In Criminal Justice, “Simple” Solutions Are Usually Wrong

Simple Crime Solutions

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 contributingcitizens. 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.

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