Unfair

by Adam Benforado

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  To hold someone responsible for a crime under ancient English law, all you had to prove was that the person committed a “bad act.” Roger murdered Charles with an ax? Case closed. But starting in the thirteenth century an additional requirement beyond the actus reus emerged: proof of mens rea. Did Roger possess a culpable state of mind when he drove that ax into Charles’s skull? If not, Roger was worthy of neither blame nor punishment. Voluntarily swinging the ax that led to Charles’s death did not in itself make Roger criminally liable—a court needed to know what Roger was thinking, intending, and understanding in the moment. Was he of sound mind, or did he suffer from a severe mental illness that prevented him from comprehending the nature and consequences of his actions? Was it Roger’s purpose to kill Charles, or was he attempting to fell a tree when the ax accidentally slipped from his hand? The prudence of asking these questions seems obvious to us today. As the esteemed judge Oliver Wendell Holmes once wrote, “Even a dog distinguishes between being stumbled over and being kicked.”

  The requirement, in the words of the U.S. Supreme Court, that the state establish “an evil-meaning mind with an evil-doing hand” in order to convict someone means that certain entities cannot be targets of blame and punishment. Among those generally understood to lack criminal capacity—or, at least, to have diminished capacity—are young children, those with mental illness or severe intellectual disability, and animals. Of course, different legal systems around the world have adopted different thresholds for mental competency. In England, for example, the age of criminal responsibility for a youth—the point at which a child may be held accountable just like an adult—is ten years old, whereas it is fourteen in Italy, fifteen in Sweden, and eighteen in Belgium. Although state practice varies across America, at common law, children under seven cannot be held responsible for breaking the law at all, and those between age seven and fourteen are presumed to lack capacity, which the prosecution can rebut with evidence that the child knew what he was doing and realized it was wrong. As we saw earlier, even older teenagers receive special treatment on account of their not-yet-fully-developed brains, with those under eighteen barred from receiving the death penalty or life in prison without parole. The juvenile court system itself was started, in part, on the grounds that minors lack the culpability of adults and therefore ought to be handled differently. As Benjamin Lindsey, a pioneering juvenile court judge, wrote in 1910, “Our laws against crime are as inapplicable to children as they would be to idiots.” Likewise, no matter how heinous the crime, it is unconstitutional in the United States to execute a criminal with “intellectual disability,” and in states where the defense is recognized, someone with a serious mental illness who meets the criteria for insanity may not be punished at all.

  While these legal frameworks are well intentioned, experiments that Geoff and I have conducted cast doubt on people’s adherence to the bright lines they set out. Perceived blameworthiness does track with mental capacity, so participants tend to judge a high-IQ adult as more culpable than a low-IQ adult or a child (who are both seen as more culpable than a snake). But these judgments are sensitive to the grievousness of the harm committed and do not imply a categorical approach in which certain entities are deserving of punishment and others are not. People believe that a boy who throws a soda bottle off a bridge into high-speed traffic should be punished more harshly when he is described as fourteen years old than when he is described as eight, but the length of his sentence in a juvenile detention center depends on what happens to the bottle. If through pure chance it ends up causing an accident that kills a woman and her young daughters, the boy is given a much longer punishment, regardless of his age. What’s more, on average, the eight-year-old whose bottle causes a fatal accident is assigned more than twice the amount of time in the detention center as the fourteen-year-old who takes the exact same action but doesn’t happen to injure anyone. Indeed, people punish the unlucky child more than twice as much as a twenty-year-old perpetrator whose bottle falls harmlessly.

  With so much discretion and flexibility built into the processes that govern how we treat people who have broken the law, these findings have very serious implications. Who qualifies for the insanity offense? It looks like an objective test, but in practice it’s quite subjective. And the answer may have more to do with the nature of the offense than with the actual mental state or capacity of the accused. Which teenage offenders get transferred to adult court, and which remain in juvenile court? Again, law on the books purports to protect children categorically on the grounds of their mental immaturity, but it’s easily disregarded. In this context, it is hardly a surprise to find that each year more than two hundred thousand juvenile offenders are tried as adults. And it is entirely expected that many states would exploit loopholes in recent Supreme Court cases barring automatic life sentences for juvenile murderers and life sentences without parole for juveniles convicted of lesser offenses. Our hidden drives help explain why state judges routinely skirt the core spirit of those decisions by refusing to resentence people previously given automatic life sentences and by condemning young adolescents, in new cases, to seventy or eighty years in prison without parole—not, technically, a life sentence.

  We profess not to blame children in the same way that we blame adults, or to punish those whose mental illness kept them from understanding the nature of their criminal actions, but, in fact, we do exactly that.

