Unfair

by Adam Benforado

  Luckily, we have developed the means to quell this overwhelming terror, including our basic cultural belief systems, which provide our lives with purpose, stability, and order. Religions, for example, commonly tell us how to lead a meaningful life and avoid dangers, and offer reassurance that death is really not the end. Our legal institutions offer similar directions for how to be good citizens, protection from threats to our safety, and comfort that our way of life is lasting (even if our physical bodies are not).

  The more terror we feel, the more we cling to these belief systems and the more vigorously we defend them. This is why the Canadian tragedy may affect Pete’s sentence. A number of experiments have shown that thoughts of death, like those evoked by reading about a terrorist attack, can lead a person to act more punitively toward criminals—that is, those who already stand as a threat.

  In one study, researchers asked a group of judges from Arizona to set bond in a hypothetical prostitution case. Before considering the facts of the case, however, half of the judges were given a personality test in which they were reminded of their own mortality. The judges who had been subconsciously induced to think about death set bond at $455, on average, whereas those who had not been so induced set bond at a small fraction of that figure—just $50. The researchers theorized that after being primed to consider their own mortality, judges were prompted to defend their worldviews and to treat someone who seemed to endanger the establishment more harshly. Had this been a real case, the impact on the defendant in question would most likely have been significant: for someone struggling to make ends meet, a higher bond can mean awaiting trial in jail.

  While subtle reminders of death have been shown to increase the severity of punishment across a wide range of scenarios, from assaults to drunk driving, not all legal decision-makers are influenced in the same way. Those with very high self-esteem, for example, seem less susceptible to mortality cues, arguably because their strong sense of self helps them manage their fear. And some people simply do not view prostitutes and other criminals as particularly threatening. In fact, when an offense actually aligns with a decision-maker’s worldview—think of a hate crime against a gay couple presided over by a vehemently anti-gay judge—that decision-maker may be more lenient to the offender.

  As a general matter, though, when judges and jurors are faced with thoughts of death, it is often going to be at the expense of the accused. What is especially problematic for defendants is that there are so many ways in which decision-makers can be reminded of their mortality. An external event like a plane crash, epidemic, or war can certainly affect a verdict or sentence, but cues from inside the courtroom can be just as powerful. For one thing, many crimes involve interpersonal violence, and it is hard not to think about one’s own vulnerability when hearing the details of a stickup, violent assault, or murder, like the one Pete was accused of committing.

  Attorneys and witnesses regularly help the process along. A prosecutor may emphasize that two victims of a drunk-driving accident could have been killed, or may ask jurors to put themselves in the victim’s place. Likewise, a witness may describe the impact of a murder on the victim’s family.

  The mortality dynamic may be strongest in capital cases. Not only are thoughts of death inevitable in such instances, but the defendants tend to be members of outgroups—the mentally ill, drug addicts, racial minorities, and the poor—who are naturally seen as greater threats. In addition, only those who are willing to impose the death penalty are allowed to serve on capital juries, and there is reason to believe that such individuals are more strongly affected by mortality-related prompts. Pro—death penalty juries are, indeed, more prone to convict. Logic would suggest that when a defendant’s life is at stake, the checks we’ve built into the system would mitigate the effects of these hidden biases: jurors are aware of the heightened costs of erring, judges know that their decisions are more likely to be appealed and scrutinized by appellate courts, the attorneys involved in the case tend to be more experienced, and the proceedings generally receive greater attention from the public and the press. Yet the gravity of the situation provides no such salve to the accused; in fact, the seriousness of the crime can actually make things worse.

  This dynamic may itself be amplified by something lurking in the background of every criminal law case—belief in evil. Recall our problematic “mug shot” view of criminality: when something horrible happens, we are inclined to see an evil person as the source. This notion allows us to maintain our reassuring belief in a just world, in which harms have a clear and recognizable origin that can be readily addressed. It is far more unsettling to think that most of us are capable of committing serious crimes—even though that is what research on the power of situational influences suggests.

  In trying to understand the “myth of evil,” researchers have catalogued the underlying assumptions that many of us share, including the idea that some people are born evil and that evil people derive pleasure from their bad acts. These beliefs inform our drives to punish: if you believe in the existence of pure evil, it stands to reason that you will tend to support harsh punishment and view efforts at reforming offenders as pointless. And that’s exactly what the research shows, both when people are asked to consider matters in the abstract and when they’re tasked with sentencing a real person. In one study, the potency of people’s belief in evil predicted the likelihood that they would support the execution of Nidal Malik Hasan, the man responsible for shooting and killing thirteen people at Fort Hood.

  Though much of the public believes that evil is an immutable trait, whether we view someone as evil can be influenced by subtle cues. Even seemingly insignificant things like an offender’s wardrobe, taste in music, and favorite books (think Goth appearance, enjoyment of heavy metal, and interest in occult literature) can encourage some people to view the offender as more evil and prompt more severe punishment. Damien Echols, the accused ringleader of a group of teenagers convicted of murdering three eight-year-old boys in Arkansas in 1993, might have received the death penalty in any case—but in light of the research, it is hard to ignore the possible impact of his first name, black clothes, love of heavy metal, and interest in witchcraft, all of which were raised at trial.

