Suppose we lived in a world where, when something went horribly wrong, the first question we asked was, “How do we make sure this never happens again?” That might not be the only question we ask, but it would always be the first and most important.
You might think we already live in this world. We don’t. We live in a world where the first, and often the only, question we ask is, “Who is to blame for this wrong, and how can we punish them?”
I hope you can see that these are two very different orientations. The first looks outward to the farthest reaches of causation. It asks, in the broadest possible terms, “What happened?” What long series of dominoes fell, perhaps over many years, that led finally to this godawful day? In complex systems, every breakdown—at least, every breakdown worth correcting—is the product of many actors, all of whom move events farther down the causal path. Asking what happened draws a great many people together, some of whom may not like or respect each other, in a spirit of open dialogue and collaborative change.
And once we understand what happened, we have to ask what we need to do to make sure it never happens again. What policies have to change? What practices have to end? What institution has to be closed and what other institution has to be created? What norms, beliefs, and habits have to be altered or abandoned? Naturally, a process like this can only work if everyone agrees at the outset not to point fingers. The goal is not to blame but to improve.
If anyone thinks this is what takes place under the second orientation, they need to spend more time in a courtroom. Consider, for example, these two tragedies.
Some years ago, I represented the family of Matthew Sanville. Fate had not been kind to Matt. It had implanted in his mind an illness that made him paranoid, suspicious, volatile, explosive. There was medicine, of course. All those drugs with unpronounceable names that never quite worked and made his condition worse, or that worked too well and left him stupefied and befogged.
Matthew took his own life in a Wisconsin maximum-security prison. He had been placed in solitary confinement, where his condition deteriorated dramatically. He stopped eating. Stopped taking his medication. Became cadaverously thin. Matt’s decline was obvious. Prisoners housed nearby repeatedly warned the prison staff. His family sent increasingly urgent messages to prison administrators.
But the warnings fell on deaf ears. Eventually, Matt ripped his bedding into strips, fashioned the strips into a noose, wetted the noose in his sink, tied it around his neck, and strangled as the noose dried and tightened. It had to have been a torturously slow, excruciating death. A friend and I sued the attending doctors and a guard. The jury found in our favor and awarded Matt’s mother, son, and sister a great deal of money.
I hadn’t thought about this case for a long time but was reminded of it when I read about Larry Eugene Price, who died in late 2021 in an Arkansas jail. At least if the press accounts are true, Mr. Price, like Matt Sanville, suffered from a long history of severe mental illness and had been placed in solitary confinement. Like Matt, he declined under the eyes of an indifferent jail staff. Stopped taking his medication. Began acting bizarrely. He eventually died of malnutrition and dehydration, but not before he had lost half his body weight. The staff was apparently so indifferent to Mr. Price’s condition that the jail logs recorded the same bland entry, “Inmate and cell OK,” even after he had died. Lawyers have sued on the family’s behalf.
Both of these lawsuits ask, in so many words, “Who can I blame and punish?” The question focuses our attention narrowly on the last actors in the causal chain—the correctional staff. But how would matters look if we first asked, “What happened?” The question would draw our attention to so much more.
When Matt’s illness bent to the will of pharmacology, he was a loving father, devoted son, and proud brother. At other times, however, modern medicine was no match for the madness, and one day, he beat his mother severely. She called the police because there was no one else to call and she thought they’d take him to a hospital. The police took him to jail. The District Attorney charged him with a serious crime because that’s what was always done when one person beat another severely.
And when Matt refused to let his lawyer raise an insanity defense because he didn’t want anyone to think he was “crazy,” he was duly convicted. Despite the prosecutor, the probation officer, and the mother (remember her, the victim?) urging otherwise, the judge sent him to prison, because that’s what was always done when one person beat another severely. At his sentencing, the judge said the young man could get the help he needed in prison. Then he went to prison and died.
As for Mr. Price, it appears—again, according to press accounts—that he walked into the local police station and mimicked pointing a gun with his finger. Mr. Price suffered from schizophrenia and was well known to the local police, since they were the people who encountered him during his periodic breaks with reality. On this occasion, they decided it would be in his best interest to put him in jail. The prosecutor charged him with making terroristic threats and a judge ordered him held on $1000 bail. For want of $100 bond, Mr. Price sat in jail for nearly a year. He declined, of course, because jail is no place for the profoundly mentally ill. And while Matt ended his life rather than endure the conditions, Mr. Price slowly wasted away until his body could no longer support life.
If we’re genuinely trying to prevent tragedies like these, we have to ask much more than whether the correctional staff committed a tort. We have to ask, for instance, why it made sense for Matt’s mother to believe her only choice was to call the police; why the police thought it made sense to lock Matt up and bring his case to a prosecutor; why the prosecutor thought it made sense to charge Matt with a serious crime that carried a risk of prison; why the judge allowed Matt to abandon an insanity defense and plead guilty, and why the judge thought Matt could get help for his illness in prison.
In Mr. Price’s case, we have to ask, among many other questions, why the police thought it was in his interests to lock him up; why the prosecutor charged him with a felony rather than remove his case to the mental health system; whether a mental health system existed that could have helped Mr. Price; and why he remained in custody for a year simply because he couldn’t afford a $100 bond. And these are just the immediate questions. More broadly, both cases call on us to ask why we expect the criminal legal system to handle problems that trace their origin to mental illness rather than criminal intent. None of these questions can be asked, let alone answered, in a lawsuit against the correctional staff.
The effort to understand what happened, and to make sure it never happened again, is called a Sentinel Event Review. There is an entire literature behind it and I expect to write more about it more in the future. For now, it is enough to say that it has a place whenever mistakes happen that we don’t want to see repeated, from the meltdown at Southwest Airlines to classified documents ending up in the home of former presidents. And it has an obvious role in the criminal legal system, where miscarriages are legion. If an officer shoots an unarmed suspect or the police charge an innocent person, for instance, that’s an opportunity for a Sentinel Event Review, and in the best municipalities, that’s exactly what happens. And of course, there should always be a Sentinel Event Review every time a person takes his own life or withers to a shadow and dies in custody.
When I make arguments like this, some people think I am calling for the end of civil rights litigation. Absolutely not. I have been a civil rights lawyer for decades and value the place of the civil rights laws in American life. The correctional staff in Matt’s case behaved inexcusably and it was important that they be held to account.
But regardless of whether there was a tort, I think we can all agree that Matt Sanville and Larry Price didn’t have to die. And the first question a compassionate society should ask, without blame or recrimination, is how we can make sure tragedies like this never happen again.