Unfair

by Adam Benforado

  Once “the drunk” was identified as David Rosenbaum, however, things swung in the opposite direction. There were suddenly newspaper stories and official investigations of the emergency response. When the media and the police realized that the victim on Gramercy Street had been a reporter and editor at the most prestigious paper in the United States, when more than seven hundred people showed up at the memorial service—including Arlen Specter, Orrin Hatch, and Ted Kennedy—and when David Pryor, the former Arkansas senator, remarked that “the echo of [David’s] footsteps and the pounding of his noble heart will be heard for generations to come,” it became, quite simply, a different case.

  Indeed, with David in the role of the victim, the D.C. government was prompted to consider sweeping changes to emergency and police procedures. And prosecutors, now under great pressure to serve up justice, convinced Hamlin to plead guilty to the lesser charge of second-degree murder, in exchange for testifying against Jordan. Hamlin was sentenced to twenty-six years; Jordan received sixty-five after a first-degree conviction.

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  If Lady Justice swung her sword for David, why did she sit idly by for John as he moaned for help? The problem is not, as the playwright David Mamet once glibly suggested, that justice is also deaf; it’s that even as she genuinely believes in her blindness, her eyes are actually taking in quite a lot of information. And once she has a picture of you in her head, that picture has a profound impact on how she goes about her job.

  Recent research in psychology sheds light on this process and helps explain the central mystery of David’s case: how so many different professionals—police officers, firefighters, nurses, doctors, and EMTs—specifically charged with helping people and saving lives, made so many errors, from the second David was found lying on the ground to the moment he was transferred to the trauma team at the hospital. It isn’t a story of a few weak links. In the words of the D.C. inspector general’s sixty-nine-page report, prepared in the wake of the incident, there was “an unacceptable chain of failure.” What propelled responders to forgo established protocols, overlook obvious concerns, cut corners, and disregard evidence? The answer lies in how we assess a victim in the wake of a crime. The common assumption is that we gather information through our senses and then, after careful evaluation, reason our way to a complete picture of the person. We use that picture where it is relevant (for example, in coming up with a profile of a serial killer) and put it aside when it is not (determining how much effort to dedicate to securing the crime scene).

  In fact, we are not such cool and deliberate detectives; rather, we are masters at jumping to conclusions based on an extremely limited amount of evidence. The automatic processes in our brain (commonly referred to as System 1) quickly take in the scene and then reach a conclusion about the victim based on what is right in front of us, without considering what we might be missing. Ambiguity and doubt are pushed to the side.

  In certain circumstances, our more deliberative and effortful mental processes (System 2) can override those initial impressions—and raise the specter of uncertainty—but often, they do not. The less we know, the easier it is for us to produce a coherent story, and it is the consistency of the narrative that predicts how much confidence we will have in our assessment. The unfortunate result is that we may become overconfident precisely when we have limited or weak evidence.

  Consider the following two sentences:

  When an elderly woman gets on the train, Carl immediately gives up his seat.

  When an elderly woman gets on the train, Alex remains in his seat, reading his book.

  Which man is likely to come to the aid of a passenger having a heart attack? Easy, right? It is obviously Carl.

  But now look back at the sentences. They tell us almost nothing that would help us accurately forecast each man’s future actions. Carl might not have seen the woman at all; he might have given up his seat after suddenly realizing it was his stop, or to move away from a crying child. And Alex might have remained seated because there were many open seats on the train, or because someone else offered the woman a seat and she refused, or because his back was turned. We took a few bits of information and then quickly filled in what was missing, so that we had a coherent story that allowed us to divine the men’s characters and predict how they would behave. We do this hundreds of times a day.

  Before you finished reading about the events on Gramercy Street, your mind, too, was busy filling in the details, elaborating scenes and conversations, sizing up the characters, and solving the case. We all fancy ourselves expert sleuths, and we have the credentials to back it up: six Grisham novels, dozens of episodes of CSI, hundreds of news stories on murders and rapes. But just like the professionals responding to a 911 call, we often come to conclusions about the victim’s identity and the nature of the crime based on the limited—and largely irrelevant—information directly in front of us.

  Ask people to evaluate the academic aptitude of an elementary school student after playing them two video clips—one of her outside of school and the other of her taking an oral test—and the responses will shift based on the scenery in the first clip. When the student is shown in an urban, low-income setting, individuals view her inconsistent performance—getting some hard questions right and some easy questions wrong—and rate her ability as below grade level. When the exact same student is shown in a suburban, middle-class setting, they rate her ability as above grade level. Same girl, same performance, different conclusions. We hand out IQ points based on the size of her house and the number of trees in her neighborhood.

  We can see the influence of the immediate situational context on how people assessed David. Finding him lying on the sidewalk in her upscale neighborhood, Claude Pritchett described him as “dressed nicely and not unkempt.” Yet, three hours later, the Emergency Department physician described David, now slumped in a hospital hallway, as “very disheveled, unkempt, his hygiene wasn’t the best. He looked dirty. He looked like our typical alcoholic.”

