This may sound revolutionary, but it’s really not so different from how we handle outbreaks of disease. When a dangerous virus overwhelms a town, causation is relevant, but blame isn’t. We don’t treat someone who has contracted Ebola or dengue fever as sinful. We get to work restoring the person’s health, preventing new cases, and trying to eliminate root causes.
As we’ve seen, that basic model is already being embraced in certain countries. Innovative prisons like Halden show us what’s possible. And Americans, too, might come to view prisons more as hospitals, with the focus on “treating” the underlying factors that lead to offending and quarantining certain individuals who pose a particular threat to the public and are incurable.
Indeed, there is strong precedent in the United States for moving the criminal justice system away from blame. In the early twentieth century, juvenile courts were created with the idea that the state should not be a retributive punisher of delinquent children but rather a guardian of their interests. The moral responsibility of the child became irrelevant; the focus was placed instead on rehabilitation. Unfortunately, in the intervening decades, juvenile proceedings lost this compassionate edge and came to look much like their adult counterparts.
Yet there are hopeful signs that the impulse to deemphasize blame may again be catching on. In response to the failure of our legal system to address drug relapses, mental health problems, and high levels of reoffending, a number of jurisdictions have begun experimenting with community-based programs that reject a model of corrections focused on vigorous prosecution and harsh punishment. One of the most notable developments has been the emergence over the last two decades of problem-solving courts, which divert offenders away from the single revolving door of the prison toward a forum where they receive tailored treatment based on their history of mental illness, drug abuse, or prostitution. The underlying theory is that you cannot prevent reoffending unless you work to understand and address the true sources of criminal behavior, like addiction or schizophrenia. So, rather than acting as adversaries, keeping one another at arm’s length, the prosecutor, defense attorney, and judge work collaboratively to come up with a plan of treatment and monitoring. Offenders are not seen as evil people who deserve to suffer, but rather as individuals with serious long-term problems, who merit realistic expectations and compassion. Drugs courts, for example, treat addiction as a disease and accept that those who are addicted to drugs will, in all likelihood, relapse. As a result, the zero tolerance and harsh reprimand systems inside prisons—and built into normal parole procedure—make little sense. Problem-solving courts instead use empirically validated techniques to modify behavior, like ratcheting up minor sanctions after repeated failures (including community service, more drug testing, fees, homework, and occasional jail time) and employing simple reinforcement techniques.
And it works. Research shows that the more humane approach of problem-solving courts—based not on hurting offenders in proportion to their wrongdoing but on helping them according to their needs—is more effective than highly punitive alternatives. Those who come before mental health courts are less likely to reoffend, less likely to commit more serious offenses when they do, and more likely to experience improvement in their mental health. Drug courts get similarly high marks on reducing recidivism and drug use, as well as on cost-effectiveness.
With more than three thousand problem-solving courts now operating in the United States—and others in countries as diverse as Jamaica, Brazil, New Zealand, and England—the future looks bright. Yet they still handle only a very small fraction of the people who come through the criminal justice system. And the major question is why all offenders don’t deserve similar treatment. We need to make a better case for reform across the board.
One of the great benefits of removing blame from the system is that it allows us to turn to things we’ve been neglecting, like ensuring the healing of those harmed by crimes, including victims and their families, witnesses, and community members. Victims shouldn’t be pushed to the side and treated as mere pieces of evidence—they should be respected as integral parts of the proceedings. It makes little sense that the U.S. Constitution focuses so much attention on the rights of the accused and convicted but fails to offer any protections to victims. They should be permitted an active role in the various parts of a case, from initial hearings to plea bargains to sentencing and even post-conviction. The legal system should ask victims what they need to mend and work to achieve those ends. In some cases, that may mean facilitating apologies and aiding victims in forgiving those who have committed crimes against them. Recent research suggests that such actions can be far more effective at repairing the harm than retributive punishment of the offender. In fact, granting forgiveness may provide a victim with a heightened sense of justice and fairness, as well as improved psychological well-being. In other cases, catering to a victim’s needs may mean figuring out how the perpetrator can provide restitution. Even if offenders are not treated as blameworthy, they ought to mitigate the impact of what they’ve done. If you broke a glass while visiting a friend, it wouldn’t matter if it was a complete accident: you would still help pick up the pieces, and if it had any real value, you would probably offer to replace it.
Perhaps the biggest consequence of moving away from a blame-based criminal justice system is a shift in societal resources from punishing crime to preventing it. Giving up a blame mindset lays the groundwork for transferring tax dollars from prisons and courts to schools, neighborhood improvement initiatives, and mental health care. A single death-penalty case, from arrest to execution, costs a state government between $1 million and $3 million. The average cost of housing an inmate in a supermax prison is approximately $75,000 a year. Justice is a finite resource: we have only so much money, so much time, and so much empathy. Should we spend such a large portion of what we have on trials and punishments? The fact that we still err despite our massive investments only strengthens the case for intervening before crimes are ever committed.
When we prevent a crime from occurring, we avoid nearly every one of the problems identified in this book. Yet we tend to think about criminal justice only after the fact. We wait for the shot to be fired. We wait for the claim of police brutality or the allegation of prosecutorial misconduct. We convince ourselves that reacting is just as good—that executing a criminal balances the scales of justice for the loss of the murder victim; that providing an appeal ensures that any error made during an investigation or trial can be set right. But that is always wrong. By focusing on responding, our criminal justice system always comes up short. Ask any murder victim’s parent: no punishment can make up for what has been lost. And many criminals are never caught at all.