  If our moral processing always worked as we assume it does—assessing the relevant evidence in order to reach a conclusion about proper punishment, in a bottom-up fashion—we might do a better job of maintaining our commitment to judging children and mentally ill adults less harshly. But we often seem to be driven to punish first and seek justification second. We want to hold someone morally responsible when he commits a harm, and so, after the fact, we ratchet up our perceptions of control, intentionality, and even free will.

  That is strange indeed: one would assume that a person believes in free will and then punishes according to that existing worldview. But our notions of human agency are surprisingly malleable. Studies show that when we reduce people’s belief in free will (say, by having them attend a neuroscience course exploring the mechanistic causes of human behavior), they act less punitively. And the connection may run in the other direction as well: our desire to punish may drive our belief in free will. So, for example, after reading about a corrupt judge receiving kickbacks for sending innocent kids to a for-profit juvenile detention center, people reported a stronger general belief in free will than they reported after reading a neutral scenario about the recruitment of a new school superintendent. Wanting to punish the judge, they seem to have altered their understanding of human nature and responsibility to provide better support.

  When it comes to our moral intuitions, the things that seem set in stone are not—even things that seem fundamental. In certain circumstances, we can even derive satisfaction from the punishment of an innocent party. That is remarkable, given that our legal system is predicated on the notion that an innocent person should never be punished for a crime. As Benjamin Franklin explained, “It is better 100 guilty Persons should escape than that one innocent Person should suffer.” The famous English jurist William Blackstone put the ratio at ten to one but offered a similar sentiment, as have many other judges and scholars. Even the Bible says that God would not have destroyed Sodom if it had meant killing innocents. It is hard to think of a more foundational concept underlying the framework of our criminal laws and procedures.

  But what about the Kookies? They would hunt for the tiger that had slaughtered a member of their village, but if they couldn’t find the guilty animal, they’d just kill a different tiger. Could punishing an innocent ever bring us satisfaction?

  In one set of experiments that Geoff and I conducted, we had participants read about three different scenarios following a deadly shark attack. In the first scenario, a shark that was subsequently caught and put to death was, upon a
utopsy, revealed to be the actual perpetrator. In the second scenario, the killed shark was revealed to be completely innocent but happened to be the exact same size and species as the actual perpetrator. In the third scenario, the killed shark was revealed to be a completely innocent shark of an equally dangerous but different species. Not surprisingly, participants showed notably more support for the killing of the actual perpetrator than for the killing of either of the innocent sharks. But they didn’t see the killing of the two innocent sharks as equally wrong. The shark from the same species as the perpetrator was seen as more deserving of punishment, even though it was just as innocent as the shark from the other species, and no more dangerous.

  The dynamic may be in play even when the stakes are much lower. In related work, researchers looked at the phenomenon of beanballs—the practice of a baseball pitcher targeting an innocent player in retaliation for one of his teammates having been hit by a pitch in an earlier at-bat. What they found was that nearly half of the baseball fans they surveyed found it morally acceptable for a pitcher to take such action in a hypothetical game between two Major League teams. When it was their team doing the retaliating, fans endorsed the targeting of an innocent opposing player even more strongly.

  The implications of the research are troubling, suggesting that when a harm has been committed, our desire to find a culprit and reset the moral scales by inflicting punishment may sometimes override our commitment to fair treatment. In the back of our minds, we may already know this about ourselves—though we are loath to acknowledge it. The bloody unfairness stains our history books and our newspaper stories: a mob lynching of an innocent black man after police describe a rape suspect as black; the gangs that live by the motto “You take one of ours and we take one of yours”; the waterboarding of purported “enemy combatants” following the attack of September 11. When you look closely, these retaliatory acts look far less like accidents, anomalies, and collateral damage. They look like reflections of our true nature—who we really are.

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  If the elements deemed essential for just punishment can, in practice, be jettisoned, it is also the case that our drive to punish may be influenced by factors that are meant to be irrelevant. As an illustration, consider the sentencing of a hypothetical defendant, Pete Foster, who murdered a young white woman after she refused his sexual advances.

  Change the color of the woman’s skin from white to black, and you decrease the likelihood that Pete will face capital punishment. Numerous studies have shown that those who have murdered a white person are more likely to be sentenced to death than those who have murdered a black person. African Americans who end up on death row are also more likely to actually be executed.

  But it is not just the race of the victim that matters. If we keep everything else the same and merely change Pete’s race, we also see a large effect. Black defendants are considerably more likely to receive the death penalty. They also receive higher bails, face a greater incarceration rate, and are subject to longer sentences than white defendants. Black juveniles are not only more likely to be transferred to adult court but also end up with notably more severe sentences than their white peers.

  This evidence of racial bias in punishment is supported by experiments using both mock jurors and real decision-makers. Juvenile probation officers, for instance, have been shown to view an offender as more violent, culpable, inclined to reoffend, and deserving of punishment when they are subliminally exposed to words associated with black people (such as Harlem, dreadlocks, basketball) than when exposed to race-neutral words (heaven, loneliness). It appears to be largely a matter of implicit bias rather than explicit bigotry.

