Academic journal article Albany Law Review

Orwell's Elephant and the Etiology of Wrongful Convictions

Academic journal article Albany Law Review

Orwell's Elephant and the Etiology of Wrongful Convictions

Article excerpt

"And afterwards I was very glad that the coolie had been killed; it put me legally in the right and it gave me a sufficient pretext for shooting the elephant. I often wondered whether any of the others grasped that I had done it solely to avoid looking a fool.

--Shooting an Elephant, George Orwell

Criminal justice reform is having its moment. The gatekeepers around the public square--the editors, the publishers, the producers, the bloggers, and the "most-followed" social media posters--have decided to grant criminal justice issues some attention.

In the accompanying wave of punditry familiar facts are treated as discoveries. The system's impacts are racially biased. (2) The innocent are often convicted. (3) Unwarranted law enforcement violence is common. (4) Legions of unnecessary prisoners fill our prisons. (5) Chronic mental illness has been effectively criminalized. (6)

This media moment will fade; these media moments always do fade. Can something useful be left behind?

The criminal justice system is a target-rich environment for empirical study. Many factors await data-oriented examination in (and around) our courtrooms, and it seems natural to seize this opening to mobilize evidence-based inquiries analyzing a range of specific questions. As Michael Jacobson has noted, criminal justice policy is "a field that over the last several decades has been almost immune to evidence and knowledge in the face of its overwhelming politicization." (7) Perhaps in this new atmosphere we are ready to learn the lessons that the data teach.

Still, any exclusively data-oriented approach to wrongful convictions will face challenges as a remedial tool where preventing wrongful convictions is concerned.

No individual evidence-based exploration of the criminal justice system is likely to minimize the frequency of miscarriages of justice unless it takes place within a general etiology of wrongful conviction that recognizes the reciprocal impacts of the system's components--including its human components--on each other, and the impact on those system components of their surrounding environment.

The potential implications of that general etiology--that is, of the manner of causation of criminal justice system errors--are overlooked issues.

A version of such an etiology is available for adaptation. (8) Safety experts in aviation, medicine, and other high-risk fields would argue that, like the Challenger launch decision, (9) a "wrong patient" surgery, (10) or the Chernobyl meltdown, (11) wrongful convictions are system (12) errors: "organizational accidents." (13) In this conception, miscarriages of justice are not single-cause events but, rather, result from discrete, small mistakes, none of which is independently sufficient to cause the harm that combine with each other and with latent system weaknesses, and only then cause a tragedy.

Miscarriages of justice can never be fully explained by the failures of a single component or a lone operator. The right answer to the question "Who was responsible for this wrongful conviction?" is usually "Everyone involved, to one degree or another," either by making an error or by failing to anticipate or intercept someone else's error. In this view "everyone" includes actors far from the scene of the event who set the budgets, did the hiring, wrote the laws, developed the jurisprudence, and designed the incentives for the apparent culprits on the frontlines. "Everyone" includes those who created the environment in which the sharp-end actors operated. "Everyone" even takes account of the contributions of individuals who stood by inattentively while the frontline environment was shaped by others.

The hardest case for this approach is presented by the recurrent situation in which the miscarriage of justice seems to have resulted from a moral failure--often a spectacular one--on the part of an individual criminal justice actor. …

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