Monday, January 18, 2016

JOSEPH MARGULIES: Criminal Justice Must Be Organized Around Dignity, Community, and Equality

Reform and the Failure of Imagination
LINK
Blind JusticeThese are peculiar times. On the one hand, uttering the words, “criminal justice reform” is an invitation to what a friend once described as a state of heated agreement. As I have often described, and as all can see, there is an accelerating recognition that the American criminal justice system is badly broken and in desperate need of repair.
This is strange enough, given the long and enduring enthusiasm for punishment and demonization in this country. Even more curious is the satisfaction the chattering class seems to derive from declaring, again and again, how bad things have become. The declaration seems to act as a kind of penance, expiating the sin of prolonged ignorance.
And spare me the prattle about the size, cost, and moral bankruptcy of the carceral state, as though repeating it yet again, this time with feeling, will account for the energy that finally swirls around the topic. The conditions that now attract so much attention have existed for years, and cannot remotely explain the relatively sudden interest in reform.
Yet on the other hand, the gathering intensity and increasing popularity of these declarations is not matched by anything in the policy pipeline (as opposed to the research pipeline) that has the slightest chance to effect meaningful reform, let alone achieve a genuine transformation of the criminal justice system.
Indeed, as the call for change grows louder, consensus seems to coalesce around programs like the Justice Reinvestment Initiative that are least likely to achieve comprehensive change. This produces the most curious condition of all: the more people want things to be different, the more likely they are to stay the same. How can we get at the root of a paradox like that?
* * *
Criminal justice reform in the United States suffers from three, overlapping and equally serious flaws. First, as I have written before, it focuses overwhelmingly on the back end of the system—that is, on the institutions and practices that shape the lives of people who have already been convicted or sentenced to prison. The reforms that attract the most attention, especially among politicians, say almost nothing about the front end—policing, prosecution, and defense services.
Second, criminal justice reform assiduously avoids questions of race. The most widely imitated reforms in state houses across the country and the halls of the U.S. Capitol treat race and racial disparity as though they were obscenities, not to be uttered in polite conversation. The silence surrounding Black Lives Matter and other anti-police-violence movements, for instance, is deafening.
And third, reform expends nearly all its energy on the hunt for the elusive low-level, non-violent drug offender. But as I have noted elsewhere, “drug offenders represent only 20 percent of the prison population nationwide, and only a small fraction of these people are both low-level and have no history of violence. Tracking down this particular inmate is like hunting for a snark.”
Taken together, these three limitations—the refusal to address the front end of the system, the failure to confront questions of race, and the obsessive focus on a very small number of unrepresentative offenders—all but guarantee that criminal justice reform will be modest and incremental at best. Of course, even modest and incremental improvements are better than nothing. But it would be a terrible shame for this moment to pass with no more to show for it than tinkering.
These limitations represent an acute failure of imagination. Policymakers cannot or will not imagine a criminal justice world meaningfully different from the one we have created. To encourage this mental leap, I have urged the development of an alternative,transformative vision for criminal justice organized around three, inviolable principles: dignity; community; and equality.
In response to this call, some people have wondered how to get from here to there. At one level, this is a question about how and why reform happens in the United States, which is a complex phenomenon. But as I have shown elsewhere, to win widespread support for major institutional change in the United States, reformers must construct a narrative that successfully casts the offending institutions as “un-American”—that is, as a betrayal of the potent myths and iconic ideals of national identity. Developing such a narrative does not guarantee a movement’s success—much also depends on expanding political opportunities. But not developing it guarantees a movement’s failure.
And therein lay the problem. Despite all the talk about criminal justice reform, the narrative of the punitive era remains fundamentally unchallenged and unchanged. That narrative runs something like this: The most important role for the state is to guarantee the security of a person’s life and property. Some people threaten that security for no good reason other than personal failings, and it is the responsibility of all law-abiding citizens to see to it that the state has the power and resources it needs to fulfill its central mission.
This deceptively simple narrative is the foundation upon which the entire architecture of the carceral state has been constructed. It gave rise to an interlocking set of institutions, rules, and practices at every phase of the criminal justice system, from the first contact with the police to the enduring disabilities imposed after release from prison. Collectively, this elaborate lattice enabled the state to accomplish what had been constructed as its primary mission—viz., to separate “us” from “them” as thoroughly as possible.
To ensure their legitimacy in a post-civil rights era, these rules, practices, and institutions had to have several characteristics. First, they had to be facially neutral, which honored the newfound creedal commitment to formal equality and permitted the belief that racial or ethnic disparities in criminal justice derive entirely from different rates of offending. They allowed the state, in other words, to appear fair.
Second, the entire system had to be inscribed into the written law, which encouraged the myth that ours is a government of laws and not of men. And finally, it had to protect and promote the historic attachment to individual liberty and private property, which allowed it to claim the legitimacy that comes from a long and uninterrupted pedigree.
The creation of the carceral state was of course more complex than I suggest here. The narrative of the punitive era also had to fit other emerging narratives of the late 20th century, like the elevation of individual responsibility that lay behind the gradual decline of the welfare state and the triumph of a colorblind ethos. The punitive narrative also needed to create heroes and demons (the over-worked prosecutor twisted into knots by legal technicalities, for instance, and her perennial nemesis, the cunning drug dealer who manipulates the rules to escape justice), which in turn gave cultural legitimacy to the expanding and entangling reach of the state.
The point, however, is that a simple narrative about the way the world ought to be was mobilized and pressed into service again and again to create an entirely new legal, political, and cultural apparatus—the governance of the carceral state. And as yet, this narrative has no competitor. Criminal justice reform in the United States does not attack this narrative so much as sand down its rough edges. As a result, we continue to live in a world dominated by the punitive narrative: when it comes to criminal justice, the state exists to protect us from them.
I continue to maintain that criminal justice in the United States needs to be organized around dignity, community, and equality. But we need a narrative that takes us from here to there—a narrative that makes change just and resistance “un-American.” That is the work of future columns.

