prison sentence.

It took 20 years to prove his innocence and secure his exoneration. In 2012, we agreed to retest the DNA. The testing revealed that Gonzales’ DNA was not present in the rape kit. The Innocence Project picked up his case and conducted additional testing that excluded Gonzalez’s involvement. In 2015, the conviction was vacated. We apologized for Gonzalez’s wrongful conviction.

The notion of prosecutor-convened reviews aligns with the National Institute of Justice Sentinel Events Initiative, which seeks to “empower local communities to conduct collaborative reviews of justice system failings, with the goal of understanding system causes, mitigating risk, and preventing reoccurrence of negative outcomes at the local level.”

Beginning in January of next year, National Institute of Justice will collaborate with the Quattrone Center to support and provide technical assistance to 20 sites implementing sentinel events reviews.

By committing their offices to full participation in sentinel event reviews, and adopting the review process as standard procedure, prosecutors have an opportunity to build a more just system, strengthen trust in the intent and effectiveness of the legal system, and, ultimately, enhance legitimacy, accountability, safety and fairness.