Review by Dave Gamrath
One-liner: an interesting review of many flaws in our legal system, many of which stem from how our system doesn’t account for how our brains are truly wired.
The author, Adam Benforado, provides an analysis from psychology and neuroscience to expose hidden dynamics undermining our criminal justice system. He claims injustice is built into our legal structures, and that this injustice is not from “bad cops”, etc., but from how our minds operate, with automatic processes shaping our behavior. Benforado breaks his analysis into separate chapters for all the players in the process. He closes with some specific recommendations for reform.
The victim – in Chapter 1, Benforado discusses built-in biases we have regarding victims of crimes. One key bias has to do with our core emotion of “disgust”, triggered by things like rotting meat, etc., which through time has helped us to stay healthy and alive. We often apply a disgust label to a victim (such as a “drunk”) and often then jump to finding fault with them. Labels we give victims make big differences in how cases are handled. Other examples include placing greater value on young people’s lives, race, etc. We often then stick with our initial assessments even in the face of contradictory evidence.
The detective – Chapter 2 discusses tactics often used by police. Example – subjecting a suspect to the “third degree” of interrogation which can include significant pain. False confessions and incriminating statements are the leading contributors to wrongful convictions. Benforado claims that the “gold standard” of interviewing techniques, the Reid Technique, actually encourages false confessions, relying heavily on unreliable gut instincts and dubious cues to deception, leading to the conviction of many innocent people. Many who confessed later state they only confessed to end the pain and abuse of the interrogation. When cops offer leniency if one confesses, confession rates increase sevenfold. They often use scare tactics on the accused, such as “confess, or you’ll be sent up for life!” In the US, 9 of 10 prisoners are being punished based on admission of their own guilt, meaning no one had to come forward with proof. Benforado claims our prisons are full of innocents who falsely confessed due to unfair police tactics.
The suspect – here Benforado discusses mental illness common among prisoners. Many have psychopath traits, including lack of empathy for others. Although they make up only 1 to 2 percent of the general population, they represent 15 to 25 percent of the incarcerated. Also, roughly 60 percent of those in prison have had a traumatic brain injury. Psychopath’s amygdalae are less active. Those with deficiencies in their prefrontal cortex commit more crimes that demonstrate impulsivity and overreaction. By contrast, those with abnormal amygdala activity appear to engage in more calculated, emotionless aggression. I.E., there are different types of mental illness that lead to criminal behavior. Benforado discusses how environmental factors lead to brain deficiencies, such as poor nutrition or lead poisoning. Mothers smoking during pregnancy leads to 3X the likelihood of a criminality in adulthood, with similar patterns with alcohol abuse. Abusive parents, being an outcast at school and having delinquent friends lead to criminal behavior. Benforado also discusses how guns are not inanimate objects: clutching a weapon can change us. He states that society is implicit in crimes when we choose not to regulate weapons, when we leave some neighborhoods blighted, cut nutrition programs and don’t provide youths alternatives to gangs.
The lawyer – although most of us care about moral behavior, we often step over the line. There is evidence of pervasive cheating at nearly every stage of life. Why do we cheat? Dishonesty is not a simple cost-benefit analysis. We trick ourselves into believing we really aren’t behaving that badly. Point: the key to prosecutorial misconduct is that most lawyers aren’t consciously trying to cheat defendants; they just extremely good at deceiving themselves. They downplay the causal link between dishonest action and any associated harm – they distance themselves. When one person cheats, we see others quickly following suit. Dishonestly can spread like a plague in the right conditions. When the norm is to bend the rules, it’s hard for most people to resist. “Everyone else is cheating so why not me?” The more a prosecutor cheats the more they likely believe others are too. Also, they may think they are evening the scales or serving justice. People that work for non-profits or in public service may be more inclined to bend rules and justify it, including prosecutors and public defenders. We should all worry then about the enormous control prosecutors have over state evidence and witnesses. Willpower is a limited resource and lawyers often work in conditions that deplete their store.