Joseph Margulies
Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of Record in Rasul v. Bush (2004), involving detentions at the Guantánamo Bay Naval Station, and in Geren v. Omar &Munaf v. Geren (2008), involving detentions at Camp Cropper in Iraq. Presently he is counsel for Abu Zubaydah, whose interrogation in 2002 prompted the Bush Administration to draft the “torture memos.” In June 2005, at the invitation of Pennsylvania Senator Arlen Specter, Margulies testified at the first Senate Judiciary Committee hearing on detainee issues.
Margulies writes and lectures widely on civil liberties in the wake of September 11 and his commentaries have appeared in numerous publications, including the Washington Post, the Los Angeles Times, the Chicago Tribune, the National Law Journal, the Miami Herald, the Christian Science Monitor, the Virginia Quarterly Review, and the Legal Times. He is also the author of the widely acclaimed book, Guantánamo and the Abuse of Presidential Power (Simon and Schuster 2006). Among other accolades, Guantánamo was named one of the best books of 2006 by The Economist magazine. It received the prestigious Silver Gavel Award of 2007, given annually by the American Bar Association to the book that best promotes “the American public’s understanding of the law and the legal system.” It also won the Scribes Book Award of 2007, given annually by the American Society of Legal Writers to honor “the best work of legal scholarship published during the previous year.” He is also the author of What Changed When Everything Changed: 9/11 and the Making of National Identity(Yale Univ. Press 2013) and has won numerous awards for his work since 9/11.

Sunday, January 17, 2016

Robert M. Wachter: How Measurement Fails Doctors and Teachers


By ROBERT M. WACHTER, New York Times, JAN. 16, 2016
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TWO of our most vital industries, health care and education, have become increasingly subjected to metrics and measurements. Of course, we need to hold professionals accountable. But the focus on numbers has gone too far. We’re hitting the targets, but missing the point.

Through the 20th century, we adopted a hands-off approach, assuming that the pros knew best. Most experts believed that the ideal “products” — healthy patients and well-educated kids — were too strongly influenced by uncontrollable variables (the sickness of the patient, the intellectual capacity of the student) and were too complex to be judged by the measures we use for other industries.

By the early 2000s, as evidence mounted that both fields were producing mediocre outcomes at unsustainable costs, the pressure for measurement became irresistible. In health care, we saw hundreds of thousands of deaths from medical errors, poor coordination of care and backbreaking costs. In education, it became clear that our schools were lagging behind those in other countries.
So in came the consultants and out came the yardsticks. In health care, we applied metrics to outcomes and processes. Did the doctor document that she gave the patient a flu shot? That she counseled the patient about smoking? In education, of course, the preoccupation became student test scores.

