I recently read a book that presents a disturbing analysis of the criminal justice (actually, injustice) system of the United States. Unfair: The New Science of Criminal Injustice by Adam Benforado is extremely well-written and well-reasoned. It can also be viewed as the companion volume to Bryan Stevenson’s Just Mercy which I reviewed in a prior post. This post will include a number of direct quotes from Unfair.
We want “…to see the world as a fair place where people receive their just deserts. When confronted with an example of a seemingly ‘good’ person, like a virgin, suffering a terrible outcome, we experience a strong dissonance. And we eliminate that discomfort–and maintain our perception of justice–by finding fault with the victim.” p. 17
Benforado discusses research about why cops see threats where there are none. The research study showed that research subjects who were holding a gun were more likely to perceive an individual shown on a screen as threatening (no matter what the individual on the screen was doing) than research subjects who were not holding a gun. “…having a gun at your fingertips can make the world seem a far more threatening place, with potentially deadly consequences.” p. 61
Later, Benforado analyses the flaws of police lineups. “…studies of actual police lineups show that eyewitnesses select innocent people more than 30 percent of the time. Would we as a society tolerate the sale of a car whose brake lights malfunctioned on every third trip, or a hospital that handed out the wrong medicine to every third patient? Obviously not; we would demand immediate change. So why do we accept the claim that the legal system works just fine as it is? p. 129
Judges lack training in analyzing expert testimony and don’t grasp the importance of scientific literacy. “Federal and state judiciaries should commit to rigorous training of judges in assessing expert testimony…A lack of proficiency can bring devastating consequences…making scientific literacy mandatory doesn’t demean judges; it’s a testament to the importance of what they do.” p.155
Why do we punish those convicted of crimes? “[T]here is a growing scientific consensus that it is a desire for retribution–not deterrence or incapacitation–that has the strongest influence on why we punish. [T]he motive to deliver payback to the perpetrator operates as a sort of automatic default.” p.191
“[W]e often seem to be driven to punish first and seek justification second.” p.194
“[O]ur desire to find a culprit and reset the moral scales by inflicting punishment may sometimes override our commitment to fair treatment…[R]etaliatory acts look far less like accidents, anomalies, and collateral damage. They look like reflections of our true nature–who we really are.” p 196-7
Punishment that is meted out differs by the ‘race’ of the perpetrator and the ‘race’ of the victim. Example [p. 197]: Pete murders a woman who spurns him. If the woman is white, Pete is more likely to face than death penalty than if the woman is black. If Pete is black, his odds of facing the death penalty are far higher than if he were white. Black men “…also receive higher bails, face a greater incarceration rate, and are subject to longer sentences than white defendants.” They “are also more likely to actually be executed.” p. 197
Research has shown that stereotypes and bias affect views of guilt and punishment. Study participants read a story about a boy with prior juvenile convictions who committed a violent crime. “The texts given to the groups were identical, aside from one word: for the first group, the defendant was described as black; for the second group, he was described as white. Participants who had read about the black teenager express more support for the severe sentence and for the notion that kids are as blameworthy as adults.” p. 198 That is: white boys are boys, but black boys are men.
“It’s not just whether you are black; it’s how black (italics in original) you are. The broadness of a defendant’s nose, the thickness of his lips, and the darkness of his skin have all been correlated with capital punishment decisions: in cases where the victim is white, the more stereotypically black a defendant’s facial features, the more likely he is to receive the death penalty.” p. 199
Religious views also affect the severity of punishment meted out by the judicial system. “[I]f you believe in the existence of pure evil…you will tend to support harsh punishment and view efforts at reforming offenders as pointless.” p. 203 You will be more likely to support the death penalty and less likely to appreciate nuance and “…the various forces outside of an offender’s control that may have led him to commit a terrible act.” p.204
Slavery existed in what became the United States since the 1600s. The US is still dealing with the effects of enslaving millions of its residents. “A country that abolished slavery 150 years ago now has a greater number of black men in the correctional system than there were slaves in 1850 and a greater percentage of its black population in jail than was imprisoned in apartheid South Africa.” p.209 The US prison system is essentially a continuation of slavery.