  The implications are disconcerting. People with an ardent belief in pure evil are active participants in determining sentences, reviewing punishments, and setting policy. It matters when a governor or president evaluating petitions for clemency from death-row inmates thinks—as George W. Bush did—that “good and evil are present in this world, and between the two there can be no compromise.” And it matters when a sitting Supreme Court justice wholeheartedly believes that the Devil is a real person, as Justice Antonin Scalia does.

  Such individuals are at a distinct disadvantage when it comes to appreciating the various forces outside of an offender’s control that may have led him to commit a terrible act. And this creates a tragic paradox in which those who are more likely to see evil in others are more likely to commit evil acts themselves—supporting or perpetrating cruel acts against people whose crimes ultimately reflect not their corrupted dispositions but their genetic and environmental bad luck.

  —

  So, in light of all this, are our beliefs and motivations really that different from those of our medieval French counterparts who tried and executed a pig?

  The Harvard psychologist Steven Pinker has offered a convincing argument that, viewed against the backdrop of human history, the modern world is relatively peaceful. One of the driving forces behind the decrease in violence, he argues, is the transfer of punishment responsibilities to a disinterested third party. And it seems obvious that the modern judicial system, with its judges, jurors, police, lawyers, and correctional officers, has indeed preempted much of the bloody individual and group retaliation that characterized our past. But if outward behavior has changed, it is less clear how our brains have fared.

  We would very much like to believe that superstition has no place in o
ur courthouses and that we are never driven by blood revenge. We would like to think that we take no pleasure in punishment. We want to believe that feelings of warmth toward our fellow man always outweigh feelings of disgust and hatred—that, in the words of Nelson Mandela, “deep down in every human heart, there [i]s mercy and generosity” and that “love comes more naturally to the human heart than its opposite.” Mandela’s words resonate because this is what we want to hear. But the reality of the matter sounds in dissonant chords.

  It is true that, in the West, we no longer have public executions—for pigs or humans. It is true that we no longer break people on the rack or draw and quarter. But are we “better angels” on the inside, or have we merely constructed elaborate structures that camouflage the retributive drives within us? When we look closely at the effects of our punishments—the topic of the next chapter—we may find that our practices are not as enlightened as we might hope. What does our penal system actually do to people and for people—criminals, would-be offenders, victims, everyday citizens? Do we end up delivering payback to those who most deserve it? Does the suffering we dole out in the name of justice actually encourage people to swear off crime? Does it leave us safer?

  10

  THROWING AWAY THE KEY

  The Prisoner

  Eastern State Penitentiary is known today, first and foremost, for its premier haunted house. People line up down the block. It runs for weeks around Halloween, and purchasing advanced tickets is advisable. Each year it’s meant to be a little more frightening—“Darker. Bloodier. Terror like you’ve never felt,” according to the website. In 2013, the prison began offering visitors the option of being grabbed by the sadistic guards, deranged doctors, and murderous inmates who lurk about the eleven-acre compound. For an extra $70, there is even a VIP tour that includes a guided visit to death row, Al Capone’s cell, and the underground punishment block. The “special Terror Behind the Walls LED flashlight” is included in the cost of admission.

  Amidst the bars and bistros of Fairmont Avenue, the penitentiary, with its turrets and immense stone walls, seems strikingly out of place—a relic more fitting for a strategic medieval crossroads than the stroller-filled streets of modern Philadelphia. It is hard to imagine that the crumbling ruins and derelict cells once held men who could not wipe off the makeup and head home at night’s end. But while the body has decayed and been repurposed, the spirit of Eastern State is more alive than ever, animating our current approach to punishment in the United States.

  It may have been foreordained that Philadelphia’s first European settlers would take the lead on corrections. Pennsylvania was, after all, the creation of a convict. Before setting off for the New World, the great William Penn achieved the unenviable distinction of having roomed in both the Tower of London and Newgate Prison. And many of his fellow Quakers—reluctant immigrants fleeing persecution—were all too aware of the ineffectiveness of English punishment and the suffering it caused.

  As a result, the early penal code that Penn adopted sought a new path, largely eliminating the harsh corporal and capital punishments of England in favor of more civilized imprisonment. By the mid-eighteenth century, however, this noble vision had devolved into a detestable reality. While the lash had been effectively abandoned, the conditions of incarceration in Pennsylvania had grown squalid, overcrowded, and disorderly. It fell upon a new generation to reinvigorate Penn’s legacy. Operating as the Society for Alleviating the Miseries of Public Prisons, these disciples—Philadelphia icons like Benjamin Franklin and Dr. Benjamin Rush, the father of American psychiatry—pushed through a series of reforms culminating in the building of what was arguably the world’s first fully realized penitentiary, Eastern State.

  The key innovation was solitary confinement. After touring Eastern State on behalf of the French government in 1831, Alexis de Tocqueville and Gustave de Beaumont explained the rationale in stark terms: “Thrown into solitude…[the prisoner] reflects. Placed alone, in view of his crime, he learns to hate it; and if his soul be not yet surfeited with crime, and thus have lost all taste for any thing better, it is in solitude, where remorse will come to assail him.”