All of this began innocently enough. But the measurement fad has spun out of control. There are so many different hospital ratings that more than 1,600 medical centers can now lay claim to being included on a “top 100,” “honor roll,” grade “A” or “best” hospitals list. Burnout rates for doctors top 50 percent, far higher than other professions. A 2013 study found that the electronic health record was a dominant culprit. Another 2013 study found that emergency room doctors clicked a mouse 4,000 times during a 10-hour shift. The computer systems have become the dark force behind quality measures.

Education is experiencing its own version of measurement fatigue. Educators complain that the focus on student test performance comes at the expense of learning. Art, music and physical education have withered, because, really, why bother if they’re not on the test?

At first, the pushback from doctors and teachers was dismissed as whining from entitled and entrenched guilds spoiled by generations of unfettered autonomy. It was natural, went the thinking, that these professionals would resist the scrutiny and discipline of performance assessment. Of course, this interpretation was partly right.

But the objections became harder to dismiss as evidence mounted that even superb and motivated professionals had come to believe that the boatloads of measures, and the incentives to “look good,” had led them to turn away from the essence of their work. In medicine, doctors no longer made eye contact with patients as they clicked away. In education, even parents who favored more testing around Common Core standards worried about the damaging influence of all the exams.

Even some of the measurement behemoths are now voicing second thoughts. Last fall, the Joint Commission, the major accreditor of American hospitals, announced that it was suspending its annual rating of hospitals. At the same time, alarmed by the amount of time that testing robbed from instruction, the Obama administration called for new limits on student testing. Last week, Andy Slavitt, Medicare’s acting administrator, announced the end of a program that tied Medicare payments to a long list of measures related to the use of electronic health records. “We have to get the hearts and minds of physicians back,” said Mr. Slavitt. “I think we’ve lost them.”

Thoughtful and limited assessment can be effective in motivating improvements and innovations, and in weeding out the rare but disproportionately destructive bad apples.

But in creating a measurement and accountability system, we need to tone down the fervor and think harder about the unanticipated consequences.

Measurement cannot go away, but it needs to be scaled back and allowed to mature. We need more targeted measures, ones that have been vetted to ensure that they really matter. In medicine, for example, measuring the rates of certain hospital-acquired infections has led to a greater emphasis on prevention and has most likely saved lives. On the other hand, measuring whether doctors documented that they provided discharge instructions to heart failure or asthma patients at the end of their hospital stay sounds good, but turns out to be an exercise in futile box-checking, and should be jettisoned.

We also need more research on quality measurement and comparing different patient populations. The only way to understand whether a high mortality rate, or dropout rate, represents poor performance is to adequately appreciate all of the factors that contribute to these outcomes — physical and mental, social and environmental — and adjust for them. It’s like adjusting for the degree of difficulty when judging an Olympic diver. We’re getting better at this, but we’re not good enough.

Most important, we need to fully appreciate the burden that measurement places on professionals, and minimize it. In health care, some of this will come through advances in natural language processing, which may ultimately allow us to assess the quality of care by having computers “read” the doctor’s note, obviating the need for all the box-checking. In both fields, simulation, video review and peer coaching hold promise.
Whatever we do, we have to ask our clinicians and teachers whether measurement is working, and truly listen when they tell us that it isn’t. Today, that is precisely what they’re saying.

Avedis Donabedian, a professor at the University of Michigan’s School of Public Health, was a towering figure in the field of quality measurement. He developed what is known as Donabedian’s triad, which states that quality can be measured by looking at outcomes (how the subjects fared), processes (what was done) and structures (how the work was organized). In 2000, shortly before he died, he was asked about his view of quality. What this hard-nosed scientist answered is shocking at first, then somehow seems obvious.
“The secret of quality is love,” he said.

Our businesslike efforts to measure and improve quality are now blocking the altruism, indeed the love, that motivates people to enter the helping professions. While we’re figuring out how to get better, we need to tread more lightly in assessing the work of the professionals who practice in our most human and sacred fields.

Robert M. Wachter is a professor and the interim chairman of the department of medicine at the University of California, San Francisco, and the author of “The Digital Doctor: Hope, Hype, and Harm at the Dawn of Medicine’s Computer Age.”

