Unfair

Adam Benforado is available for select speaking engagements. To inquire about a possible appearance, please contact Penguin Random House Speakers Bureau at
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Copyright © 2015 by Adam Benforado

All rights reserved.
Published in the United States by Crown Publishers, an imprint of the Crown Publishing Group, a division of Penguin Random House LLC, New York.

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Photograph on
this page
reprinted from “Believing Is Seeing: The Effects of Racial Labels and Implicit Beliefs on Face Perception,” by J. L. Eberhardt, N. Dasgupta, and T. I. Banaszynski, 2003,
Personality and Social Psychology Bulletin
29: 360–70. Reprinted with permission.

Photograph on
this page
(left) by Stuart Franklin/Magnum Photos.

Library of Congress Cataloging-in-Publication Data

Benforado, Adam.

Unfair : the new science of criminal injustice / Adam Benforado. — First edition.

    pages cm

1. Criminal justice, Administration of—Psychological aspects.

2. Discrimination in criminal justice administration—Psychological aspects. 3. Criminal psychology. I. Title.

   HV7419.B46 2015

   364.3—dc23

                                                      2014041693

ISBN 9780770437763

eBook ISBN 9780770437770

Cover design by Christopher Brand

v4.1_r2

a

FOR
B
ROOKE AND
M
IRA

The water in the vat was untroubled and deep.

It had been prepared earlier for the brothers, Clement and Evrard.
But they were still in the church, standing in front of the assembly, waiting like stalks for a breeze.

It was the winter of the year 1114. The days were getting shorter; the rain was coming to northern France.
Clement and Evrard, who were peasants, lived in the small village of Bucy, a few miles east of Soissons.

The charge was heresy.
That is why they now shifted barefoot before Bishop Lisiard, Abbot Guibert, and all the rest.
But the brothers were not the type of heretics who openly defended their false faith—who, though poison-tongued and cancerous, wore their treachery on their faces.
No, they were emissaries of the evil that “spreads secretly,” the evil that was “condemned to everlasting whispers”—a snake slipping through cracks in the community wall, striking feeble and unwary minds.
Into idle ears these heretics spewed their wickedness: Jesus' birth was not divine at all, marriage was a farce, baptisms of young children were void.
And in the shadows, with their bodies, they breached the laws of God and man.

As Abbot Guibert recorded, they did not set apart their cemeteries as sacred ground, refused to eat food produced by “sexual generation,” practiced homosexuality, and engaged in perverse rituals.
Indeed, rumor had it that their religious meetings were held “in underground vaults or secret cobwebby places” where wild orgies
took place and where any child conceived in the chaos was then made into bread and eaten “as a sacrament.”

Such were the men brought before Bishop Lisiard to answer for their crimes.

The brothers had been betrayed by their neighbors: a woman Clement had purportedly been brainwashing for months, driving her mad, and a deacon who had heard Clement make statements against the Church.

But these accusers now failed to appear.
And when questioned by the lord bishop and Abbot Guibert, the men “gave most Christian answers” and denied the charges against them, which presented a problem endemic to all systems of justice: a strong suspicion of guilt without solid evidence.

In twelfth-century France, however, there was a ready solution.

Following the celebration of Mass, the lord bishop and Archdeacon Pierre led Clement and Evrard to the vat.
As they appeared before the water, the lord bishop spoke out the litany and delivered the exorcism.
Tears rolled down his face.
And Clement and Evrard, seemingly moved, gave an oath that they were not heretics and had never followed, nor taught, gospel contrary to the faith.

It was at this moment that Clement was thrown into the water.

This was not some ritual cleansing. This was the critical moment in the adjudicatory proceedings and the most important moment in Clement's life.
This was the trial—“the ordeal of exorcised water”—and it all came down to buoyancy. Would Clement bob on the surface, or would he sink like a sack of stones?

As the ninth-century theologian Hincmar of Rheims explained, the man who “seeks to hide the truth by a lie, cannot be submerged in the waters above which the voice of the Lord God has thundered.”
Baptismal water was pure and would naturally reject the bodies of those who were infected by falsehood.
Murders, adulterers, and heretics would float; innocents would be enveloped.

