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.
When I read “reluctance to credit neuroscientific explanations for defendants’ behavior” what came to my mind was the expansion of the belief science could physically determine criminal, or non-responsible behavior by something about the person’s body, and it be extended to screening of citizens using PET scans, genetic mapping genetic ancestry to potentially removing from the public those “damaged” individuals even before a crime is committed. The movies have long stereotyped the acne ridden, pox marked, big browed, narrow eyed, mouth breather who sways as he walks as the monstrous bad guy.
It wasn’t that long ago that most people were rural, lived on farms, were exposed to animal breeding concepts which predicted and valued animals by pedigree (genetics) and paid for and used seed selection to improve crops, thus from this hands on, practical experience they thought people (being animals) were born good or bad — were from good or bad blood, or were just ‘bad seeds.’ Pit Bulls produce Pit Bulls, not Labrador Retrievers, so don’t expect otherwise.
They had a point, a real world logic. Kings begat Kings, and race horses don’t come from the Outer Banks of NC. Hence, by that line of thought, if a PET scan shows a dark part of the frontal lobe, and thus excuses a criminal act, then why not take others with brain damage off the streets proactively?
The cutting edge of science is not so perfect either. Remember the cases where experts on blood splatter, hair analysis, even fingerprint identification erred. CSI-TV shows have potential jurors coming into court with false assumptions.
Justice is the exercise of the written law, yet the written law might not be fair, or right. The judgment in the courtroom is not science, but is more of an age old gear box encased by tradition with evolving logic and greased by common sense. Anyone looking at the jury, judge, opposing lawyers and witnesses thinking they are looking at a NASA space launch is bound for disappointment. Justice is man judging man with the authority given by the public. If that confidence is lost by the public, then justice will collapse and chaos or anarchy will prevail. You take care of yours and I’ll take care of mine, family vs family, with revenge fueling actions. There is a good bit of that going on in the mean streets of the ghetto, already, where being a witness makes it dangerous to walk out your own door. The good public withdraws.
The medical model of criminal justice has yielded “strange fruit”, e.g. the holocaust sanitariums and the drapetomania treatment centers of the old south. The German constitution requires the humane treatment of prisoners now, with better results at a lower cost. The “virtual courtroom” may appeal to some, but removing the human element could be a big step in the wrong direction.