ARCP Forty-Eighth Edition Preface: Barry Scheck
The Integrity of Our Convictions: Holding Stakeholders Accountable in an Era of Criminal Justice Reform
Over the last twenty-seven years, I’ve been privileged to work with colleagues on hundreds of cases where the innocent are exonerated and, with surprising frequency, the guilty are identified. This work inevitably raises the perennial National Transportation Safety Board question the “innocence movement” has asked from the beginning: What went wrong and how do we fix it so it doesn’t happen again? Footnote #1 content: See JIM DWYER ET AL., ACTUAL INNOCENCE xx–xxi, 361 (2003). By its very nature, this is a “system” question involving multiple stakeholders that intersects with complex ethical, legal, and scientific issues. In the last decade, drawing from a rich “safety” literature in the high-risk fields of medicine and aviation, an interdisciplinary cadre of researchers and reformers have been seeking to translate some of the successful models from aviation and medicine to the criminal justice arena. Footnote #2 content: See James M. Doyle, Essay: A “Safety Model” Perspective Can Aid Diagnosis, Prevention, and Restoration After Criminal Justice Harms, 59 SANTA CLARA L. REV. (forthcoming 2019) (manuscript at 5–7). See generally Symposium, Voices from the Field: An Inter-Professional Approach to Managing Critical Information, 31 CARDOZO L. REV. 2037 (2010) [hereinafter Voices from the Field]. A rich interdisciplinary “sentinel event” literature has developed Footnote #3 content: For the latest compilation of citations, see Doyle, supra note 2 (manuscript at 6 n.20). The National Institute of Justice also has a continually updated bibliography of “sentinel event” literature. See Sentinel Events Initiative: A Compiled Bibliography, NAT’L INST. OF JUSTICE, https://www.nij.gov/topics/justicesystem/Pages/sentinel-events-bibliography.aspx [https://perma.cc/8T5S-3NQM] (last updated Mar. 13, 2019). involving “safety experts,” psychologists, and criminal justice stakeholders from practice and academia. These experts have explored everything from how to develop effective “checklists” for specific tasks to all stakeholder reviews of “near misses” and total system failures like wrongful convictions. Footnote #4 content: See Doyle, supra note 2 (manuscript at 3–25); see also New Perspectives on Brady and Other Disclosure Obligations: Report of the Working Groups on Best Practices, 31 CARDOZO L. REV. 1961, 1972–77, 2005–06, 2011–13, 2018–22, 2033 (2010) [hereinafter New Perspectives on Brady: Report of Working Groups]; Voices from the Field, supra note 2, at 2038–56, 2061–74; see also Ellen Yaroshefsky, Foreword: New Perspectives on Brady and Other Disclosure Obligations: What Really Works, 31 CARDOZO L. REV. 1943, 1943–46 (2010). The goal is to create mechanisms that help multiple stakeholders continually learn from error, investigate root causes, and develop a “non-blaming,” “just culture,” with “forward-looking accountability.” Footnote #5 content: See Doyle, supra note 2 (manuscript at 2, 14, 29–33); see also Yaroshefsky, supra note 4, at 1943–46. At the same time, however, there is no real dispute that deliberate rule breakers must be identified and appropriately sanctioned. Footnote #6 content: See Doyle, supra note 2 (manuscript at 2, 14, 29–33); see also Yaroshefsky, supra note 4, at 1943–46.
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