Unfair

by Adam Benforado

  Former New York supreme court judge Frank Barbaro stands as a prime example of how to interrogate one’s instincts and decisions. Everything is stacked against it, but Barbaro found a way: “I had a practice…that whenever I made a legal decision, I never let it lie. I ran it through my mind again.” There was one case in particular that he kept mulling over. In October 1999, the defendant, Donald Kagan, had waived his right to a jury trial, putting his fate entirely in Barbaro’s hands. Kagan claimed that he had acted in self-defense when he shot and killed Wavell Wint outside a Brooklyn movie theater. But Judge Barbaro convicted him of second-degree murder and a weapons charge and sentenced him to fifteen years to life.

  Although it had been more than a decade, Barbaro told his wife, Patti, “I really feel I need to revisit this case. I need to get the transcripts. I don’t feel comfortable with this. It’s been haunting me.” And when he pored over the record anew, he was “absolutely horrified”: “It was so obvious I had made a mistake. I got sick. Physically sick.”

  He realized that his own background and experience as a vigorous civil rights advocate had colored his treatment of the case: “When the trial began, I was absolutely convinced that Donald Kagan [who was white] was a racist and was out looking for trouble and fully intended to kill Mr. Wint [who was black].” That frame had caused him to overlook evidence that suggested that Kagan acted in self-defense.

  Revisiting the facts, Wint now appeared to have been the aggressor. It seemed Kagan had shown his gun only to ward off a drunken Wint, who’d tried to rob Kagan of his gold chain. Wint’s friends had dragged him away, but he’d fought them off and gone right back into Kagan’s face. When Kagan pulled his gun a second time, Wint went for it. In the scuffle, the gun fired into Wint’s torso. In December 2013, fourteen years after Kagan had been convicted, Judge Barbaro took the witness stand to claim that his own verdict should be overturned: “I believe now that I was seeing this young white fellow as a bigot, as someone who assassinated an African American….I was prejudiced during the trial.”

  It is almost unheard of for a judge to admit that bias led him to err at trial. And it took real courage: the admission not only revealed an awful mistake—his mistake—to the world, but also opened him up to vicious attacks from prosecutors who portrayed him as a feeble-minded old man. But it seemed to Barbaro that the only way forward is to be fearless about looking back: “[T]he legal system should become very sensitive to the question of have we done justice? Have we made a mistake? And that’s what I’m trying to do now.”

  PART III

  Punishment

  9

  AN EYE FOR AN EYE

  The Public

  More than five hundred citizens of Falaise had come to the execution. They assembled around the town scaffold, where the Vicomte de Falaise himself presided over the proceedings.

  Earlier, the accused had been tried and convicted of a vicious crime: savagely biting a child in the face and arms. And though the child had subsequently died, there was no expression of remorse at trial, no apology to the family. Indeed, the guilty party had not spoken a word since being taken into custody, and she said nothing when a harsh sentence was handed down: she was to be given injuries that matched the child’s—wounds in the head and arms—before being garroted and hanged.

  The crowd watched with eager eyes as she was brought up the scaffold for all to see. She had been dressed in men’s clothes, and a special executioner had been brought in from Paris. It was 1386, and the population of northern France expected a show. But still, the condemned refused to speak.

  As the last preparations were made, the assembled men and women waited for the final act. It was, the Vicomte must surely have thought, a righteous punishment for an atrocious act, and after the executioner had done his work and the body of the felon hung limp, he ordered a fresco of the scene painted in the Church of Holy Trinity in the town. When, some three decades later, Henry V and his British compatriots destroyed much of the church, the people of Falaise came together to have the fresco repainted, where it remained for more than four hundred years.

  Though the fresco has not survived—it was whitewashed by the church in 1820 during a renovation—today we know for certain why the condemned never spoke.

  She was a pig.

  —

  The events at Falaise were far from an anomaly. Trials and punishments of animals were common for centuries. Judicial proceedings were brought against rats and locusts that infested villages and destroyed crops. Mastiffs were guillotined for assaults. Murderous bulls were seized, tried, and convicted. Horses were burned by court order for their transgressions.

  The prosecution of animal crimes was not just a matter of backwoods folk practice; it was written into legal codes and religious sources. It was official and sanctified. There were processes and procedures to be followed. In some cases, lawyers were even appointed to represent the accused.

  According to Plato, in ancient Greece, “If a beast of draught or other animal cause homicide, except in the case when the deed is done by a beast competing in one of the public sports, the kinsmen shall institute proceedings for homicide against the slayer; [and] on conviction, the beast shall be put to death and cast out beyond the frontier.” The trial was to take place not in some country barn or nameless field but in the Prytaneum of Athens, the social and cultural center of society.

  Likewise, by the mandate of the Old Testament, “If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit [that is, not held responsible].”

  Many of the recorded examples of animal prosecution and punishment come from the European subcontinent, but there is evidence from all over the world. A nineteenth-century ethnographic report from India, for example, recounts how, among the Kookies, “if a tiger even kills any of them, near a village, the whole tribe is up in arms, and goes in pursuit of the animal; when, if he is killed, the family of the deceased gives a feast of his flesh, in revenge of his having killed their relation. And should the tribe fail to destroy the tiger, in this first general pursuit of him, the family of the deceased must still continue the chase; for until they have killed either this, or some other tiger, and have given a feast of his flesh, they are in disgrace in the village, and not associated with by the rest of the inhabitants.”

