Unfair

by Adam Benforado

  —

  If we are going to make our system of criminal justice fairer, we need to be less reliant on faulty human processes, but we also have to be more compassionate. We need to stop viewing the people we arrest, prosecute, convict, and imprison as evil and less than human, for that toxic combination drives us to hate and hurt, makes our brutish treatment seem justified, and does little to make us safer. We must challenge the structures that prevent us from seeing our commonalities, hide our shared goals, and dampen our empathy for our fellow human beings. And we must build new mechanisms that encourage us to understand the perspectives and situations of others.

  Our criminal justice system is pervaded by powerful group divisions and defined by conflict: criminals versus cops, prosecutors versus defense attorneys, prisoners versus guards, the incarcerated versus the general public. And these dynamics are behind some of the worst injustice in our system. When police officers view the suspects they confront as despised enemies, with values that are diametrically opposed to their own, it makes it much easier to mistreat them, just as when prison guards view convicts in dehumanizing ways. Similarly, for all of its proclaimed benefits, the adversarial trial system also promotes an “us” versus “them” attitude that can encourage lawyers to cut corners and behave immorally. And our system of imprisonment itself acts as a potent force in confirming our sense that those inside are fundamentally different from the rest of us, and that we are locked in an eternal struggle: right versus wrong, good versus bad, order versus disorder.

  It can be no surprise that members of the public fail to raise an eyebrow when a new, harsh mandatory sentence is handed down, or when a study suggesting endemic prison rape or deplorable living conditions is released, or when legislation is enacted that prevents parolees from living within the confines of a city, deprives them of their ability to vote, or stamps them with a permanent badge of ignominy. But these are terrible things. And if we stopped to think about our common humanity and shared destiny, we’d realize that they are directly at odds with our values and we would not stand for them.

  How do we make an inherently adversarial system less adversarial?

  We might start by helping police officers think differently about their mandate: rather than “Lock people up,” it ought to be “Improve safety within communities.” Some urban police forces have already found that recasting the role of the police officer from law enforcer to security promoter increases the willingness of private citizens to aid the police in their work. And encouraging understanding and sharing serves not only to help solve crimes but also to keep them from happening in the first place.

  One recent example comes from what was once ground zero for antagonism between the police and the community: Watts, an impoverished neighborhood in South Los Angeles long known for its gang warfare and brutal confrontations between cops and residents. Hoping to reverse the tide, in 2011 the LAPD launched a new Community Safety Partnership to facilitate communication between concerned residents (including some former gang leaders) and police leadership. The two groups began coming together every Monday to discuss the status of gang feuds, investigations, and other safety matters affecting the neighborhood. The new level of understanding, trust, and respect has yielded tangible benefits, helping to defuse conflicts and reduce violent crime. In 2013, in fact, Los Angeles saw its lowest number of homicides since 1966. There are many factors at work, of course, but positive engagement between law enforcement and the public has been essential: treating people with respect and fairness really does make them more likely to respect the law in return.

  We should continue to consider new ways to encourage police officers to see things from the perspective of the people in the districts they serve. And we ought to rethink certain well-intended policies that inadvertently reinforce powerful divisions between community members and police officers, including rules prohibiting police officers from serving in neighborhoods where they live or grew up (designed to avoid potential conflicts in which an officer must take an enforcement action against someone she knows).

  We could adopt a similar approach in realigning the relationship between detectives and suspects. As we’ve seen, the commonly used Reid technique casts the two as adversaries. The resulting interrogations tend to be highly confrontational, focused on battering a suspect into submission and lying to him if necessary until he fesses up, which we know greatly increases the likelihood of a false confession. So, what if we recast the investigator’s objective, from obtaining an admission of guilt to simply gathering reliable information? Rosy claims to the contrary, the emphasis in our current approach is not on reaching an accurate account of what happened. That’s why detectives are permitted to offer the suspect potential motives and descriptions of how the crime went down—even if they’re entirely made up—to make it more psychologically palatable for him to accept responsibility. It’s an effective way to get to “I did it,” but it’s a terrible way to get to the truth.

  We need a renewed focus on accuracy. During the initial stages of an interview, a detective should simply ensure that the suspect provides a complete description of events. Even if the story begins to sound implausible, the detective shouldn’t switch to trying to extract a confession but should instead redouble his efforts to gather as much information as possible by pointing out inconsistencies in the suspect’s version of events. Those who are most vulnerable to suggestion and coercion—the young, the mentally ill, and those with intellectual disabilities—should be identified and treated with special care. As part of a collaboration between the police and psychologists, the United Kingdom revamped its own investigative questioning procedures along these lines. The reforms have not only reduced the likelihood of a suspect admitting to a crime he didn’t commit, they’ve actually increased the amount of useful information that guilty suspects reveal.

