Unfair (31 page)

Even stronger evidence that American innovation is possible comes from new experiments in Pennsylvania and elsewhere that divert offenders into mental health programs, restrict inmate isolation, and provide transitional housing.
In just the last five years, some states, including Mississippi and Colorado, have drastically cut their solitary populations, with encouraging results.

And, in fact, it is our unique culture that ought to propel reform, not stymie it.
For a country that trumpets its commitment to
freedom as exceptional and so willingly accepts risk in the name of protecting fundamental liberties, our maximally coercive and restrictive approach is baffling, even ludicrous.

We will fight tirelessly to protect the rights of those who spew hate in the public square, stockpile weapons capable of wiping out classrooms of children, and flood our airwaves with lies to sway elections, but we draw the line at permitting a man convicted of stealing videotapes a door to his toilet, the chance to spend a night with his family, or the experience of preparing his own dinner in his own shirt. If ensuring freedom for those who may harm us is worth the risk when the costs are high, that must certainly be the case when protecting their rights leaves us safer.

Shortly after I became a law professor, I received a jury summons. I knew that law professors rarely make it onto juries; attorneys regularly strike them out of a fear that they will dominate the jury's decision-making—and also, I hear, because no attorney wants to feel like she is back in law school, with a professor analyzing her every word. However, I held out hope that I might pass through the gauntlet of background questions and find myself among the chosen twelve.

The first step was to fill out a juror information questionnaire with demographic information and then answer some “yes/no” questions. “
Would you be more likely to believe the testimony of a police officer or any other law enforcement officer just because of his or her job?” “
Would you have any problem following the Court's instruction that the defendant in a criminal case does not have to take the stand or present evidence, and it cannot be held against the defendant if he or she elects to remain silent or present no evidence?” “
Is there any other reason you could not be a fair juror in a criminal case?”

If you checked “yes” for any of the boxes, the judge asked you some follow-up questions. For example, if you indicated that you were more likely to believe the testimony of a police officer, he explained
to you that your job as a juror required you to treat every witness the same regardless of his or her position, race, gender, or the like. Then he asked whether you still thought you would have a problem being impartial. Everyone who had checked the “yes” box on that question changed his or her answer to “no.” The judge was satisfied, and we moved on.

Many people would view this interaction as a perfect example of what works in our criminal justice system. Here, it would seem, we have not put our heads in the sand—we've acknowledged that there are prejudices certain jurors bring to court, and we've directly addressed them. We haven't shied away from asking awkward questions, and we've followed up to make our expectations clear. Just as important, we've gone big: every jury in every criminal case is taken through the screening. Even if they don't make it onto a panel, those in the jury pool leave with an understanding of what impartiality means and how to achieve it. Isn't this meaningful, honest progress?

In fact, our approach to juror screening provides a good illustration of precisely what we are doing wrong in our quest to eliminate unfairness from the law. It represents the first of three serious challenges we face in realizing science-based reform.

The problem with our questions and instructions isn't the underlying intention to ensure neutral and objective justice, nor is it the general formula offered to accomplish this worthy goal: define bias, screen for bias, correct bias. Both would seem to be quite in keeping with the spirit of this book. The trouble comes in the details.

While we purport to address bias, what we actually do is reinforce a false narrative of what bias is, where it comes from, and how it can be remedied.
And this puts us in a worse spot than if our system took no position on bias at all.

Take the matter of introspection. There's a wealth of research suggesting that many biases can't be detected through soulsearching.
And while it's one thing for us all to walk around believing that it's possible to self-reflect and identify all of our hidden proclivities, it's quite another thing to have the legal establishment confirm that intuition. Unfortunately, that is exactly what many of our rules and procedures do.

In the Third Circuit, for instance, jurors are asked questions to determine if they “have any beliefs, feelings, life experiences, or any other reasons that might influence [them] in rendering a verdict.” Does the fact that the defendant was born in Guatemala matter to you? Would you discriminate against someone based on the color of his skin? As a juror, you think about the person you are—someone who believes deeply in equality—and you answer, “No, of course not.” You know you're not racist. Case closed: there is no threat of bias toward the Hispanic defendant.