The jury – most of our disagreements don’t arise from the character flaws of those who see things differently. Rather they reflect the realities of cultural cognition: our shared backgrounds and experiences shape how we perceive seemingly objective facts. And the fact that the true source of our disagreements can remain hidden from us can result in serious problems. Blindness à wrong conclusion. Even a videotape can lead to wrong conclusions; camera angles or viewpoints influence the scene. Camera perspective bias also influences our assessment of guilt, as well as deserved punishment. Thus dashboard cameras should be carefully used. When we view events as if standing in the other’s shoes, we are much more likely to attribute their behavior to forces in their environment, rather than their disposition and character. As for jury composition, juries should be diverse. But the juror selection process works against this, with both sides trying to seat juror’s more likely to see things their way.
The eyewitness – erroneous eyewitness identifications are one of the leading causes of wrongful convictions. There are limitations and frailties in human memory; our memories fail on a regular basis. Our memories aren’t like video cameras. We have limits in perception and attention. Our memories record what we encounter through the lens of our motivations, expectations and experiences. Thus, two people won’t have the same memory of the same event. And once formed, memories are subject to revision, alteration and reconfiguration. And stress reduces our memories (such as the stress involved in being the victim of a crime), as does significant physical assertion. Studies show our memories are about 80% accurate. People are 50% more likely to make an error identifying a person from another race. Comments made by others may have the biggest impact on a witness’s memory, such as comments from police. Young children, those with low IQs, who are sleep deprived, who are strongly drive to please others, and the elderly are particularly susceptible to misinformation effects. I.E., it’s easy to plant false memories. On another note, jurors are 2X to 3X more trusting of a confident looking witness, even if that witness is actually full of shit. Studies show that in actual police lineups, eyewitnesses select innocent people more than 30% of the time. Additional outcome: when an innocent person is locked up, police stop looking for the true perpetrator.
The expert – our justice system has an “expert paradox”. We ought to defer to experts when they are more qualified to assess matters than we are, but we often get things backwards, relying on our own skills when they are biased or flawed and embracing expert evidence when it is actually misleading. For the right price, an expert can be hired to defend any side of any issue. “White-coat-syndrome” – jurors blindly defer to experts without actually evaluation their testimony. In evaluating the believability of in-court testimony, judges often direct jurors to focus on the witness’s demeanor – how she acts as opposed to what she says. Studies show that common cues (failing to make eye contact, jittering legs, picking lent, nervousness, etc.) typically have nothing to do with truth telling. Old wives tales about honest faces are false. People regularly lie without sweating and sweat when telling the truth. The blind may actually be better judges of truth telling. The polygraph has never won over scientists.
The judge – all judges are susceptible to numerous unappreciated biases that influence their perceptions of seemingly neutral facts and laws as well as their ultimate judgments. Conservative members of the Supreme Court score higher on their degree of “judicial activism” (assessed by the percentage of agency decisions they elected to overturn). It’s not just political orientation that matters; age, race and gender, among other factors all appear to influence how a judge goes about their job, just as they influence jurors. Judges are significantly more likely to grant prisoners parole at the beginning of the workday or after a food break. Judges also work to ensure they don’t deviate from the expect distribution. Sports example: baseball umpires tend to reduce the strike zone with two-strike counts and expand it on three-ball counts. Judges, like the rest of us, tend to make gut decisions then look for supporting data, dismissing conflicting evidence along the way. When the do research, they already have an idea of what they are looking for, then they tend to find it. We all wear blinders fashioned from our limited lives. We get “help” supporting our biases when we use Google or Facebook. Interesting data: in 2010, 82% of defendants who selected a bench trial before a judge were acquitted; for those who stuck with a jury trial the figure was 51%.
The public – views on crime have changed immensely over time, and can be very different in different countries and cultures. Racial bias is common. It’s not just a matter of if you are black; the more black one is, the more likely you will be found guilty. The broadness of a defendant’s nose, the thickness of their lips and the darkness of their skin all correlate with capital punishment decisions. The beautiful are viewed as less blameworthy. Thoughts of death, like those evoked by reading about a terrorist attack, can lead one to act more punitively towards criminals. We are often susceptible to mortality-related prompts, and only those who are willing to impose the death penalty are allowed to serve on capital juries. The “belief in evil” is lurking in the background of every criminal law case.