An accused person like Clement would generally have been stripped of his clothes and bound with cords before being pushed into the pool.
According to Hincmar, the reason was twofold: first, to prevent the guilty man from cheating justice by placing weights in his clothes or pulling himself under, and, second, to allow the innocent man to be quickly drawn up before he drowned.
In some versions of the trial, the accused needed to sink to a certain distance—to the length of the hair on his head, for example—with a knot tied in the rope to assist with measuring.

In Clement's case, though, no knot was needed. All could see.
He “floated like a stick.”

To the men, women, and children who gathered at Soissons, this ordeal was no travesty: this was true, fair justice.
Here were the most esteemed and respected members of society—cornerstones of the religious hierarchy—presiding over the ordeal as part of the official sacred Mass.
And here was a neutral process that seemed to avoid the biases that came from other potential means of deciding cases.
Witnesses could lie and judges could bow to political pressures, but God's judgment was true and incorruptible.
In an era in which the divine permeated every aspect of life, the various hot and cold ordeals—fishing a ring out of a boiling cauldron, carrying an iron straight from the fire, or being plunged into a vat of water—would have seemed quite rational and quite fair.

To achieve the proper result, all-seeing God, who controlled the natural elements, would direct those elements to behave in an unusual manner: hot iron would fail to burn the innocent hand; cold water would prevent the guilty from sinking. So, if you
did
sink, that was an answer the community could accept.
With no dominant governmental authority to manage the conflicts of the scattered small communities of Europe through much of the Middle
Ages, the legitimacy of human action in matters of law was always contestable.
But godly action was not.

Moreover, with an ordeal like Clement's, the righteousness of the judgment was available for all to see and immediately understandable to a largely illiterate society. For people seeking order—and consensus—in a disordered world, and justice in an unjust time, the ordeal would have seemed a blessing: not only acceptable but the best possible way to settle disputes and clear up mysteries.
How else might a community assess concealed guilt when hard proof—concrete evidence, reliable witnesses—was lacking?
There was no apparent alternative.

Today, with nine hundred years of perspective, it is easy to spot the flaws in the system. In ordeals of fire and water, the mechanism of deciding guilt was not grounded in fact.
Innocent men and women could of course be burned by hot irons and boiling water. And what determined whether someone sank in a vat was largely a matter of the amount of air in the lungs and, more fundamentally, the percentage of body fat.
Women and heavyset men were naturally—and unfairly—at a disadvantage.

Even if the process had been valid, the ordeals were not administered with any type of true consistency. When were the suspect's answers under questioning good enough that the trial could be avoided altogether? How long did the iron have to sit in the coals? How bad did the hand have to look when it was unwrapped to be deemed clear evidence of guilt?

And for those of us living in Western democracies today, the idea of religious leaders overseeing criminal proceedings seems fundamentally misguided—as does punishing the crime of heresy at all.
What interest does society have in prosecuting those who decry the baptism of children “not yet of an age of understanding”?

Most glaringly, how strange to think you can look inside a
man's head and discover his blasphemous thoughts by tossing him into a pool of water! It verges on comedy.
In a scene from
Monty Python and the Holy Grail
, a village mob drags a purported witch before Sir Bedevere the Wise, who explains the process of adjudication as follows: both witches and wood burn, both wood and ducks float; therefore, if the woman weighs the same as a duck, she is most definitely a witch.
The joyous crowd rushes off to the nearest set of scales. We laugh because this is so plainly absurd. It is shockingly unjust. It is shockingly irrational.

But how will someone nine hundred years from now view our current system of justice?

The truth is 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. They will look back at our judges and juries and see biases that are just as obvious as the ones we now perceive in the bishops and abbots who presided centuries ago. They will look back at our criminal code and see laws as wrongheaded and illegitimate as the prohibition on heresy.
They will examine our processes and procedures—how strictly we followed them, how heartily we trumpeted them as bastions of integrity and accuracy—and laugh at our naïveté just as we laugh today at the mumbo-jumbo justice of Sir Bedevere the Wise. If there is a Monty Python of the thirtieth century, its members will write skits that look an awful lot like episodes of
Law & Order
.

We feel confident that we know our judicial system. We know why people commit crimes, how to identify the guilty, and what makes a good judge. And we know where we still have work to do. We acknowledge the rough edges, the lingering imperfections—the lying cops, racist jurors, lazy investigators, corrupt judges, biased witnesses, and self-aggrandizing lawyers—that threaten to unbalance our scales of justice.