“[I]n every state, we imprison people for relatively minor, nonviolent crimes–like using drugs or passing a bad check–that would receive a slap on the wrist in other countries. While no more than 10 percent of those convicted of crimes in Germany and the Netherlands are sentenced to prison, in the United States it’s 70 percent.” p.209
Solitary confinement is more cruel than corporal punishment. “The notable thing about isolation, of course, is not the infliction of direct suffering; it’s the withholding of the things people need in order not to suffer–in particular, human contact.” p. 217 In addition, solitary confinement “…frequently aggravates the symptoms of mental illness. More egregious still, when that person’s psychological condition deteriorates–leading him to throw food or feces or act out against guards–we punish him with more isolation, adding years or even decades onto his sentence.” p. 220
“If we really wanted to deter crime, we would stop wasting our time with harsh mandatory minimums, three-strikes laws, and life without the possibility of parole, which have a minimal or nonexistent impact on offending…A punishment needs to be distasteful, but it doesn’t need to be long.” p. 226
Harsh treatment by guards and warehousing with little or nothing to do is a prescription for violence within correction facilities. “In Georgia between 2010 and 2014, for example, there were thirty-four murders that occurred inside [italics in original] state prison. Our correctional facilities are incubators for brutality.” p. 228
“Depriving people of normal human contact does not eliminate criminal behavior; it eliminates the capacity to engage in normal human contact…it leaves them unprepared to get a job or interact with the outside world when they are released.” p.229
“[T]he extreme harshness of our punishments may actually increase the likelihood of malfeasance because they suggest that the law is not worthy of respect. If a couple of garage break-ins over the summer and a stolen car can land a nineteen-year-old in prison for life, then it is hard to trust the system, believe in its rules, and rely on its processes and officers.” p. 230
“The total bill for our correctional system is some $60 billion each year…The irony is that spending money on education–in particular to keep male high school students from dropping out–appears to be a far more effective way to combat crime.” p. 231
There are solutions to the unfairness of our judicial system. Norway has a far-more-humane way of treating its prisoners. “A monstrous prison will create monsters. And what is the point of that?” p. 232
Germany is also concerned about the humanity of its prisoners. “Germany’s Prison Act, for example, makes rehabilitating the inmate the sole aim of incarceration; protecting the public is simply a natural outgrowth of ensuring the inmate’s successful transition back into society upon release.” p.233
What and who we choose to protect or punish is wildly unfair. “We will fight tirelessly to protect the rights of those who spew hate in the public square, stockpile weapons capable of wiping out classrooms of children, and flood our airwaves with lies to sway elections, but we draw the line at permitting a man convicted of stealing videotapes a door to his toilet, the chance to spend a night with his family, or the experience of preparing his own dinner in his own shirt. If ensuring freedom for those who may harm us is worth the risk when the costs are high, that must certainly be the case when protecting their rights leaves us safer.” p. 235
“[P]owerful individuals and institutions are already exploiting the weaknesses in our legal system for their own gain. What does that mean in practice? If you are rich and connected, you go free. If you are poor and uneducated, you go to prison.” p. 248 As Bryan Stevenson has said, “The opposite of poverty is justice.”
“There’s a reason that this book about unfairness hasn’t talked about white-collar crime: those who engage in corporate self-dealing, illegal accounting schemes, and securities fraud get more than a fair deal.
For those at the bottom, by contrast, the lack of access initiates a devastating downward cycle. You can’t stop losing, because every time you return from prison, you are in a worse position to gain the help you need…And you pass on the curse to your children…Entire inner-city communities become locked into this self-reinforcing inequity, while gated ones across the river are able to secure wealth and success for generations to come.” p. 252
A major part of the problem in policing and justice is implicit racial bias. “[I]mplicit racial bias puts unarmed blacks at a significantly greater risk of being shot than unarmed whites…One successful approach [to reduce implicit bias] is to show people images of well-known blacks with strong positive associations (like Martin Luther King Jr.) and well-known whites with strong negative associations (like Charles Manson) in order to disrupt racial stereotypes.” p. 258
Trials do not necessarily achieve a just outcome. Prosecutors can tilt a trial in their direction by failing to give the defense team all the evidence. As a solution, “…we could have forensic reports automatically sent from the crime lab to the prosecution and defense at the same time, or have all police reports entered into an open-access file with no input or revision by the prosecution.” p. 261
There are a number of methods that are being used in some jurisdictions to ensure that crimes are properly investigated and that negate reliance on faulty witnesses, intuitions, and biased memories. These methods include cameras that are triggered by gunshots and record the scene. Panoscan which records a complete view of the crime scene that allows detailed inspection even months after the fact. Smartphone apps that give responding officers details about any prior incidents at that address. To reduce deaths, officers should have trauma kits and know how to use them. This could save thousands of lives each year.
In order to reduce judicial bias and replace self-serving amicus briefs, Benforado suggests the creation of an independent panel that would provide neutral data on the relevant points in a particular case. “This simple fix could combat judicial tunnel vision and ensure that all of the justices have access to the same data, which would make it harder to ignore conflicting evidence. ” p.264
Surgery errors and pilot errors have been dramatically reduced through the use of checklists. A smartphone app that guides officers through the proper steps of managing a crime scene would also reduce errors and the chance of a wrongful conviction. “[I]t seems misguided to fret about the impact of such technology when the consequences of a mistake are so high.” p. 266
Benforado proposes a radical, but sensible idea: trials should be virtual with neutral avatars representing all involved individuals. This would eliminate all biases based on an individual’s behavior or appearance. If juror’s don’t know what a person looks or sounds like, their focus is then directed solely to the evidence. Lawyers and judges wouldn’t know anything about the jurors and so would also have to focus on the evidence and witness statements. Witnesses wouldn’t have to worry about their safety. Trials would be more efficient, rapid, and cheaper. Therefore, more cases could go to trial rather than being pleaded out, which would benefit poor defendants, many of whom, although innocent, plead out in order to avoid remaining in jail, sometimes for years, until their case is tried. The current system may make for high drama, but with limited justice.
Another proposal by Benforado is the creation of a virtual corrections environment in which “[t]hose convicted of crimes might continue to live in their homes and work at their jobs but be required to spend two hours every day in an immersive online space tailored to serve whatever ends we deemed best, whether deterrence, rehabilitation, or something else. The eventual payoff could be enormous. For one thing, we would no longer have to house, feed, and clothe most inmates, which would drastically reduce correctional costs. More critically, only the convict would experience the punishment, not his children, spouse, parents, and friends, as in the current system, and it would be only the punishment that we directly intended, not the assaults that plague today’s prisons.” p.271
“We need to stop viewing the people we arrest, prosecute, convict, and imprison as evil and less than human, for that toxic combinations drives us to hate and hurt, makes our brutish treatment seem justified, and does little to make us safer. We must challenge the structures that prevent us from seeing our commonalities, hide our shared goals, and dampen our empathy for our fellow human beings. And we must build new mechanisms that encourage us to understand the perspectives and situations of others.” p. 271
“The arc of history does not bend toward justice unless we bend it.” p. 286