  It will be harder to alter our adversarial trial system because of the elaborate structures that it has spawned, but there is a promising way forward. One of the first steps is to reaffirm the existing principle that lawyers serve not only their clients but the system of justice as well. Prosecutors and defense attorneys are, in many ways, seeking the same thing: Innocent people should be exonerated. Guilty people should be convicted, but their sentences should be just. And all defendants should enjoy the most impartial and respectful treatment possible. Somehow that powerful common purpose—to figure out what really happened and reach a fair outcome through a fair process—has been lost. In the roar of the adversarial juggernaut, the prosecutor forgets that the defendant is a real person, and the defense comes to ignore the fact that a victim has been seriously hurt. Each side is encouraged to engage in dishonesty, and experts are used to mislead rather than clarify, which can lead to disastrous verdicts.

  One solution is to remove the legal work of collecting and probing the evidence from partisan actors and place it in the hands of one or more independent authorities. Other countries show what’s possible. In Germany, for instance, a prosecutor, tasked with uncovering evidence of both the defendant’s guilt and his innocence, prepares a dossier of the case, but the presiding judge enjoys primary responsibility for gathering and sorting through the facts at trial, including examining witnesses. The adversarial approach is not a necessary component of a just legal system, and it’s easy to overlook the fact that the spectacle of lawyerly confrontation, with shouted objections, opposing motions, and fiery speeches, is actually a rather late addition to Anglo-American criminal procedure. It was developed to ensure fairness, but in many respects it has had the opposite effect.

  Most notably, the adversarial system has played an important role in the shift from quick and relatively straightforward proceedings to trials that are long and extremely complicated. And with lawyers constantly wrangling over procedural rules, it’s no longer possible to provide regular trials to everyone charged with a crime. We just don’t have the resources, which has led us to rely heavily on the plea bargain. In nine out of ten cases today, as
we’ve seen, the accused waives his right to trial in exchange for a lighter punishment. That means that only one person in ten gets an independent judgment of his case. Only one in ten enjoys the presumption of innocence and the right to cross-examine his accusers. Only one in ten is provided with the privilege against self-incrimination.

  Constitutional protections do not apply in plea negotiations. And this is particularly consequential because, in plea bargaining, the prosecutor enjoys a tremendous amount of discretion, taking on all the key roles: accuser, investigator, adjudicator, and sentencer. This concentration of authority inevitably leads to unequal treatment and unfairness. Blacks taking pleas end up with harsher sentences than if they were white. People committing a crime in one area of the state receive probation, while those perpetrating the same acts a few miles away are incarcerated. And, as we’ve seen, innocent parties can be compelled to plead guilty if they perceive the risk of going to trial as too high. When that happens, not only do we send an innocent person to prison, but we also close the case, which means that the police stop looking for the guilty party.

  The plea bargain, then, is best likened not to a shortcut but to a short circuit of our constitutional guarantees of due process. This presents a profound irony: while the adversarial system was introduced to protect defendants, the overwhelming resource requirements of that system have helped to drive a shift to plea bargaining, which has far fewer safeguards than a non-adversarial trial.

  In light of this reality, we need to abandon the widely held belief that the truth is best revealed through a vigorous clash of zealous partisans armed with an imposing arsenal of technical legal rights, rules, and procedures. The resulting battles are dramatic, but they do not lead inevitably to justice—particularly given that their costly nature has forced us to resort to ugly backroom deal-making. It seems no coincidence that in countries with largely non-adversarial systems, plea bargains tend to be much rarer.

  To begin to address the negative effects of the adversarial process, we should not only bolster existing norms that encourage lawyers to think of the common good but also develop new professional rules that firmly articulate that winning is not the ultimate end for prosecutors or defense attorneys. Causing an innocent man to be convicted is clearly wrong and shameful, yes, but so is helping a guilty man go free. Avoiding these outcomes should be a primary concern for lawyers on both sides. Indeed, a prosecutor who discovers and reveals evidence that a defendant is innocent should be celebrated and congratulated. As part of this process, it may be helpful to look, again, at Germany, where the prosecutor is seen as the “watchman of the law,” with the role of providing an objective presentation of the facts.