The prisoner – Philadelphia created the world’s first fully realized penitentiary, Eastern State, roughly 200 years ago. Today, America has less than 5% of global population but almost 25% of all prisoners. The USSR’s Gulag never came close to the number we have currently on probation, in jails or prisons or on parole. Are you a black male without a high school diploma? It’s more likely than not you will spend time in prison. Unlike in Europe, the US has many penalty enhancements and mandatory rules that turn small infractions in decades in prison. Although the US is the only Western country to use capital punishment, what sets us apart even more may be our embrace of solitary confinement. Today we have 5 times as many inmates as in 1978. We are not going to make progress at this injustice until we realize we are just as ignorant of the effects of our punishments as we are of what drives us to punish. Our favored tools of mass incarceration and solitary confinement don’t do what we think they do. We view prisoners and potential prisoners as rational humans who make decisions to offend on cost/benefits analyses. So, we increase punishment to make crime more distasteful. Harsh treatment is ok because it’s deserved. But being moral, we can cause a prisoner physical pain. Thus we go with tough prison sentences. Prisoners that are uncontrollable are never let out. Simply put: “are prisons are humane; our punishments deserved; and our system makes us safer.” WRONG! Solitary confinement is torture. Social contact for humans is a necessity, not a luxury. The “payback” narrative helps us accept treatment that, in any other context, would be considered an atrocity. The DoJ estimates that over 200K prisoners are sexually abused each year. A large percent of prisoners have serious mental illness. The vast majority are released back into society without the support they need to avoid recidivism. The total bill for our correctional system is $60 billion a year. A year in a New Jersey prison costs more than a year at Princeton. The irony is that spending money on education is far more effective way to combat crime. Countries in Europe, including Norway, Germany and the Netherlands, focus their penal system around re-socialization and rehabilitation. That’s in their laws. They give special benefits to the mentally ill. And they have low recidivism rates.
The challenge – our legal system bolsters the myth that being impartial is simply a choice. It is still standard practice before a trial begins for consultants to collect info on a potential jury pool and work to target a sympathetic jury. Trial consultants also work to establish impressions that influence juror perceptions and judgments once a trial begins. Point: we ain’t working for fairness or justice.
The future – the tragedy about legal officials is that they have simply gotten used to our corrupt system. It’s accepted as a given. The main enemy of justice doesn’t lie in the corrupt dispositions of a few bigoted cops, stupid jurors or egotistical judges; it is found inside the mind of each of us. Thus, the starting point of any reform comes with understanding and accepting this reality. We need to think about how we can improve eyewitness identifications and reduce judicial bias, but also work on how we may avoid needing eyewitnesses in the first place. We should end the right of lawyers to remove jurors without cause before a trial. The proliferation of security cameras will be beneficial, but must be used correctly. We need improved forensic analysis. Benforado suggests we consider creating an independent group to provide reports on relevant topics to justices. Also, elimination of partisan expert witnesses. We could instead turn to independent witness panels funded jointly by the parties as part of normal court costs. And allow these panels to make binding decisions. Officials involved with crime scenes could make use of computer programs to ensure they process the scenes correctly. Benforado also suggests we could dispose of live trials. Participants in the trial could interact through avatars designed to eliminate common biases. Standardizing the virtual environment of the court would help with this change.
We need to stop viewing those arrested as evil and less than human, for that drives us to hate and hurt, and makes our brutish treatment seem justified, and does little to make us safer. We need to change the paradigm of the police from “lock people up” to “improve community safety”. The objective of investigators needs to be changed from obtaining admission of guilt to simply gathering reliable info. The young and mentally ill need to be treated with special care. Most important, inmates need to be treated with respect. We need to foster links between offenders and employers to that most inmates have jobs when released. We should make full restoration of rights of citizenship a goal for every prisoner. Big point: treat crime like a public-health issue, as an epidemic that we are all fighting together. Roughly a third to a half of American prisoners suffer from serious mental disorders. Those that are incarcerated are very disproportionately uneducated, poor, and survivors of childhood abuse and neglect. We need to get out of the payback business and focus on remedying the harm, rehabilitating the criminal and discouraging others from taking similar actions, and treating the conditions that precipitated the crime in the first place. We can use “problem solving courts”. Giving up a blame mindset lays the groundwork for transferring tax dollars from prisons and courts to schools, neighborhoods and mental healthcare. Examples of wasted expense: one death penalty case can cost up to $3 million. The average cost to house an inmate is $75K/year.
Well written and easy to read. Interesting. Had not thought about the impact of humans normal cognitive process on our legal system. What book lacked to me was a real action plan for reform.