A more perfect criminal justice system

Text by Greg Johnson

America’s system of criminal justice is supposed to be equal, exact, and colorblind, but it is not without its flaws. Created by human beings, it is at the mercy of human error, usually made in good faith, although occasionally with ill intent.

Quattrone Center
Penn Law opened the Quattrone Center for the Fair Administration of Justice in 2013 with a core mission of improving accuracy in the criminal justice sytem. Photo by Penn Law School

America’s system of criminal justice is supposed to be equal, exact, and colorblind, but it is not without its flaws. Created by human beings, it is at the mercy of human error, usually made in good faith, although occasionally with ill intent.

The National Registry of Exonerations maintains a list of nearly 1,500 people who were wrongly convicted of a crime and later cleared of all charges. The Registry catalogs exonerations only since 1989, leaving potentially thousands of other innocent people languishing in prison while the truly guilty roam scot-free.

In order to build a more perfect criminal justice system, Penn Law School opened the Quattrone Center for the Fair Administration of Justice in August of 2013 with a core mission of taking a systematic approach to improving accuracy. The Center was established by a $15 million gift from the Frank and Denise Quattrone Foundation.

John F. Hollway, an associate dean at Penn Law and executive director of the Quattrone Center, says its overall goal is to reduce errors in the administration of criminal justice.

Instead of a conventional litigation-based approach, he says the Center is “taking a step back and looking at the criminal justice system as a system,” and utilizing evaluation and problem-solving tools from other complex, zero-tolerance-for-error industries like aviation and health care.

Quattrone Center
Penn Law opened the Quattrone Center for the Fair Administration of Justice in 2013 with a core mission of improving accuracy in the criminal justice sytem. Photo by Penn Law School

“At the end of the day, criminal justice is a system where everybody has the same goal, which is to get the right guy in the right way, and to hold perpetrators of crime accountable for their actions in ways that preserve our constitutional rights,” Hollway says. “We’re looking to make sure the system does that every time.”

Errors in the criminal justice system are defined broadly, and include wrongful convictions resulting from perjured testimony or false confessions, eyewitnesses identifying the wrong suspect, underfunded and inefficient defense lawyers failing to investigate leads or pushing their clients to plead guilty, prosecutors withholding exculpatory evidence, or defendants who cannot make bail and plead guilty in order to be released in exchange for time served.

“The possible ways we can find error is limited only by the number of people interacting in the system,” Hollway says. “There are lots of things that can go wrong.”

Most of the errors are accidental and result from multifactorial mistakes made by hardworking people acting with sincerity and performing their civic duties to the best of their ability.

“Police don’t go into the game to frame innocent people—except in the movies or novels,” says Stephanos Bibas, a professor of law and criminology at Penn Law and an affiliated faculty member at the Quattrone Center. “Prosecutors don’t set out for it; they want to be the guys in the white hats, and yet somehow there are these horrible injustices.”

Bibas, a former federal prosecutor, says that when he was in law school in the early 1990s, when DNA evidence was in its infancy, it was still possible to believe that the criminal justice system punished the right people in the overwhelming majority of cases, with only a scant number of wrongful convictions. He says the growing number of false convictions has “shaken the faith of a lot of people in what we all assumed was the accuracy of the criminal justice system.

“It’s probably a small minority of cases in the system, but if it’s a few percent or a fraction of a percent, that’s still tens of thousands of cases,” Bibas says. “Our system processes millions of cases a year.”

The absolute number of wrongful convictions is impossible to quantify due to the fact that only about 3 percent of cases go to trial. Ninety-five to 97 percent of cases are resolved by plea-bargaining.

Scholars have examined race in the criminal justice system, mass incarceration, and the War on Drugs, and organizations like The Innocence Project are confronting wrongful convictions on a case-by-case basis, but Bibas and Hollway say the Quattrone Center is breaking new ground by focusing on how to correct broad-scale, systemic-level issues rather than litigating a case at a time.

“Litigation is useful for redressing a past wrong, but it’s not a very useful tool for preventing a wrong that hasn’t happened yet,” Hollway says.

The aviation industry attacked the problem of errors in the 1970s after a number of airplane crashes, and the health care industry followed suit in the 1990s. Hollway says the criminal justice system has not undergone a similar assessment because there have not been catastrophic errors that compel a top-to-bottom review of the entire  process.

“In aviation, when there’s a plane crash, everybody knows about it,” he says. “In criminal justice, when the wrong person gets convicted, that can take years or decades for us to figure out and unravel.”

The Center is drawing upon experts from a variety of disciplines to produce some of the basic, primary research for the nascent field.

In addition to Penn Law’s Bibas and Senior Fellow David Rudovsky, one of the nation’s leading civil rights and criminal defense attorneys, the Quattrone Center’s affiliated faculty includes members from the Department of Criminology in the School of Arts & Sciences, the Perelman School of Medicine, and the School of Nursing.

“We’re engaged with a lot of folks who are experts in organizational management or behavioral psychology or sociology that have been trained on quality improvements and systems improvements and safety improvements in these other fields,” Hollway says. “It’s really fascinating to watch them come in and look at criminal justice and realize just how translatable the knowledge is.”

Hollway says there has been encouraging adoption of the Center’s research and findings. The Center is partnering with the Montgomery County District Attorney’s Office to improve professional standards and is working with public defenders in San Francisco on ways to modify plea bargain practices to reduce errors.

He says the Center would like to implement new processes in criminal justice offices around the country and have district attorneys and public defenders use them in their offices.

There is universal agreement about the importance of ensuring accuracy in the criminal justice system, and Hollway says the Center is trying to help each part of the system
function the way it was intended, and to its highest optimization.

“Sometimes the system gets there and sometimes we fall a little short,” he says. “But the consequences of any one failure are pretty substantial. I think we owe it to our communities to set the bar at perfection and work from there.”

Originally published on .