  With respect to prison guards and prisoners, too, we might find inspiration across the Atlantic. In the United States, the job of the corrections officer is akin to that of a kennel worker or zookeeper. The division between the keeper and the kept is absolute, and the task is clear: secure the animals in their cages. According to the Texas Department of Criminal Justice, the “essential functions” of a guard include counting, feeding, and supervising the inmates; restraining those who are combative, using force when necessary; and responding to emergencies like escapes and injuries. As we’ve seen, in northern Europe, by contrast, corrections officers are more like social workers. They take courses in educational theory, ethics, psychology, and conflict management, which help them to serve as mentors and role models. Rather than minimize direct contact with inmates, they seek opportunities for engagement: corrections officers play sports and music with those they supervise; they offer counseling and provide learning opportunities. Most important, they treat inmates with respect. We need to embrace a similar ethos in the United States: that guards and prisoners are united in a shared endeavor to help the prisoner remedy the harm he has inflicted, address the underlying causes of his criminal behavior, and prepare him to reintegrate into society. Our corrections hiring should target people well suited to rehabilitative work rather than disciplinarians ready for a fight.

  We should also reduce the impenetrable divide between the public and the prison population. Although certain types of offenders are quite appropriately kept separate from the general public, many would benefit from closer ties with outside society. And the rest of us would benefit, too. If those convicted of crimes will walk among us again, we must begin preparing them today. We ought to help prisoners maintain family connections, allowing frequent interaction with loved ones so that they have support when they return. There is no justification for callous and shortsighted policies like limiting an inmate to a single phone call to his kids once every two weeks. Destroying families doesn’t prevent crime; it engenders it.

  We should also foster links between offenders and employers so that most inmates have jobs when they reenter the labor market. There is strong evidence that ensuring stable employment is one of the best ways to prevent reoffending: former inmates with steady jobs are up to 40 percent less likely to end up back in prison. Employment does more than allow a person to support himself without returning to crime; it also enables him to build connections with those who model conventional, law-abiding behavior. Day-pass employment of prisoners in local businesses, leading to permanent positions after their release, is realistic if we make it safe and profitable with the aid of government subsidies or insurance.

  On a related note, we should make full restoration of the rights of citizenship a goal for every prisoner. Today, even after someone has repaid his debt to society, his criminal record continues to hold him back in countless ways. Roughly nine out of ten employers look into the criminal histories of the people they are considering hiring. And criminal records are also used to deny people welfare benefits, rental housing, loans, and voting rights. The problem is that although a person’s criminal record stays with him forever, its usefulness in predicting reoffending decreases significantly over time. Across a range of offenses, experts have tracked what they call the “point of redemption”—usually three to seven years after the crime—at which time a previous arrest ceases to make an individual more likely to be rearrested than someone in the general population. We can’t tie anchors around people’s waists, toss them in the deep end, and expect them to swim. If our goal really is for those who have committed crimes to become productive citizens, we’ve got to give them more help than other people, not less.

  —

  Eliminating the sharp, adversarial divisions within our criminal justice system and cultivating empathy raises an intriguing question: why not get rid of blame as an organizing principle altogether? Why not instead treat crime like a public-health issue—an epidemic that we are all fighting together?

  The more we understand the genetic and environmental factors that shape criminal behavior, the more it looks like a disease, and the less our current framework of ascribing moral responsibility appears justifiable. We’re told that horrible acts reflect wicked dispositions and bad, but voluntary, choices. We’re told that offenders are worthy of condemnation because they knowingly disregard the rules in pursuit of their own repugnant desires. But that just doesn’t mesh with a nuanced understanding of human behavior.

  It is not a coincidence that roughly a third to a half of the American prison population suffers from serious mental disorders. It is not a coincidence that those who are incarcerated are disproportionately uneducated, poor, and survivors of childhood abuse and neglect. And while we already acknowledge that some harmful acts are not the product of free will—the man whose sudden seizure causes him to drop his baby cannot be said to have chosen to assault his child—the lines we draw between compelled behavior and voluntary, intentional conduct are a convenient fiction. They simply reflect the divide between the unmistakable, documented influences on human actions and the determinants that remain hidden. The fact that it is very difficult to figure out the particular nexus of factors that led a person to pull that trigger, kick in that back door, or write that bad check does not mean that he freely chose
to commit a crime.

  We need to quit wasting our time trying to sort out who really deserves blame. But how might we proceed? There is no quick and easy path through the thicket of laws, practices, and beliefs that take the existence of rational actors, good and evil, as a given.

  We can start by acknowledging that removing blame from our criminal justice system doesn’t mean that harmful conduct would suddenly become acceptable or that people who commit crimes would suddenly be free from sanction. The idea that if we stopped vilifying the criminal we’d have to treat rape victims and rapists exactly the same way is entirely false. Even without a legal framework grounded in personal volition and culpability, a serial rapist has still committed terrible acts that we would rightfully denounce, and we might very well prevent that person from interacting with society for the rest of his life. But we’d no longer subject individuals to poor treatment and contempt on the grounds that they’re bad people who deserve it. We’d get out of the payback business. Instead, we’d focus on remedying the harm, rehabilitating the criminal, discouraging others from taking similar actions, and treating the conditions that precipitated the crime in the first place.