The media coverage of police killings of unarmed black civilians has fueled a national debate over problems in policing. Research on the effects of intrinsic bias, as well as national statistics for arrest rates for African Americans, has sparked much-needed soul searching around racism and the lack of impartiality in the criminal justice system.
But, while criticism has been aimed at bad actors in the police force or at inadequate training protocols, we may be missing the forest for the trees, according to Adam Benforado, an associate law professor at Drexel University. In his new book, Unfair: The New Science of Criminal Injustice, Benforado combs through decades of social science research to demonstrate how many of the tools used in our criminal justice system—from interrogating the accused to solitary confinement for prisoners—are inherently flawed, too often harming the innocent rather than serving justice and keeping our communities safe.
We humans don’t understand the way our minds work and the biases we carry, according to Benforado; and therein lies the problem. We tend to see the world and make decisions about others based on gut reactions, circumstantial evidence, and preconceived notions. Research shows that, when we are presented with information, our minds are often busy “bending the facts, sawing off inconvenient corners, and tossing away contradictory information so that everything can be fit into our ready-made boxes,” he writes. Unfortunately, this can lead to some very bad outcomes.
“Our intuitions are so ingrained that it’s hard to imagine they might be wrong,” writes Benforado. “But in fact the forces we believe decide cases and determine outcomes form, at best, a badly incomplete list of concerns. At worst, they are largely irrelevant.”
To counteract these problems, he argues, our criminal justice processes are in sore need of revamping. For example, research has shown that circumstances like being under stress, not being observed by others, and feeling pressure to “win” all encourage everyday people to lie and cheat. Unfortunately, these circumstances are rampant in prosecutorial work, which makes it an environment ripe for deceit. They are also present in police interrogations and result in overly aggressive tactics—like depriving suspects of sleep or food, or lying about evidence possessed by the police—that can make even innocent people confess to crimes they didn’t commit. Benforado suggests that we use this knowledge not to chastise police or prosecutors, but to create new processes that safeguard against our natural tendency to lie and cheat—like providing forensic evidence to both prosecutors and defense counsel in criminal trial investigations and transforming how police do interrogations. Changing procedures helps everyone stay true to values of honesty and fairness.
“Our moral flexibility is a two-way street: while cheating can be contagious, the people around us can also promote doing the right thing,” he writes.
In fact, much of the way evidence is collected in criminal proceedings is problematic and could be changed for the better. Research has shown that when confessions are filmed from the perspective of the questioner, they are more likely to be believed than when confessions are filmed from the side or from the perspective of the defendant. Eye-witness-accounts are prone to error because memories are so easily corrupted, so that how police question a witness determines how accurately the witness will recall events. Though research shows we put a lot of stock into videos or eye-witness-accounts, we can easily be deceived, argues Benforado, and the science proves that. But, while some police departments have taken this into account and changed procedures, many haven’t, either because they don’t care or are afraid of losing their edge in criminal investigations. This, of course, leads to more unfairness, as justice will depend on which jurisdiction you happen to live in.
Similar biases can infect courtroom proceedings. For example, research has shown that the race, perceived attractiveness, affability, and nervous behavior of a defendant can all influence rates of conviction and lengths of sentencing. The voice and behavior of an attorney, as well as how evidence is presented, can mislead jury members, making them trust information they shouldn’t or ignore important clues in a case. And, jurists’ own backgrounds will cause them to weigh evidence through a lens of bias, no matter how many times a judge instructs them to act impartially. This leads Benforado to make a radical suggestion: that perhaps trials shouldn’t be done in person at all, but happen remotely, using avatars for the people involved. In this way, he suggests, irrelevant details could be edited out and justice might be better served.
Benforado’s book is simply chock-full of eye-opening research and practical suggestions for improvement. Some of these have already been tested in certain districts or in other countries, like Europe or Australia, with impressive results. In Hawaii, a program that treats minor infractions of probation with a few days in jail (instead of longer sentences) has successfully reduced recidivism, and is now used in 17 states. In Texas, a program that has an independent team investigate questionable court proceedings has reduced wrongful convictions. And, in Europe, prisons that try to mimic the outside world as much as possible—i.e. by having prisoners wear their own clothes, cook for each other, and enjoy family visits regularly—has helped prisoners reenter society better once their sentences have been carried out.
The answers for increasing fairness and humane treatment may be there; but sometimes we lack the will to change. Part of the reason, according to Benforado, is that we are too focused on dehumanizing criminals and wanting to punish them, so that we ignore the research and convince ourselves that our system is fair, when it’s clearly not. We don’t want to acknowledge that environment plays a huge role in human behavior, and that many of the people we convict and lock up are simply victims of abuse themselves, drug addicts in need of treatment, or people who’ve confessed to crimes because they saw no other way out. Continuing like we are is a no-win situation, he argues.
“We need to stop viewing people we arrest, prosecute, convict, and imprison as evil and less human, for that toxic combination drives us to hate and hurt, makes our brutish treatment seem justified, and does little to make us safer,” he writes.
Sadly, I fear that Benforado’s criticisms are so far-reaching as to be overwhelming. It seems that nearly no aspect of our current system is fair and impartial. But, I do feel some hope from the examples he cites in his book of people and institutions that have changed and improved their outcomes. If we—like they—can learn to tune into our biases and use reason when pursuing and dispensing justice, we may be able to find ways to increase public safety, reduce wrongful convictions, and make prisons more humane, all while helping to address the disproportionate numbers of African Americans killed or in prisons. We need to make more effort to heal broken families and communities harmed by crime and to invest more in the programs that have been shown to prevent crime in the first place. But, that may take heart as well as mind.
“Our greatest opportunity for achieving true justice is learning when to override our basic instincts and when to draw on our deep well of empathy,” writes Benforado.
Hopefully, his book will push us to take a step in that direction.