  This also helps explain why the police officers didn’t give much thought to the possibility that the incoherent man lying on the sidewalk might have been the victim of a serious crime. The patrol service area that includes the 3800 block of Gramercy, with its generously spaced homes and landscaped yards, is one of the very safest in D.C. and had not recorded a single homicide the previous year. Although there were more than four thousand robberies in the forty-five patrol service areas in D.C. each month, David’s neighborhood averaged only two.

  In the mad dash to understand the scene in front of us and decide how to react, a victim’s clothing, haircut, skin color, glasses, and perfume can all serve as signposts. In David’s case, one of the most significant cues was the vomit on his jacket. When interviewed after the fact, almost every person—from the Pritchetts, to the firefighters, cops, and EMTs, to the hospital staff—brought it up. And it seems to have had an immediate impact on people’s evaluations of him by triggering one of our most powerful emotions: disgust.

  Disgust guides our lives to a surprising degree, altering our steps as we navigate the sidewalk (don’t step in that!) and steering us to certain seats on the subway. While different people experience disgust differently (interestingly, those with more conservative moral beliefs tend to be more sensitive), it’s a universal emotion. Disgust a Kazakh, Peruvian, Vietnamese, or your neighbor down the street, and chances are you’ll see the same telltale facial expressions: wrinkled nose, raised lips, open mouth. Disgust responses appear in kids at about the same age across cultures. In experiments, a two-year-old will generally eat what appears to be dog poop (actually a mixture of peanut butter and strong cheese), but a four-year-old will not.

  If your stomach turned as you read about feasting on feces, you are not alone—the mere thought of something disgusting can produce the effect. And, in fact, disgust can be directed at a whole bunch of things beyond the physical world of maggot piles, pus-filled sores, and rancid hot dogs. We cringe at the thought of h
aving sex with a pig, a child being beaten, or cannibalism at the Jamestown settlement some four hundred years ago.

  Many scientists believe that disgust evolved to help our ancestors avoid parasites and microbes that were transferred through physical contact, primarily with food. But it also proved useful for navigating our social worlds, telling us which people and actions were appropriate and which to avoid. As a result, today we see evidence of both “core” disgust (triggered by rotting meat, rat droppings, and the like) and disgust aimed at social offenses (a wealthy man stealing from a church collection plate) in almost all cultures. Both help us stay “uncorrupted” or “pure.” But because the same areas of the brain may be recruited for both responses, sometimes things get mixed up: what starts as core disgust can result in feelings of moral disgust and vice versa. The implications for how we assess other people are jaw-dropping.

  Imagine walking into a psychology laboratory to fill out a survey judging the appropriateness of various actions, like a friend lying on a job application, consensual sex between first cousins, or survivors of a plane crash killing and eating a mortally wounded fellow passenger. The desk you are asked to work at is sticky, and there is a plastic cup that appears to contain the remnants of a smoothie and a chewed pencil. Dirty tissues and greasy pizza boxes spill out of the overflowing trash can. If you are like most people, you would probably be a little annoyed and think that the university sponsoring the research should fire its cleaning crew. But surely the mess wouldn’t affect your answers on the survey—our sense of right and wrong, we assume, is fixed.

  Yet when scientists conducted an experiment along these lines, they found that the filthiness of a room (or, in another version, the smell of fart spray) made people’s moral judgments significantly more severe. Disgust at the lab conditions generated disgust at the starving plane-crash victims.

  Turning back to David’s case, we begin to see how this tendency might have come into play. The disgust that people felt upon smelling and seeing the vomit on his body may have caused them to keep their distance (remember the responding police officers who decided not to get involved, and the doctor who refused to work on David until he had been cleaned up). Assessing David’s injuries required close inspection, as did catching the clues that suggested a crime had been committed. No one who kept him at arm’s length was in a position to reach the conclusions that might have saved his life and quickly brought his attackers to justice.

  Just as critically, the vomit may also have led the firefighters, EMTs, police officers, nurses, and doctors to engage in moral distancing. The physical disgust they felt may have generated an explanation for David’s condition that involved lack of discipline and poor character—drunkenness—rather than another potential cause: a stroke, seizure, diabetes, head injury, or drug interaction. And once the ETOH label was attached, David was in trouble.

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  The labels we give victims can make a big difference in how their cases are handled. Is this a poor person or a rich person, a black man or a white woman, a retiree or an infant? It matters every step of the way, from the dispatch call up through the trial.

  Suppose David had not been the only one lying on the sidewalk when the emergency responders first arrived. Imagine that there was a ten-year-old girl next to him and that both she and David were in such critical condition that only one could be saved. If you were one of the firefighters, would you just flip a coin? Or would you choose to help one victim over the other?