What's so damaging about this is not just that a juror may end up mistakenly believing that he's capable of objectivity, but that by weighing in, the Third Circuit stacks the cards against addressing the scourge of implicit racial bias. Now, to enact reform, we must overcome not only people's inherent skepticism but also the fact that they have been told repeatedly that such bias does not exist: if you know you are completely egalitarian, you cannot discriminate.

The same thing happens when our legal system bolsters the myth that being impartial is simply a choice. Over and over, during the trial process, jurors are instructed to switch off their irrelevant thoughts, emotions, and beliefs. “
Do not allow sympathy, prejudice, fear, or public opinion to influence you,” Third Circuit jurors are told. “You should also not be influenced by any person's race, color, religion, national ancestry, or gender.”
Likewise, whenever the judge sustains an objection, “you must disregard the question or the exhibit entirely. Do not think about or guess what the witness might have said in answer to the question; do not think about or guess what the exhibit might have shown.”
And if the judge orders evidence to be stricken or removed from
the record, “you must not consider [it] or be influenced [by it] in any way.”

Knowing how little control we have over the many automatic processes in our brains, such directives seem almost laughable. But this is no farce: these are the instructions that guide those participating in our legal system every single day.
Out of thin air, the Third Circuit has conjured up a magical remote control for the brain, allowing jurors to erase, pause, and mute on command.

As amazing as our minds actually are, our legal rules, regulations, interpretations, and instructions make them out to be many times as impressive. To hear the law tell it, we are supermen and wonder women, able to rise above our prejudices, see through lies, and recall past events with crystal clarity. Every juror and every witness in every case is encouraged to have faith in his or her basic intuitions. Every judge on every court has been told that judicial bias can be controlled simply by making good choices. And every police officer and prosecutor has been trained to avoid misconduct with the same mantra of moral integrity through self-discipline. So, we vanquish our misgivings. Yes, we are able to set aside our political beliefs to decide this case. Yes, we are 100 percent certain that this man was the perpetrator. Yes, in carrying out our duties, we will treat every victim as equally worthy of respect.

Being aware of our natural limitations isn't a cure-all. But it's a necessary first step. As we saw when Judge Frank Barbaro revisited a decision he'd made years earlier: doubt is the friend of fairness. Without it, you cannot convince anyone that they really do have it wrong or that change is urgently needed. We'll need to go further, though, to overcome the second significant threat to progress, reexamining the basic framework for protecting the public from mistreatment by the government that we've constructed over centuries.

There is no question that the way in which cops, prosecutors, and judges exercise their ample discretion has an enormous impact on
whether private citizens receive justice or injustice. In addressing this concern, the law has stuck to the notion that police officers, district attorneys, and judges make decisions in a rational, conscious way. So, to ensure proper behavior, it all comes down to establishing robust rules that clearly spell out what is permitted and what is not, and that provide incentives for following protocol. Most cops, D.A.s, and judges then toe the line, and the few wayward individuals who don't can be culled from the herd. This has been the model in the United States for many decades.

When significant injustice has come to light, our instinct has been to turn to our Bill of Rights and reaffirm our commitment to fair processes and procedures.
In the 1960s, for instance, as attorneys and activists drew attention to police abuse of suspects, the Supreme Court articulated a set of precise constitutional constraints on law enforcement officers.
Faced with the specter of coerced confessions leading to wrongful convictions, the justices established that, prior to being questioned, a person in custody must be told “that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” The so-called
Miranda
warning has become a standard feature of cop shows, but there are now numerous other process-oriented rules that govern how police officers, prosecutors, and judges interact with the public.

In recent decades, law professors, lawyers, and judges have battled tirelessly over the minutiae of these regulations.
Does the Constitution's prohibition on unreasonable searches bar a police officer from squeezing a bus passenger's canvas bag or looking at files on a home computer after a houseguest says it's okay? Can a person invoke his right not to incriminate himself in refusing to disclose his name to a police officer?