  The first inmate at the prison was Charles Williams, admitted on October 25, 1829. He had light black skin, a broad mouth, and a scarred nose. He was a farmer by trade, but he could read. And he had been convicted of burglary—coming away with a twenty-dollar watch, a gold seal, a gold key. He was received by the first warden, Samuel Wood, who examined Charles from head (eyes: black) to toe (foot: 11 inches) and then watched as a hood was lowered over his carefully mapped face.

  The hood was a critical component of this monastery of compulsion, designed to prevent communication, interaction, and knowledge of the surroundings. Whenever Charles was led from his cell, it would be in this hood. And when it was removed for the first time, he saw what lay ahead for the next twenty-four months of his life: whitewashed walls, an iron bedstead, a stool, a rack for clothes, and supplies for eating and cleaning. He was left alone. And so began the regimen of solitude: no chats with fellow prisoners or visits from children, no news of the world outside the walls, no whistling. He occasionally interacted with the prison staff, but even here there were rules. Charles was no longer Charles; he was addressed as “ONE”—the number sewn onto his clothing and hung over the door of his cell.

  To contemporary reformers, this was not torture; indeed, it was the opposite. If the standard prison was a place of pointless suffering and cruelty—a refuse heap for the discarded to rot—the penitentiary, by contrast, was an institution of purpose, designed to cure the criminal and deter the future offender.

  That did not mean coddling the inmate—far from it. Incarceration was designed to be exceedingly unpleasant: after all, inflicting extreme misery could be quite effective in discouraging criminal behavior. But barbarism was out. The interior of the prison, with its vaulted cellblocks and skylights, showed that this was not some medieval dungeon but a beacon of progress. At a time when the president of the United States had no running water in the White House, prisoners at Eastern Penitentiary had flush toilets and central heating.

  The modern prison had arrived.

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  It is interesting to think what Tocqueville—who described Philadelphia, in 1831, as a city “infatuated…with the penitentiary system”—would say today about the City of Brotherly Love, or these broader United States. America accounts for less than 5 percent of the world’s population, but almost a quarter of all prisoners. Some 2.3 million individuals are behind bars across the country, and in excess of 6 million are under “correctional supervision”—more, by far, than in any other nation. Even at their height, the Gulag labor camps never came close to the number of our citizens currently on probation, in jail or prison, or on parole. Take one hundred thousand Americans, and 707 of them are languishing in a cell. By contrast, 284 out of every hundred thousand Iranians are locked up, 118 out of every hundred thousand Canadians, and only 78 out of every hundred thousand Germans.

  A country that abolished slavery 150 years ago now has a greater number of black men in the correctional system than there were slaves in 1850 and a greater percentage of its black population in jail than was imprisoned in apartheid South Africa. Black, male, and no high school diploma? It’s more likely than not that you will spend time in prison during your life.

  Although there are many factors behind America’s high incarceration rates, the ever-expanding list of criminal violations and the harshness of our sentencing are front and center.

  When Illinois’s criminal code was updated in 1961, it was 72 pages, but by 2000 it had grown to 1,200 pages. Illinois is no anomaly: in every state, we imprison people for relatively minor, nonviolent crimes—like using drugs or passing a bad check—that would receive a slap on the wrist in other countries. While no more than 10 percent of those convicted of crimes in Germany and the Netherlands are sentenced to prison, in the United States it’s 70 percent. We also hand out much long
er prison sentences than in other parts of the world. Burglarize a house in Vancouver, and on average you can expect five months in a Canadian facility. But drive an hour south to Bellingham, Washington, and commit the same offense, and you’ll spend more than three times as long in prison. The same pattern is true for serious crimes. In Norway, for example, no one can be given a sentence of more than twenty-one years, while in the United States we regularly lock people up and throw away the key.

  Unlike many of our European counterparts, we also have all sorts of penalty enhancements and mandatory rules that can turn a seemingly small infraction into decades in prison. Forrest Heacock shared cocaine with three other people at a party, one of them accidentally overdosed and died, and Heacock was sentenced to forty years in jail for felony murder. Leandro Andrade shoplifted nine children’s videotapes and received a sentence of fifty years to life because, twelve years earlier, he had been convicted of three counts of residential burglary. In California, the law said three strikes and you’re out, even if that third strike was walking out of a Kmart with a copy of Cinderella tucked into your waistband. When the U.S. Supreme Court reviewed Leandro’s case, in 2003, they said there was nothing cruel and unusual about his sentence. In many other countries the highest courts would have disagreed.

  Our exceptionalism extends to the particular way we punish. While the United States is the only Western country to carry out capital punishment, what may set us apart even more is our embrace of solitary confinement. The practice was largely abandoned in the United States during the nineteenth and twentieth centuries, but over the last three or four decades we have found our way back to the model of Eastern State. Today, solitary confinement is widespread in American prisons, with more than eighty thousand people kept in isolation.