Exoneration Review Commission To-Do List Part 2: Consider the Sentinel Event Literature

In my second post boldly offering my views for a path forward to members of the newly activated Timothy Cole Exoneration Review Commission, I'll expand on the brief suggestion made in my first post, that the TCERC take a "systems approach" to its work.

It's worth starting off with a brief caveat about my motivations here.  I'm not a member or an adviser to the TCERC, and so I've no particular standing to weigh in, nor reason to think that my idiosyncratic views will have traction in the entity's deliberations.  Part of the impetus to comment on the work that the TCERC is beginning, however, is that its efforts connect to a broader national trend toward establishing criminal justice review commissions, as well as a broader conversation among practitioners and academics about the optimal design of those commissions.  (The New Yorker recently featured an illuminating account of the trend and related conversation.)   So the TCERC is poised to do work of relevance to those national actors, some of whom I hope will take notice of and follow the TCERC's work . . . even if the TCERC itself takes little interest in my armchair commentary on its mission.

In those national debates, the concept of the Sentinel Event has been a critical organizing principle for (re)envisioning ex-post review of criminal justice error.  The term has been used in other high-risk industries - aeronautics and medical care, for example - to describe a negative outcome that signals weaknesses in systems or processes, and that if properly understood can be utilized to diagnose and prevent future failures.  The imperative of moving from the negative outcome to systemic understanding of its causes is the key priority animating Sentinel Event Review ("SER") in these industries.  That is to say, the manner in which an organization responds to error should be tailored to maximize understanding of how that error emerged from the structural, organizational contexts in which it arose.  For proponents of Sentinel Event Review, that premise generates some key principles:

• Review processes must involve all stakeholders;
• Review processes should be forward-looking;
• Review processes should not blaming devices;
• Review processes should instantiate a shared culture of accountability and disclosure, and should enjoy confidentiality to facilitate that goal.

In recent years, enterprising folks have begun to consider whether the concept of SER could successfully migrate to the criminal justice system - arguably another high-risk industry where error is almost always a product of complex organizational and systemic processes. (Note, the applicability is far broader than wrongful conviction review.  Police-involved shootings, the commission of a crime following a discretionary release decision, or a near-miss such as a Brady error discovered mid-trial, are all potential "sentinel events.")  The allure, in the eyes of proponents, is in SER's ability to move past the limitations of an adversary frame to error identification and correction - limitations created by legal doctrine, and political entrenchment and mistrust, among other factors.

The National Institute of Justice has devoted multiple years of study, and, recently, a healthy chunk of grant money, to the question.  And a number of real, live criminal justice organizations have operationalized the approach.  For example, the New York Justice Task Force, New York's own criminal justice review commission, recently adopted a resolution urging that organizational-level and inter-organizational level Sentinel Event Review processes be adopted.  In a somewhat different context, Milwaukee, Wisconsin (led by District Attorney and Sentinel Event Review proponent John Chisolm) has adopted Sentinel Event Review principles in its Homicide Review Commission.

There are criticisms, to be sure.  For some, the principle of removing blame from the review process will be a bug rather than a feature of the approach.  Sentinel Event Review is not, at bottom, an "accountability" process - except insofar as accountability is posited as mutually shared.  For others, the notion that a process could be truly collaborative, that the adversarialism of the justice system and its political underpinnings could be siphoned from review, is fantastical.  And some might be concerned that confidentiality of review processes is too high a price to pay for the speculative benefit of fostering stakeholder disclosure and collaboration.

Interestingly, however, the statutory design of the TCERC suggests that at least some principles of SER are embedded, as it were, in its DNA.  (This might not be accidental.  The sponsor of the legislation, Senator Rodney Ellis, is a long-time member of the National Innocence Project's Board of Directors, and representatives from the IP have been hip to and connected with Sentinel Event work for some time now.)  House Bill 48, which created the TCERC, is future-oriented (review is aimed at generating recommendations, per Sec. 8(a)), and requires membership from an array of criminal justice stakeholders and contemplates wide consultation from non-member segments of the criminal justice community (See Sec. 8(b)).  Indeed, the statute permits the TCERC to obtain information from any state entity, an authorization of appropriate breadth in systems-based review since it is not far-fetched to imagine that, inter alia, Family and Protective Services, mental health agencies, and other non-criminal-justice social services entities would bring relevant information to the table in a conversation about how a wrongful conviction occurred.  Most critically from the standpoint of SER design, the working papers of the TCERC are confidential (Sec. 8(d)), a major exemption from Texas's relatively broad open records provisions, and an important one if the premises of maximum disclosure and minimum blame are built into the Commission's mission.

So I would suggest that Sentinel Event Review is possible in Texas.  It might even have been intended by the legislature.  But perhaps the more overarching point is that an entity that has been established to generate an empirically informed understanding of best (or better) criminal justice practices should conduct its own work in a manner that is informed by an emerging understanding of best (or better) criminal justice review practices.  In recent years, Sentinel Event Review has emerged as a leading candidate for that status.  At a minimum, it should be on the radar screen of TCERC members, and the TCERC should be on the radar screen of SER aficionados.