The result of these efforts is a thicket of extremely nuanced procedural protections.
In the case of
Miranda
rights, for example,
it is now settled that the privilege against self-incrimination must be invoked by the person being questioned.
If the police begin to interrogate you, you must clearly claim your rights—if you don't, what you say can be used against you in a case.
Likewise, the Supreme Court has stated that you have no right against self-incrimination if you are not under arrest.
If the police ask you to come down to the station to answer a few questions and you go, you can't then decide you don't want to answer one of their questions without risking that your refusal will be used as evidence of your guilt at a later trial.

Do all of these thorny branches keep the legal establishment in check? The reality is that our procedural hedge offers a false sense of protection.
Far from ensuring our goal of substantive justice, our rules of process may actually undermine it.

For one thing, many of the procedural rules do not actually constrain officers, prosecutors, and judges very much at all; they only appear to do so.
The Supreme Court's handling of peremptory challenges is a good example.
Allowing counsel on both sides to strike a certain number of jurors prior to trial without having to provide justification was meant to protect the integrity of the system—to allow attorneys to use their instincts and experience to identify subtle, hidden prejudices that might corrupt the verdict.
But in practice the rule was often used to
introduce
bias: for decades, attorneys disproportionately excluded certain groups, based on their gender or the color of their skin.
Facing significant criticism, the Supreme Court finally decided to address the problem, barring peremptory challenges based solely on the race of the juror and forcing attorneys to provide a race-neutral reason for excluding a juror if challenged by the opposing side. A deep societal value was under threat, so the Court fashioned a procedural remedy to tighten the discretion enjoyed by attorneys.

Many cheered this decision as a victory for the bedrock principle of nondiscrimination and for the right of citizens to serve as jurors and be tried by a representative group of their peers.
Unfortunately,
it has not been much of a constraint at all.
The problem, as Justice Thurgood Marshall—the first African American appointed to the Supreme Court—foresaw, is that “any prosecutor can easily assert facially neutral reasons for striking a juror, and trial courts are ill equipped to second-guess those reasons.” Today, in many instances, all that a prosecutor has to do to strike a black person from a death-penalty jury is to come up with a justification that's not explicitly about race. “
The juror worked as a plumber and I'm concerned that he will be biased in favor of the defendant who also worked in the service industry” or “He said that he only made it through the eighth grade and I'm afraid that the complexity of the case may be beyond his capacities” or “She was chewing gum and did not seem to be paying attention to the questions being asked”—any of those will do.
It need not be persuasive or even plausible.

How are judges to sort out whether the explanation is mere pretext? Members of the judiciary are rarely equipped to make such determinations.
Experimental research involving practicing attorneys and students reveals that although race influences peremptory challenges, people typically justify their actions in race-neutral terms, which makes it impossible to tell whether race is the reason a juror has been excluded. And since racial biases often operate at an implicit level, the lawyers themselves may not even know.

As a result, in many areas of the country, it is hard to see progress.
Between 2005 and 2009, prosecutors in Houston County, Alabama, struck approximately four out of five blacks in capital-case jury panels.
About half of the resulting juries were all white, and the other half had only a single black juror.
Despite all of the effort put into fashioning the proper procedural framework, we have not in fact dealt with the core problem of discrimination.

And important though it is, the failure of the peremptory challenge is just one example of a much broader phenomenon: we expend so much energy battling, reforming, and strictly enforcing
our procedural protections that we lose sight of the fact that they are merely a means to an end. A judge will let you off of your shoplifting charge if the police stepped into your home and seized evidence without a warrant, but a court will rarely intervene in the obviously unjust situation of a man being sent to prison for the rest of his life for stealing a few DVDs. And a court will almost never overturn a sentence on the grounds that it is inherently wrong for someone to face the threat of gang rape while under the sole control of the state.