Book Review: Unfair

I’ve just finished Unfair: The New Science of Criminal Justice by Drexel University law professor Adam Benafordo. The reviews I’ve seen online have been positive. For example, the Boston Globe opines that the book “succinctly and persuasively recounts cutting-edge research testifying to the faulty and inaccurate procedures that underpin virtually all aspects of our criminal justice system.” And the book has attracted enough attention for Professor Benafordo to be interviewed on NPR’s hit show Fresh Air. This post briefly summarizes the book and then offers a few thoughts about it.

Summary. The book begins by describing the trial of two alleged heretics in 1114 by throwing them in water to see whether they floated or sank. The author observes that this system was flawed because “the mechanism of deciding guilt was not grounded in fact.” He then asserts that “our descendants will be no less surprised by the routine and systematic unfairness we tolerate today than we are by our ancestors’ trials by ordeal.”

The remainder of the book explores some of the ways in which Professor Benafordo believes that the current American criminal justice system is unfair, with the assistance of topical anecdotes and frequent references to social science research studies. The style is reminiscent of Malcolm Gladwell’s – Professor Benafordo comes across as a smart guy trying to make current criminal justice research digestible to the hoi polloi.

Among the problems he identifies are: the possibility that an officer may make a snap judgment about a crime or a suspect and then view the rest of the investigation through the lens of the initial judgment; the risk of coerced, false confessions; the inaccuracy of eyewitness identifications; courts’ reluctance to credit neuroscientific explanations for defendants’ behavior; prosecutors’ withholding of exculpatory evidence; and implicit racial and other biases among judges, jurors, and other participants in the criminal justice system. He’s also critical of harsh prison conditions and long prison terms.

The book is focused more on problems than on solutions, but it does offer some of the latter. It notes that eyewitness identification reform, for example, is underway in North Carolina and elsewhere. It argues for wider use of security cameras to prevent and to solve crimes. It proposes videotaping all interrogations from a third-party perspective rather than from the officer’s perspective, based on studies that suggest that “camera perspective bias” predisposes jurors to take the officer’s side when the camera is positioned to show only the suspect. Most radically, it suggests using virtual trials, where jurors watch on a computer screen as avatars of the judge, prosecutor, defense lawyer, defendant, and witnesses do their work. The avatars would not be any particular race or sex, so biases for or against certain classes of persons would be eliminated. And the proceedings could run on a slight delay so that when inadmissible testimony is ordered stricken, it could be prevented from reaching the jury. Obviously there are constitutional and technical concerns with such a proposal, but it is food for thought.

Analysis. Overall, I liked the book. It was short, interesting, and provocative. Professor Benafordo is a good writer and the book touches on many different issues.

On the negative side of the ledger, I found the book to be somewhat sensationalistic. Whatever the defects of our current system, it’s far from trial by ordeal, making the book’s opening seemed forced. And many of the anecdotes recounted in the book seem chosen as much for shock value as for their relevance to the point at hand.

Also, in the interest of readability and popular appeal, Professor Benafordo keeps his references to research studies brief. Unfortunately, that sometimes makes it hard for the reader to tell how the studies were conducted or how reliable their results are. (He does provide notes supporting each chapter, and has even more detailed references available online for readers willing to do some sleuthing.)

Finally, an aspect of the book that will appeal to some and not to others is that it focuses mainly on ways that defendants get the short end of the stick. There are a few exceptions, as when Professor Benafordo discusses what he views as the jury’s overreliance on defense experts in acquitting the Los Angeles Police Department officers charged with beating Rodney King. But for the most part, the book focuses on ways in which the system is unfair to defendants, not the prosecution. Whether that’s a feature or a bug may depend on your perspective.

Bottom line, I think the book will be of interest to many readers of this blog and I recommend it. If you’ll be in Chapel Hill sometime soon, let me know and I’ll lend you my copy.