"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. Even people who accept the organizational accident explanation as a general theory resist applying it to those events.
For example, when a prosecutor hides exculpatory Brady (14) material, that act is a proximate cause of a miscarriage of justice even if it is not the sole cause, and there is little interest in widening the lens to account for other factors. (15) Disciplining the individual actor seems to be both a sufficient response and an emergency. To give attention to other considerations in these cases seems, to many, to threaten to introduce complication and ambiguity where stark moral clarity is demanded: to generate bogus extenuation where all that is required is a plain statement of culpability.
The assumption, "Good man, good result," once formed the basis of medicine's attitude towards its own tragic failures. (16) Even now it characterizes much of the commentary on wrongful convictions. (17) A similar dependence on good men, (18) and therefore on reform strategies focused on the discovery, denunciation, and excision of the bad men, characterizes criminal justice reform discourse. (19)
But if wrongful convictions are "organizational accidents," can disciplining and punishing an individual be enough to reduce future risk? Can we punish our way to safe verdicts? Is there a way to balance accountability for misconduct and the non-blaming, "forward-looking accountability" (20) we need in order to minimize future risk? Should we be searching for a new practice rather than a new structure? Can we develop a vehicle for holding the data-rich statistical findings and the complex individual narratives in permanent productive tension?
A famous essay of George Orwell's, "Shooting an Elephant," focuses on an individual's moral failure: on the bad choice of an actor who zigged when he should have zagged, and who fully understood that he was doing the wrong thing as he acted. (21) Orwell's narrative might illuminate an issue implicit in the organizational accident etiology of error: is the challenge presented by wrongful convictions one best approached as protecting a presumptively safe system from amoral and incompetent people, or one of repairing an inherently vulnerable system that necessarily relies on ordinary human beings?
George Orwell has been regarded as the quintessential "good man" for over half a century. To V.S. Pritchett, Orwell was "the wintry conscience of a generation." (22) Robert Conquest, the historian of Stalin's purges, (23) described Orwell as "[a] moral genius." (24)
In 1922, at the age of nineteen, at loose ends after leaving Eton, and unlikely to obtain a university scholarship, Orwell passed the necessary examinations and followed his father into imperial service: in Orwell's case, into the Burma Police. (25) Reflecting on that experience he produced "Shooting an Elephant," (26) first published in New Writing in 1936. (27)
"In Moulmein, in Lower Burma, I was hated by large numbers of people--the only time in my life that I have been important enough for this to happen to me," Orwell begins. (28)
[I]n an aimless, petty kind of way anti-European feeling was very bitter.... As a police officer I was an obvious target and was baited whenever it seemed safe to do so.... In the end the sneering yellow faces of young men that met me everywhere, the insults hooted after me when I was at a safe distance, got badly on my nerves. (29) By the time of the incident he describes, Orwell had "made up [his] mind that imperialism was an evil thing and the sooner [he quit his] job ... the better." (30) "Theoretically--and secretly, of course--[he] was all for the Burmese and all against their oppressors, the British." (31) But that didn't mean Orwell's immediate situation was simple. As he explains in the essay:
All I knew was that I was stuck between my hatred of the empire I served and my rage against the evil-spirited little beasts who tried to make my job impossible. With one part of my mind I thought of the British Raj as an unbreakable tyranny ... with another part I thought that the greatest joy in the world would be to drive a bayonet into a Buddhist priest's guts. (32) In this state of mind Orwell is called out to deal with a rampaging elephant: a working animal that has been maddened by "must" (heat), broken its chain, and eluded its keeper. (33) Arming himself and arriving in the quarter where the elephant had been destroying everything within reach, Orwell "failed to get any definite information.... [I]n the East; a story always sounds clear enough at a distance, but the nearer you get to the scene of events the vaguer it becomes." (34) But soon he is told that the elephant has trampled an Indian coolie to death, and he is shown the corpse. (35) Followed by a growing crowd of Burmese, Orwell tracks the animal down. (36)
As soon as I saw the elephant I knew with perfect certainty that I ought not to shoot him. It is a serious matter to shoot a working elephant--it is comparable to destroying a huge and costly piece of machinery--and obviously one ought not to do it if it can possibly be avoided. And at that distance, peacefully eating, the elephant looked no more dangerous than a cow.... Moreover, I did not in the least want to shoot him. (37) But at that moment Orwell looks around at the Burmese who had followed him: a crowd of "two thousand" people and "growing," all--according to Orwell--"happy and excited over this hit of fun, all certain that the elephant was going to be shot." (38) This was a turning point: "And suddenly I realized that I should have to shoot the elephant after all. The people expected it of me and I had got to do it; I could feel their two thousand wills pressing me forward, irresistibly." (39)
In Orwell's recounting, he zigged when he knew he should have zagged because his role required it:
A sahib has got to act like a sahib; he has got to appear resolute, to know his own mind and do definite things. To come all that way, rifle in hand, with two thousand people marching at my heels, and then to trail feebly away...