Ross Douthat: The Bill Clinton Question

Ross Douthat




IN 2014 Matt Bai published a book called “All the Truth Is Out,” a history of Gary Hart’s scandal-driven downfall that doubled as a lament for political journalism’s surrender to the lure of tabloid culture.

Bai’s book was a great read, and nobody would dispute his point that there’s far less privacy for politicians than in the days when Lyndon Johnson could tell a group of reporters: “You may see me coming in and out of a few women’s bedrooms while I am in the White House, but just remember, that is none of your business.”

But his book’s title was still a little bit misleading. Even today, we don’t get all the truth about the sex lives of the powerful and famous. We get more of it than people got in the 1960s, but it still often comes in fragments, glimpses, rumor and conjecture.

You can read a thousand supermarket stories, for instance, without getting any closer to the truth about most Hollywood relationships. And while the mainstream press isn’t necessarily protective of public figures, neither is it rushing out to do National Enquirer-style digging whenever there’s a plausible rumor in the wind. For every Eliot Spitzer or Mark Sanford, there’s a scandalous story that flares and vanishes amid a lot of journalistic discomfort about touching it.

There’s also a certain randomness to when a scandal actually breaks big. To take a nonpolitical example, Bill Cosby’s sexual exploitations were kinda-sorta in the public record for years and years, but they were a footnote in profiles and biographies until Hannibal Buress starting talking about Cosby-the-rapist in his comedy routines. Then suddenly, it was a story, a cascade of stories, and the whole truth or something close was out.

Similarly, in the political realm, The National Enquirer first published John Edwards-Rielle Hunter stories in October of 2007. But Edwards was able to make his way through an entire primary campaign before the mainstream media finally, reluctantly, started reporting on his love child.

Which brings us to Bill Clinton, whose old scandals are once more in the news — because Donald Trump is talking about them, because Juanita Broaddrick took to Twitter to reassert her claim that Clinton raped her in 1978, and because today’s liberal deference toward rape victims makes an uneasy fit with how the Clinton camp dealt with accusations from Broaddrick, Kathleen Willey and Paula Jones in the 1990s.

This has produced a lot of discussion about whether the former president’s sexual past is “fair game” during his wife’s 2016 campaign. But that question tends to assume that there’s some consensus about the former president’s sexual past. It assumes that all the truth is out.

In reality, though, the narrative around Clinton’s sexual past is highly unstable, with several variations that have a plausible claim on being true.

There’s the official Clintonite narrative, in which the former president strayed with Gennifer Flowers and Monica Lewinsky, was forgiven by his wife and daughter, and deserves to have his repentance respected.

Then there’s the narrative that I suspect most Americans believe, in which the former president was much more of a tomcat in Arkansas, and probably has tomcatted occasionally in his post-presidency — but always consensually, and lately in ways that have minimized exposure or embarrassment.

If either of these narratives are true, then Clinton’s sex life will be a non-issue in 2016. If an adulterer, even a frequent adulterer, is all he is, then an America that didn’t want him impeached in the 1990s isn’t going to object to having him as the First Gentlemen today.

But suppose you believe the Broaddrick story. Liberals dismissed it during the impeachment days, but if you read the summary of the case from the (mostly liberal) Dylan Matthews at the (mostly liberal) website Vox, this dismissal looks unfair. There’s an inescapable he-said/she-said dynamic, but one need not be a “believe all rape allegations” absolutist to find her claim persuasive.

If she’s telling the truth, then Clinton’s sexual past becomes something more predatory. The slippage between a powerful man’s dalliances and straightforward predation is something that could happen just once. But looked at in the light of a credible rape allegation, there are all sorts of Clinton stories — the Willey and Jones cases, the rumors collected by Jones’s lawyers, the old tales of state troopers being used as procurers, the 2002 globetrotting on the jet of a billionaire who’s also a convicted statutory rapist — that could suggest a darker pattern, tending toward the Cosby-esque.

The truth about Bill Clinton’s past, then, is that we don’t actually know the truth. And even in our tabloid-driven age, it’s quite possible that we simply never will.

But if the question is, “Does Bill’s past matter for Hillary’s campaign?,” the answer depends less on what we know right now than on what might be waiting to come out.