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Unfair by Adam Benforado

Unfair: The New Science of Criminal Injustice - Adam Benforado

This is a thought-provoking critique of the American criminal justice system based on psychological research. It is more of an overview than a deep dive: in 286 pages of text (excluding the bibliography), the author discusses everything from snap judgments in investigations, to false confessions and erroneous eyewitness identifications, to the reasons some lawyers behave unethically, to misleading expert testimony, to judicial bias, to the workability of prisons. These are all important issues and the author, a law professor, has many interesting proposals to improve on the problems. Unfortunately, he undermines his message by failing to source his facts, leaving readers with no authority for his arguments; any lawyer should know better.


There is a lot of interesting material here: the studies showing how common interrogation techniques, such as offering leniency for a confession, induce students to falsely confess to cheating; the correlation between more stereotypically African features and longer sentences; the tendency of the public to view third parties as biased against their side (Republicans and Democrats both believe the Supreme Court leans to the other side, by approximately equal margins); the way the point-of-view of a camera can affect viewers’ opinion of events (when interrogations are taped, viewers are more likely to see them as coercive when the camera is above the suspect, and as non-coercive when it’s above the officer).


The author discusses a number of psychological shortcuts that can lead to ugly results in the justice system: for instance, “narrow bracketing,” in which if your experience is that, say, two-thirds of the claims of a particular type are valid, and you just granted two, you are more inclined to deny the next one to keep the numbers balanced. And there’s a good discussion of how people identify dishonesty: you really can’t tell through body language – at best you can tell someone is nervous, but in a high-pressure situation like a courtroom, this likely has more to do with the person’s comfort in that setting and ability to project confidence than their honesty.


The book also discusses the reasons for criminal behavior, which often have less to do with deliberate moral choice than one might imagine. There’s a fascinating story of a man who suddenly becomes obsessed with sex, collecting porn, molesting a young girl, and propositioning everyone – until a tumor is discovered on his brain and removed; then he’s fine until the tumor returns, at which point he starts up all over again. Brain damage may be a less isolated cause of criminality than one might imagine; apparently, while less than 9% of the general population has suffered a traumatic brain injury, around 60% of incarcerated people have. Less dramatically, physical environment also influences one’s actions: wearing a mask makes people more aggressive, while holding a gun biases people to perceive images as more threatening.


Rather than simply detailing problems, Benforado does have plenty of suggestions for change. Some of these are relatively small and seem like excellent ideas. For instance, officers should be trained in cognitive interviewing (asking few open-ended and non-suggestive questions) of witnesses of crime to avoid tainting their memories, while witnesses about to view a lineup should be told that the suspect may or may not be included (to prevent their simply choosing the one who looks most like the perpetrator). In fact, having lineups administered by a computer may be even better, to prevent officers’ unconsciously influencing a witness’s memory through their approval or body language.


Some of the suggestions are much more global, and I give Benforado credit for thinking big and outside the box. One intriguing idea is virtual trials: record the trial in advance and give jurors just the information, presented through avatars. This would eliminate biases based on physical appearance and performance, and allow a trial to be shown to multiple juries at little additional cost.


Meanwhile, the author shows discomfort with many aspects of the adversarial system, though his alternative proposal isn’t quite clear. He correctly points out that the procedural safeguards we build into the system in an attempt to prevent error often become ends in themselves, frustrating their original purpose. Take Miranda warnings for instance: if an officer fails to give them, a perpetrator’s confession can be excluded and therefore a criminal may go free, while on the other hand, judges rarely entertain the idea that a confession might be coerced once an officer has recited those lines – even if we’re talking about a highly suggestible suspect who was questioned for many hours, falsely told that the police had evidence against him, and promised leniency in exchange for a confession. And there’s simply not time, based on the many procedural safeguards built into our system of trials, for more than a tiny percentage of cases to be fully heard; the vast majority plead guilty, in a system the author sees as highly suspect. But what could we do instead? – it’s difficult to decipher Benforado’s ideas on this point, aside from idealistic notions of truth-seeking and vague references to Germany’s having a different system.


But the book does have its drawbacks. Rather than endnotes to which one can refer for specific facts and studies, the author simply includes a bibliography for each chapter, with no indication as to which of the dozens of works cited include which information. This shows off the author’s reading while offering no help to his readers. This is particularly unfortunate on the topics for which he provides only vague information: for instance, he tells us that solitary confinement alters the brain in observable ways, but not what part of the brain is affected, what this part does, and what changes are seen once prisoners are freed. Ultimately, the book leaves readers with the choice between taking the author’s word for his claims or doing their own research, starting more or less from scratch. This is an incredibly poor decision for someone who wants to profoundly change entrenched parts of officialdom.


Less damaging but also unfortunate is the fact that, while Benforado presents information in a clear and readable style, his storytelling is less than stellar. He begins each chapter with a few pages of introductory fluff, which is a great opportunity to tell compelling human-interest stories related to the topic at hand – but more often than not he squanders it. For instance, the chapter dealing with physiognomy begins with rambling about how people are fascinated by mugshots. Okay.


Finally, while the book’s portrayal of the justice system as almost medieval – snap decisions are based incomplete information and the gut feelings of those making them, without scientific basis and generally without oversight – is fairly accurate, in some ways the book does present an overly gloomy picture. I suspect some readers might be unduly horrified, not realizing that most criminal cases aren’t based on eyewitness identification by strangers or police pushing for a confession from whatever black or Hispanic man happened to be near the crime scene. Most people plead guilty because they are, and the evidence against them is good. This in no way excuses the miscarriages of justice that go on every day, but I hope readers don’t come away with the idea that courts and police produce utterly random results.


Overall, I’m glad I read this book: much of the information it contains is fascinating, and it’s presented in a clear and concise way. These are issues people should be thinking about. However, the lack of sourcing is a serious limitation; I can only hope it will be corrected in future editions.