Our intuitions are so ingrained that it's hard to imagine they might be wrong. 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. Even if we quashed all the familiar problems that can derail a case, even if our system operated exactly as it was designed to, we would still end up with wrongful convictions, biased proceedings, trampled rights, and unequal treatment. Injustice is built into our legal structures and influences outcomes every minute of every day. And its origins lie not inside the dark heart of a bigoted police officer or a scheming D.A. but within the mind of each and every one of us.

In this book I draw on new research from psychology and neuroscience to expose the hidden dynamics undermining our criminal justice system. What these insights reveal is surprising and counterintuitive, even deeply unsettling. Peering into the black box of the brain, scientists have discovered that we do not understand ourselves very well at all and are much less in control of our actions than we imagine. At the exact moments when we believe we are guided by reason and willpower, we are frequently propelled by automatic processes. Even as we feel that we are bending the environment to our ends, it is often the other way around, with seemingly insignificant elements in the world around us powerfully shaping our behavior.

Take our ability to accurately assess risk, which is at the heart of our legal system. We think we understand the factors that determine whether a cop draws his gun, where police departments and prosecutors allocate precious resources, how high a judge sets bail, and if legislators pass a tough new crime bill. We assume that the likelihood of an event and the seriousness of the consequences drive our appraisals, and that people with the same information will make the same risk calculations.

But a growing body of scientific evidence suggests that we are not the consistent, rational number crunchers that we suppose.
In one study, researchers asked two sets of experienced forensic clinicians to determine whether a particular mental patient with a violent history, Mr. Jones, ought to be released.
Both groups were provided with a “state-of-the-art assessment” by a respected psychologist.
The only difference was whether the psychologist chose to express the risk Mr. Jones posed to the public as a probability (“Patients similar to Mr. Jones are estimated to have a 20 percent probability of committing an act of violence”) or as a relative frequency (“Of every 100 patients similar to Mr. Jones, 20 are estimated to commit an act of violence”). One might assume—quite logically—that the choice is of no consequence: the information is exactly the same and easy to understand in both cases. Yet it had a huge effect on the experts.
Those who considered the risk in terms of 20 dangerous perpetrators out of every 100 were
twice as likely
to keep Mr. Jones confined in the mental hospital as those who pondered the 20 percent chance that he would engage in violence upon release.
When the researchers probed more deeply, they found that people had a pretty benign picture of Mr. Jones with his future dangerousness conveyed as a probability, but if it was expressed as a frequency, they immediately thought of “some guy going crazy and killing someone”—and that potent image made them see Mr. Jones as more of a risk.

The actual likelihood of the threat is often not what matters most.
If we have strongly negative feelings about something—like an assault by a pedophile—we will treat it as a significant risk regardless of how likely it is to occur.
A one-in-five-million chance and a one-in-five-thousand chance look exactly the same to us. And it's not just that we ignore probabilities; we can be insensitive to raw numbers as well.
Indeed, sometimes when more people are in peril, we may actually care less.
Mother Teresa was right: “If I look at the mass I will never act. If I look at the one, I will.”
Research suggests that you're significantly more likely to convince a lawmaker to support a new bill that will indefinitely detain certain sex offenders after they complete their sentences if you tell him about a specific child victim than if you explain that it will save a thousand statistical lives.
It's no coincidence that major pieces of legislation—like Megan's Law and the Adam Walsh Act—have been motivated by the murder of a single child.

We assume that assessing risk is an activity largely devoid of emotion, but much of the time our assessments are guided by intuitive feelings rather than hard facts. Fear can play a particularly important role.
And the problem is that we often fear things that are not in fact major threats while ignoring things that present a significant danger. We scour the online sex-offender registry, worried that our son will ride his bike by a predator's house on the way to the pool, but pay little heed to the danger of driving him instead.
Yet the risk that your child will be kidnapped and killed by a sexual deviant is as low as the risk that he will be struck by lightning, while car accidents and drowning are among the leading causes of death for kids.
The pedophile threat, though, taps into the very things that trigger fear: it seems uncontrollable, unfamiliar, and dramatic.
So we invest heavily in registries and other harsh measures, despite research suggesting that such efforts have no significant impact on rates of reoffending and, in fact, threaten our core values of fair treatment.