  It is tempting to write off these acts as isolated holdovers from an earlier, more barbaric time, when people punished out of vengeance. We think we know what motivates us to punish now. We punish to deter would-be offenders and incapacitate dangerous people. And, in general, we punish only those individuals who can control themselves and are smart enough to know better. We are fair and just, after all.

  With our modern outlook, we see where the historical examples fell short. An ox lacks many of the characteristics that our justice system claims are necessary to find an entity worthy of blame and punishment: the ability to appreciate the moral wrongness of its behavior, to act with bad intent, and to conform to rules. To suppose otherwise is to engage in “superstition”—as a 1916 Tennessee court put it, in the context of a fatal wagon accident, “The implication that the cart or the ox drawing it…[i]s morally affected for having caused the death…[is] repugnant to our ideas of justice.” An oxcart can cause a terrible harm, but to consider the ox to be a moral agent of any kind is magical thinking—primitive foolishness long since rejected by modern society.

  This story of twentieth-century enlightenment, though, is dubious. At the same time that the Tennessee court was offering its pronouncement, the citizens of neighboring Kentucky were gearing up for a series of cases that seemed quite in keeping with the past.

  In 1918, Kentucky had passed a law abolishing “murder trials” for dogs accused of killing sheep. But the courts were slow to learn new tricks, and over the next decade a number of dogs were prosecuted.

  When Bill, a collie, was “charged with being a dog of vicious character,” in the winte
r of 1926, the Associated Press was there to report the story:

  “We, the jury, find the defendant guilty as charged,” was the instructed verdict returned by a jury here yesterday in the case of the State of Kentucky versus Bill….

  The death sentence was imposed by County Judge J.W. Pruitt, and Bill was legally executed.

  The dog was brought into court by the husband of his owner, Mrs. Sophia Stone.

  Witnesses testified as to Bill’s character prior to his attack on a neighbor’s daughter, the cause of the trial.

  Within a few minutes after the passing of sentence, Bill was electrocuted. His head was sent to a Lexington laboratory for examination.

  This was not a farce designed to amuse the electorate. This was justice—the same justice that an accused man would receive. Which helps explain why two years later, W. C. Hamilton, the commonwealth’s attorney, would tell the New York Times that a German shepherd with the slightly more aristocratic name of Kaiser Bill must be tried just as any other murderer would be.

  Kaiser Bill would fare better than common Bill at court. Thanks—perhaps—to his royal moniker, he was able to get a more effective defense attorney. And although convicted three times and sentenced to death three times for killing sheep, he was eventually freed by the Kentucky Court of Appeals. Interestingly, it was not the absurdity of a murder trial for a dog that led Kaiser Bill’s owner, Mrs. Henry Gay, to promise that she would spend “every cent” she had and appeal up to the Supreme Court if necessary to prevent the execution. It was, she explained, because he was innocent of the crime.

  We would like to believe that we have finally achieved a modern, enlightened approach to justice—punishing only those with “guilty minds,” and not because we like it, but because we must protect society. But even today our basic instincts bubble to the surface.

  We, too, seem to feel vengeful toward animals from time to time. A surfer is dragged underwater off the coast of Australia, and we demand that the protected legal status of great white sharks be lifted so that they may be killed. A grizzly bear attacks a hiker in Yellowstone National Park, and we conduct a full investigation, reconstruct the crime scene, match the DNA, and execute the animal.

  Occasionally we even feel the urge to punish inanimate objects. Be honest: Have you ever wanted to get back at your computer for losing a file or freezing up at a key moment? Have you kicked the chair that stubbed your toe?

  And we sometimes take pleasure in the pain and suffering of those who have harmed us—bullies, pickpockets, terrorists—even when that misery does nothing to make us safer in the future.

  What actually drives us to punish? It’s not what we think.

  —

  When it comes to morality and punishment, we feel like we are rational deducers. If I ask you whether it is wrong to kill and eat your pet dog, you have an immediate response: of course! And when I press you on why it’s wrong, you’re quite capable of giving me reasons. But did those reasons lead you to that conclusion, or did you have a gut instinct that you then justified?

  The best available evidence suggests that although many of our decisions reflect deliberation and reasoning, our moral compass often directs our behavior beyond our conscious awareness. In one famous experiment, people read descriptions of behaviors that are generally viewed as immoral, like two siblings having sex, and then told researchers what they thought. The trick was that the researchers carefully tailored the details of the scenarios to eliminate obvious reasons to object to the conduct. In the incest scenario, for example, the brother and sister were adults, used contraception, freely consented to the act, and experienced no resulting negative feelings. In addition, the incest never occurred again and was never disclosed. Study participants were quick to conclude that the sex was wrong, but they struggled to explain why when the experimenter pointed out that their grounds for objection (for example, that a baby with a genetic defect might be conceived) were nullified by the provided description (effective birth control was used). Even when they ran out of explanations, the participants did not change their opinions: around 80 percent clung to the idea that a wrong had been committed.