  Despite what we say about giving equal respect to all victims, most of us would save the girl. A ten-year-old is at the peak of her perceived value, and participants in experiments involving tragic tradeoffs tend to choose saving her over both older individuals (like sixty-three-year-old David) and babies. Privileging the young seems to be grounded in an understanding that old people have had a chance to live a fuller life and that young people have more years left to contribute to the world. But clearly there is a limit: infants and toddlers have not had as much invested in them as their preteen counterparts, and their social relationships are not as significant, so people don’t perceive their deaths to be as costly.

  The greater value we place on young people’s lives carries through to another context: we are also more motivated to seek justice on their behalf when they are killed. When an older man is murdered, research suggests that police officers will be less driven to track down his killer—even in situations where the murderer did not choose his particular victim and put everyone at risk, as with a remotely detonated bomb.

  In David’s case, though, his age may have been far less damaging than another label patted down on his chest as he was transferred from the firefighters to the EMTs to the hospital staff: alcoholic. In most people’s minds, being addicted to drugs or alcohol is not like having an aneurysm or being hit in the head with a pipe by a stranger. It seems “chosen,” and that makes it much harder for us to want to help substance abusers. When researchers had people assess a fictitious person infected with AIDS, participants were significantly more sympathetic to the man when they were informed that he’d contracted the disease through a blood transfusion than when they were told that he’d gotten the virus as a result of shooting up.

  Compounding the issue is that once David was labeled an alcoholic, it was more likely that he would be seen as morally disgusting, even by those who didn’t notice the vomit. This is often the case with “outgroup members”: in different times and places, women have been treated as unclean, Jews likened to cockroaches, Gypsies characterized as disease-ridden, and gay men and lesbians reviled as the scum of the earth. Such associations can be particularly damaging because moral disgust is linked to dehumanization.

  In one demonstration, people reported strong reactions of disgust after looking at images of homeless people and addicts, which aligned with observed brain activity in the insula and amygdala. More interesting, though, was what wasn’t activated: the medial prefrontal cortex, which is involved in the assessment of people and social interactions. It lit up when participants looked at photos of Olympic athletes, middle-class Americans, and disabled people. But for those viewed as neither warm nor competent because of their perceived moral failings, there was comparatively little brain activity, akin to the pattern seen when people looked at an overflowing toilet or vomit. Passing a homeless drunk, we do not see a human being with a mind, feelings, needs, and ideas; we see him as if he were a mound of rags and trash, and that influences how we treat him. A pile of garbage can be left in the hallway for hours; it doesn’t merit a police investigation; it doesn’t need to be handled gently as it is lifted from the sidewalk. The dehumanization is all the easier when the victim lacks a name and cannot communicate, aside from the occasional moan.

  Beyond affecting how we treat a victim, the identity we assign also influences how we answer the question “What happened?” In one classic experiment, researchers discovered that they could alter the way people judged the culpability of a rape victim simply by changing how she was identified. Given that our law eschews such distinctions, that was a surprising finding, but the truly astonishing part of the study was in how the identity mattered. When the scientists described the victim as “a virgin” or “a married woman,” she was viewed as more responsible for her rape than when she was described as “a divorcée.” Take a moment to ponder that: the victims seen as most socially respectable were assigned more blame for the sexual assault they experienced than the victim viewed as least respectable.

  To unlock the mystery, we need to understand our true motivations, in particular our drive to see the world as a fair place where people receive their just deserts. When confronted with an example of a seemingly “good” person, like a virgin, suffering a terrible outcome, we experience a strong dissonance. And we eliminate that discomfort—and maintain our perception of justice—by finding fault with the victim. We trick ourselves into thinking that she must not be that innocent after all. She must have done something that contributed to t
his bad event.

  A former co-worker of my wife’s was recently shot in the neck as he walked home from watching Monday Night Football at a bar a couple of miles from where we live in Philadelphia. It was horrible, shocking news, and my immediate reaction was to find some way to explain it away by identifying a flaw in his behavior that night. He shouldn’t have walked home so late—that was courting trouble. He must have resisted giving the robber his money; why else would the guy shoot him? I couldn’t face up to the truth: that there are dangerous people looking for victims at all hours of the day who will pull the trigger before you even have a chance to reach for your wallet.

  What is surprising about this tendency is how robust it is: I think about these things for a living and I still didn’t realize what I was doing until my wife pointed it out. Indeed, the power of the dynamic can lead us to blame even the most innocent of victims: children. When charges of child sex abuse were made public against the former defensive coordinator for Penn State football, Jerry Sandusky, one might have expected a uniform outpouring of sympathy for the victims, but that’s not what happened. Penn State students rioted after the firing of Joe Paterno, the head coach, who had failed to stop the abuse after being told directly about an incident in which Sandusky was caught raping a ten-year-old in the locker-room showers. Another victim, who courageously came forward to recount assaults by Sandusky that started when he was just eleven or twelve—and is credited with initiating the investigation that eventually led to Sandusky’s imprisonment—was so bullied in the aftermath that he had to leave his high school.