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Abstract
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Available:
https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2869&context=lawreview
[SafetyLit note: If readers outside the field of law can get beyond the intricacies of the Blue Book citation style, the enlightening footnotes alone are worth examining.]
... Safety is something everyone wants: for their communities, for their families, and for themselves. It is valued by both the community and the criminal justice professionals across all of the criminal justice "silos." Safety-oriented reviews will support an ongoing collaborative practice of questioning, explaining, and exploring. If they are conducted by diverse professional and community stakeholders as equals, all working to make things safe, over time we can expect important learning, but we can also hope for healing.
... Criminal justice in the United States is primarily a state and local enterprise and most (if not all) states and localities have experienced some disturbing outcomes. The innocent are wrongly convicted while the real perpetrators go free; dangerous prisoners are mistakenly released and then kill again; avoidable "suicide-by-cop" fatalities traumatize families and front-line police. Beneath these front page spectacles a submerged universe of coerced misdemeanor plea bargains, protracted pretrial detentions, failed re-entry plans, fruitless street stops, "near-misses," declining "closure rates" and "high frequency, low impact" events of all kinds erode public security and trust in the law.
Could these disasters serve as local "Public Safety Chernobyls" and lead toward forward-looking reforms? Can we develop "Criminal Justice Safety Centers" and build the capacity—one that is now strikingly lacking—to analyze criminal justice disasters collaboratively and learn their lessons, insulated from litigation's unpredictable cross-currents of liability, immunity, indemnification, and reciprocal blaming?
Discussions of contemporary American criminal justice do not suffer from any shortage of Models. Herbert Packer set the ball rolling by describing his opposing Crime Control and Due Process Models [HL Packer, The limits of the criminal justice sanction (1968). Stanford, California, USA: Stanford University Press. pp 150-163]. John Griffths deployed a Family Model to show that Packer's two polar ideologies are really variant versions of a single, unified Battle Model [J Griffiths, Ideology in Criminal Procedure or a Third "Model" of the Criminal Process, Yale Law J 79: 359-360 (1970).] In the aftermath of the DNA exoneration cases Innocence Movement scholars such as Keith Findley and Marvin Zalman have attempted to point out to partisans for one or the other of Packer's Models that some version of a Reliability Model or Integrated Justice Model, focusing on factual accuracy, could present a win/win option that simultaneously protects the innocent and targets the actually guilty, whom wrongful convictions leave free to find further victims.
Still, there is an embryonic Model that will repay our attention in the context of "wrongful acquittals," wrongful convictions, and other less spectacular miscarriages of justice. It will not function as a blueprint for organizing ideological life in the Packer manner, but it can provide a reminder that there is another—and potentially paradigm-shifting—way of looking at things.
The last decade has seen a growing interest in a criminal justice orientation derived from a deep reservoir of literature and experience that high-risk fields such as aviation and medicine have tapped to develop "cultures of safety." The fact that safety concepts are so easily borrowed from other fields probably explains why there have been few efforts to denominate an explicit "Safety Model" in criminal justice. But by now it is easy to list books, articles, and compilations that introduce the basic safety concepts to criminal justice practice communities. The National Institute of Justice (NIJ), has given this interest practical form through its "Sentinel Events Initiative" by conducting a sustained investigation of the potential for mobilizing safety thinking in non-blaming, all-stakeholders, "forward-looking" learning reviews after unexpected justice events.
The safety at issue here is everyone's safety: the safety of crime victims, defendants, and communities—even the safety of law enforcement personnel21 and legal system practitioners. This wider safety perspective escapes the zero-sum ideology of the Crime Control versus Due Process dialectic in which anything protecting an individual's rights automatically threatens potential crime victims to an equal extent. It recognizes the impact of iatrogenic ("from the treatment") injury inflicted by hyper-aggressive "stop, question, and frisk" programs, re-traumatizing victim interviews, mass incarceration,24 and other interventions, and requires that those harms be weighed in the balance before making criminal justice choices, not deferred to be deplored at some later date. It throws a new light on familiar challenges; examining events in that light reveals opportunities. Familiarity with an emerging Safety Model can improve practice, and may fuel transformation.
At the core of this potential Model is a distinctive etiology— manner of causation—of errors such as mistaken releases and wrongful convictions. It discounts single-cause explanations that focus on a lone practitioner (e.g., a lab technician, or trial prosecutor, or ineffective defender) or a defective component (e.g., a non-blind lineup or faulty forensic technique).
Safety commentators in aviation, medicine, and other high-risk fields would argue that like the space shuttle Challenger launch decision, a "wrong patient" surgery, or the Chernobyl meltdown, wrongful convictions and mistaken releases are system errors: "organizational accidents." In this conception, miscarriages of justice result from small mistakes and decisions—none of which are independently sufficient to cause the event—that combine with each other and with latent system weaknesses, which only then cause harm ...
Available:
https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2869&context=lawreview |