  This work echoes a theme we’ve seen over and over again: although we have the capacity for careful analysis, we are not always the dispassionate, objective, and rational adjudicators we imagine ourselves to be. But it goes further, showing that none of our judgments are safe. Even our moral decision-making can be (and often is) guided by heuristic processing—quick, automatic mental shortcuts—rather than reason. In these moments, we are morally “dumbfounded.” We arrive at a destination without knowing what guided us there, but with a keen ability to invent a plausible story to explain and justify our journey.

  Psychologists, however, have the tools to expose our route. When we engage in moral reasoning, we do not do so randomly. Patterns emerge if we look at a large number of people confronted with the same situation.

  Take the decision of whether and how much a young man (let’s call him David) should be punished for trying—but failing—to poison a chess master competing against him in an important competition. There are several potential rationales for punishing David. We might conclude that he is dangerous and want to incapacitate him so that he cannot kill anyone else. Or we might decide to punish David as an example, to deter other would-be poisoners from trying anything similar or to encourage David to change his own behavior. Or we might punish David simply because we feel that those who commit intentional wrongs ought to be given their just deserts—payback in proportion to the gravity of the offense.

  When asked, people tend to focus on forward-looking, utilitarian considerations: they say they are driven to punish David in order to avoid harm in the future. But these self-reports don’t tell us which motives are actually at work because, again, people often aren’t aware of what’s really guiding them. Could retribution—a hidden desire for payback—actually be playing a part?

  Regrettably, that question is hard to sort out in experiments, because the elements that are likely to influence our desire to incapacitate a criminal or deter other would-be offenders—like the severity of the offense or how intentional it was—are also likely to influence our desire for retribution. If people are told that instead of trying to murder the competitor, David only tries to make him sick, they should be less motivated to disable him from acting again or deter others who might try something similar because the potential future harm is reduced. But people should also feel less retributive toward him: trying to make someone sick just doesn’t call out for payback the way attempted murder does. So varying the gravity of David’s crime does not allow us to isolate retribution as a distinct motive.

  That was exactly the dilemma that led University of Pennsylvania psychologist Geoff Goodwin and me to try a novel experimental strategy: studying the punishment of animal offenders rather than humans. When we hunt down and kill a shark that has attacked a swimmer, we can’t fool ourselves into thinking that the other sharks are somehow able to learn of the death, comprehend that it is punishment for killing a beachgoer, and then alter their behavior in the future to avoid similar punishment. So we can effectively take deterrence off the table as a potential motivation. Eliminating the possibility that our drive to punish comes down simply to a desire to incapacitate dangerous agents is more straightforward: we need only ensure that the perpetrator will be fully incapacitated regardless of what we choose to do.

  Imagine two scenarios. In one, a shark attacks a young girl playing in the waves; in the other, a shark attacks a forty-eight-year-old pedophile. The shark has been hunted down and condemned to death by the authorities, and the only question is the method used to kill it. How much of a numbing agent should authorities give to the shark so that it does not feel any pain as the fatal poison does its work?

  If your motivation is ensuring the future safety of the beach, the identity of the victim should not affect your answer, since the shark is going to be killed—that is, rendered unable to harm anyone
in the future—no matter what. But your answer should change if you are motivated by retribution, because killing an innocent little girl is seen as a worse harm than killing an adult sex offender and thus would require a harsher response. Sure enough, that’s what Geoff and I found: people provided more of the painkiller to the shark that killed the pedophile than to the shark that killed the girl.

  We can alter the types of animal perpetrators and we can change the circumstances, but the effect holds. People are driven by retribution to punish attacking sharks, oxen, and dogs in ways that are not significantly different from how they are driven to punish human offenders guilty of comparable misdeeds.

  On a purely rational level, it makes sense that the only reason we’d hunt down a shark that killed a surfer is to ensure the safety of the beach, not because we think the shark somehow deserves to be brought to justice and punished. But our true intentions are revealed in the data—findings that align with research by other scientists showing that there is often a disjunction between the punitive rationales that people give and their actual motives.

  Indeed, there is a growing scientific consensus that it is a desire for retribution—not deterrence or incapacitation—that has the strongest influence on why we punish. This has led some psychologists to suggest that when some harm—say, a murder—has been committed, the motive to deliver payback to the perpetrator operates as a sort of automatic default. In their view, this is only sometimes overridden by a more deliberate reasoning process focused on how punishing the culprit will influence potential offenders and provide for a safer environment.

  Though we are often unaware of its influence, our basic drive for retribution can create serious problems, undermining the laws we’ve carefully crafted over centuries to balance public safety, protection of the innocent, and fair treatment for the accused. We’ve worked, for instance, to eradicate punishment that turns on chance—whether a bullet happens to hit its intended target or the wall next to him, whether the victim of a pipe bomb turns out to be a movie star or a homeless person. And we’ve tried to construct a rational system for distinguishing between those who are acceptable targets for punishment and those who are not. But these protections can become meaningless in the face of our strong drive for payback.