  Scientists think that the ultimate source of such unconscious bias is found in negative stereotypes that have percolated in our culture since the time of slavery and before and are stoked by a disproportionate number of news stories focused on African Americans and crime. These stereotypes provide a ready explanation for the black defendant’s behavior: his violent and criminal nature. And when the focus is on the accused’s evil disposition, rather than on circumstances not of his making, it is natural to treat him more harshly. In one recent experiment, researchers had two groups of participants read about a fourteen-year-old with seventeen prior juvenile convictions who raped an elderly woman. Participants were then asked to what extent, in general, they supported sentences of life without parole for juveniles in non-homicide cases. The texts given to the groups were identical, aside from one word: for the first group, the defendant was described as black; for the second group, he was described as white. Participants who had read about the black teenager expressed more support for the severe sentence and for the notion that kids are as blameworthy as adults.

  It’s upsetting to think that such a minor reference to race could have an impact. In a real trial, race may become salient in numerous ways, from the defendant’s skin color to the coded language used by a prosecutor, judge, or a witness. Not everyone, though, is equally swayed by such cues. For some people, describing a defendant as a “violent inner-city criminal,” as opposed to just a “violent criminal,” causes them to favor harsher punishment, while others are not influenced by the racially tinged words at all. And there is some evidence to suggest that those who are aware that the issue of race is in play—either because they are particularly attuned to race or because the threat of discrimination is made explicit—may resist the tendency to act more punitively toward a black defendant so as not to appear racist.

  The fact that referring to Pete as black rather than white could increase the severity of his punishment should not be surprising: after all, many of us are familiar with lingering racial bias in the criminal justice system. But what if we now do something more subtle. Let’s change the shape of Pete’s nose, making his nostrils slightly wider and his nose flatter. Could that possibly make a difference?

  In a word: yes. It’s not just whether you are black; it’s how black you are. The broadness of a defendant’s nose, the thickness of his lips, and the darkness of his skin have all been correlated with capital-punishment decisions: in cases where the victim is white, the more stereotypically black a defendant’s facial features, the more likely he is to receive the death penalty. The same dynamic is at work with non-capital sentences. One study found that felons with the most stereotypically black features spent up to eight months longer in prison than those with the least stereotypical faces.

  Speaking of noses and lips, what if we gave Pete some good old-fashioned cosmetic surgery? Could making him better looking influence his punishment? The familiar story of the beautiful scofflaw who repeatedly bats her eyes out of speeding tickets is closer to the truth than we would care to admit. Research shows that the handsomeness of an offender can influence how harshly he is punished—not because people see the attractive defendant as innocent of the crime but because the beautiful are viewed as less blameworthy. In essence, when you have a pretty face, it can act as a halo, casting a more positive light on your actions. Cesare Lombroso and the other physiognomists we encountered earlier in the book are long since dead, but we still carry their torch. It’s not only that we have preconceived notions about the bone structure of evil; it’s also that we feel sure we know what virtue looks like.

  But even without plastic surgery, Pete might influence those deciding his fate simply by changing his outward demeanor at trial. A man in Pete’s position may not show emotion during proceedings for all sorts of reasons, including a sense that appearing contrite is pointless or may make him look guilty. But, in fact, psychologists have found that nonverbal displays of remorse, as well as apologies and statements of regret, can encourage a more positive view of a person accused of a crime. Indeed, when a person does not apologize or act remorseful, experimental participants tend to view him as having a worse character and being more likely to reoffend. In turn, this can lead participants to advocate less harsh punishment for a contrite or apologetic offender.

  We see this in the r
eal world, too, especially in capital trials. Prosecutors often hammer on the defendant’s absence of regret, and jurors often cite it as a critical factor in their decision to impose the death penalty. And the hard data seems to suggest that those defendants who remain remorseless—who appear cocky or bored or cool, calculated, and controlled—fare worse than those who are emotionally contrite.

  Of course, the power of remorse and apology is not reserved for those facing a death sentence. One recent study showed that people pulled over for speeding who said things to the officer like “I’m sorry” were given lower fines and were more likely to get off with just a warning.

  We’ve been focusing on Pete’s appearance, but let’s zoom out: imagine that just before the jury was about to deliberate, there was a report on the morning news about an apparent terrorist bombing on the subway in Toronto. The tragic attack in Canada has no connection at all to Pete or to the trial, but a wealth of psychological research suggests that it may very well affect the way we punish.

  Humans occupy a strange place in the animal kingdom: our instincts for self-preservation are similar to those of other species, but we are uniquely aware of our mortality. And thoughts of death are deeply unsettling. It is terrifying to think that we have only one life to live and that it could be snuffed out in an instant by any number of factors beyond our control: drunk drivers, sharks, lightning, cancer, and the Ebola virus, to name just a few.