System failure.

• Author: Luna, Erik
• Position: Criminal justice

The release of an innocent person from prison has become a recurring public event, varying only by the facts of the case and the apparent cause of wrongful conviction. (1) Sometimes the underlying problem is official misconduct; occasionally the issue is one of false confession; and still other times mistaken identification is to blame. In his historic commutation address, then-Illinois Governor George Ryan mentioned a number of explanations as to why totally innocent men ended up on death row in his state. (2) Likewise, the Cardozo Innocence Project has listed a series of seemingly disparate factors leading to wrongful convictions in the first seventy exonerations by DNA testing. (3) As Cardozo's Peter Neufeld and Barry Scheck note in their book, Actual Innocence: "Sometimes eyewitnesses make mistakes. Snitches tell lies. Confessions are coerced or fabricated. Racism trumps truth. Lab tests are rigged. Defense lawyers sleep. Prosecutors lie." (4) Taken individually, each case of actual innocence appears as a troubling yet unique snapshot of error in criminal justice, and each cause of wrongful convictions looks like a singular pinprick against the backdrop of an otherwise accurate process. (5)

But by examining individual cases or specific practices in isolation, the focus of any inquiry tends to be equally narrow and discrete. To use a trite yet apt phrase, we may lose the forest for the trees. The problem of imprisoned innocents is not one of bad identifications, coerced confessions, Brady violations, (6) or any specific factor--but all of these issues and many others at once, effected by a wide range of actors and producing a systemic failure in criminal justice. As Governor Ryan asked, "How many more cases of wrongful convictions have to occur before we can all agree that the system is broken?" (7) Although this rhetorical question would seem to answer itself, a full response might require a view of the criminal justice "system" as more than a figure of speech. For such an endeavor, I would like to suggest an approach familiar in many scientific disciplines yet largely foreign to legal studies: the field of general systems theory. To be clear from the outset, my very limited goal in the context of a short symposium contribution is to provoke discussion about the often insular analysis of the criminal process. (8) Neither general systems theory nor anything like it will magically solve all that ails criminal justice today. (9) Nonetheless, the systems approach may force further consideration of criminal justice in its entirety, and if nothing else, it may shed some light on wrongful convictions as a concern throughout the stages of crime and punishment.

Originally devised in the early--to mid-twentieth century by, among others, biologist Ludwig von Bertalanffy, (10) general systems theory is the interdisciplinary study of all forms of complex, organized entities (i.e., "systems"), to determine common features of their ordering. (11) It is, in other words, an attempt to establish general principles that apply to each and every system, whether it is a microscopic organism or a financial market. The systems approach arose as a challenge to the reductive method of linear reasoning in classical science and an effort to transcend the traditional borders between ostensibly detached disciplines, from molecular chemistry and cellular biology to global ecology and astrophysics. "There are many instances where identical principles were discovered several times," von Bertalanffy noted, "because the workers in one field were unaware that the theoretical structure required was already well developed in some other field." (12)

As might be expected given the theory's title, the central theme is the concept of a system, generally described as a set of interrelated, interacting, and interdependent parts, with the organization among the parts composing a unified entity. (13) On at least some level, criminal justice seems to have the attributes of a system, composed of numerous differentiated parts--police, prosecutors, defense attorneys, judges, et cetera--all serving individual functions that are nevertheless interrelated and interacting with one another, forming a cognizable whole with any number of emergent properties, (14) not least of which is the power to deprive liberty with the imprimatur of the state. The system contains a degree of hierarchical differentiation, such as the various levels of appellate and collateral review of trial court decisions, while each part may be seen as a purposeful subsystem, from the investigation of crime by law enforcement to the determination of guilt by a jury. In the end, each subsystem is supposed to serve the goals of the criminal justice system as a whole, often measured from an input-output perspective, with the most prominent objective being the production of accurate outcomes by convicting the guilty and acquitting the innocent. (15)

Criminal justice is not all-encompassing, however, as an entire universe of social interactions and other systems (e.g., tort and contract) exists beyond its boundaries. The criminal justice system interacts with its environment in an open fashion and receives numerous inputs, including: resources to be expended throughout the system or by particular components; details regarding an offense and alleged offenders via witness statements and forensic analysis; and, of course, the defendants who are processed through the system. Information is coded into a specialized language for use by criminal justice actors--verbal communications between police and suspects may be categorized as "confessions," for example, and a defendant's in-court declaration on culpability may be labeled a "plea." The outputs are also numerous, although the most notable result comes in the form of a binary judgment about a particular individual and event: a verdict of guilty or not guilty for the charged crime(s), with the former conclusion usually necessitating punishment of the now-convicted defendant.

To be sure, criminal justice can be profoundly affected by the environment in which it exists--from large scale disturbances, like booms and busts of the national economy, to changes at the level of individual decisionmaking, such as policies instituted by a freshly elected district attorney or recently installed police chief. Moreover, the system has the ability to adjust to new circumstances; since the 1966 decision in Miranda v. Arizona, (16) for instance, law enforcement officials have conformed their behavior to the Supreme Court's dictates on custodial interrogation. (17) Similar modifications have occurred with the recognition of other criminal procedure guarantees (e.g., the right to counsel for indigent defendants (18)), as well as scientific advances in modern forensic analysis and the invention of new police gear. In each case, the criminal justice system and its actors have adjusted to change, oftentimes for the better. Using the language of systems theory, criminal justice maintains a number of feedback loops that attempt to keep the process in some form of equilibrium; appellate tribunals review lower court decisions that then affect prospective criminal trials, for example, and the exclusionary rule shapes the future conduct of law enforcement.

If the criminal justice system were a machine and wrongful convictions the result of a broken part, we might disassemble the contraption and spread out its pieces on the floor in search of the malfunctioning component (and if all else failed, we could just exchange the system for a new one). Despite any appearance of mechanistic performance, however, criminal justice is an inherently human process, created and controlled by humans, affecting humans, and subject to the inhibitions of human cognition, sentiment, and behavior. To fully appreciate the human dimensions of criminal justice as a system and the repercussions for innocent individuals, some additional concepts would have to be incorporated into any systems analysis. (19) The first is discretion, a phrase that may generally be described as the power to choose between two or more courses of conduct. (20) A criminal justice actor has discretion when the margins of his authority provide latitude to freely choose how to act (or not act). Discretion within the criminal process necessarily implicates discrimination, broadly defined as "the process by which two stimuli differing in some aspect are responded to differently." (21) So understood, we discriminate all the time in making choices in our daily lives--like what to eat for breakfast or what show to watch on television--but on serious matters, discrimination assumes a sober and often severe character, particularly when life or death is on the line.

Neither concept, in and of itself, is always an undesirable aspect of the legal process. Discretion might be regarded as a tool to deal with the limits of language in the face of unforeseeable diversity of fact, as seen in the endless range of criminal cases. It may well be that a prosecutor's decisions to charge murder in one homicide and manslaughter in another, for example, are wholly justifiable on the facts of the relevant crimes and alleged criminals. Discretion becomes malignant in a criminal justice system, however, when the basis for discriminating among cases fits the literal meaning of "prejudice," a preconceived judgment without valid justification or sufficient information, such as when a defendant faces capital punishment not because of the gravity of the offense or the malice of the offender, but due to the race and/or socio-economic class of the assailant or victim. (22)

These forms of discretion and discrimination thereby contribute to human error, an essential concept when considering wrongful convictions. In this context, error refers to factually incorrect decisions from the position of omniscience, a perspective of complete and perfect...