Moreover, we can expect to identify only a tiny percentage of the mistakes, biases, and acts of dishonesty marring the work of police officers, judges, jurors, and others. Most who have been wronged will never know it. Even if they do find out, the opportunity to remedy the problem is severely restricted: people often aren’t aware of their rights, there aren’t enough competent attorneys to file complaints and appeals, and there’s frequently no hard evidence to convince a judge to address the issue. In only 5 to 10 percent of all cases, for example, is there a biological sample for DNA testing. And if a judge, two decades down the line, by some miracle, does acknowledge a suggestive eyewitness identification or a coercive interrogation and overturns a sentence, we still can’t call it justice, for we placed an innocent man in a closet-sized cell for twenty years of his life.
The strongest argument for shifting resources toward prevention is simple fairness: we profess to care deeply about equality, but certain people have a much greater chance of ending up as criminals, and as victims. There is nothing inevitable about this. It is a lie to say that a significant rate of crime is unavoidable and that we must simply accept the status quo of thousands of people being shot and robbed and raped. The question is, how much do we care about other people—the unlucky ones? And how will
ing are we to invest in changing the environments that encourage criminality? Eliminating blame from our criminal justice system will push us in the right direction, because blame is often our best excuse for doing nothing.
—
The reforms I have suggested are only a small fraction of the possibilities, and whether we choose to pursue them will have less to do with our natural limitations than with our commitment to equal justice under the law. While some solutions require significant restructuring and long-term planning, many innovations in police protocol, rules of procedure, courtroom design, and our legal code are well within our reach today.
Unfortunately, when it comes to law, we have a particularly strong resistance to change and tend to believe that those before us were more enlightened and less fallible. We fetishize our Founding Fathers and the learned jurists of old. We treat the frameworks they developed as optimal, incapable of improvement, and we therefore deny the very possibility of reform. But if they were alive today, the visionaries of yesteryear would have quite different visions. And our laws and legal practices are just as likely to benefit from the centuries of progress—and, yes, science—as building design, medicine, and transportation. To think that Henry Ford would build the same Model T today is absurd. And yet we convince ourselves that James Madison would deliver an identical copy of the Bill of Rights—and that other modernizers of the criminal justice system would choose to disregard the latest research on human behavior if they were our contemporaries. But why? Why should law be different?
In Montgomery, Alabama, in 1965, Martin Luther King Jr. asserted that “the arc of the moral universe is long, but it bends toward justice.” And it might seem safe to assume that the unfairness explored in this book will be stamped out in society’s ceaseless and inevitable march forward. Ten thousand years ago, there was no court or trial to ensure that a man accused of murder received due process—justice was the end of a spear. One thousand years ago, proof of guilt was revealed when a woman’s hand festered after being burned with a hot iron. One hundred years ago, black citizens could be barred from the jury box, bar, and bench on account of the color of their skin. And ten years ago, it was legal in the United States to execute someone who had committed his crime before he was eighteen. Progress, certainly—but this has been no unbroken advance. It has been a journey, uphill and against the wind. It has entailed detours and backtracking—and our current vantage point has much to do with chance. History makes clear that our next destination may, or may not, lie up the mountain.
The decline of the trial by ordeal—the starting point of this book—was not brought about because people suddenly realized that dipping men and women into water to see if they float was a poor way to assess innocence. It disappeared because the Catholic Church hierarchy decided that commanding God to work miracles in the service of a human judicial system violated biblical principles. And what replaced the ordeal was not a system of evidence and reason but something arguably less accurate and humane than what had come before: judicial torture. For roughly the next half millennium, when a person was strongly suspected of a serious crime, but there were no witnesses, he would be broken on the rack or subjected to the thumbscrew to elicit a confession. Like those who had administered the ordeal, the officials in charge did not see themselves as cruel or unjust. Like us, they constructed an elaborate structure of seemingly objective rules and procedures that affirmed their righteousness and impartiality.
Yet we are different from those who came before. And what sets us apart is not the virtue of our current laws—our plea-bargain system, for one, gives innocent defendants a “choice” that’s not so different from that offered under judicial torture—but rather our potential for virtue.
It would have taken an exceptional person to stand in the common crowd at Soissons as Clement was thrown into the vat and spot injustice. What would have inspired doubt? And what resources would he have had to nurture it and help it spread afield? What evidence could he have mustered? Who would have listened? At a time without mass communication or centralized government, even the most passionate and resolute reformer could not have expected to have much of an impact.
We enjoy magnificent advantages over our forebears in the quest to remedy unfairness. We know much more than they did about human behavior, we possess amazing technologies to track, address, and prevent problems, and we have a greatly enhanced capacity to coordinate actions that affect millions of people.
But for it to matter, we must act.
The arc of history does not bend toward justice unless we bend it.
Acknowledgments
Nobody cares about criminal law except theorists and habitual criminals.
—SIR HENRY MAINE
If you go by the last century of news stories, novels, and movies, Sir Henry’s statement ranks up there with the 1962 Decca Records verdict that “the Beatles have no future in show business.” But Sir Henry was right on a certain level: although people may be enthralled by criminal law, they don’t really care about it. On a list of major concerns, the state of our criminal justice system comes well down the line. The reason is simple enough: most people don’t know what’s really going on.
I set out to write this book because I became convinced that the truth about our legal system could not remain confined to the academics who studied it or those unfortunate souls who suffered under it; the general public needed to confront the hidden unfairness.
My path was greatly facilitated by numerous scientists and scholars whose work grounds this book. In this illustrious group, Jon Hanson deserves special mention: he introduced me to the field of law and mind sciences and opened my eyes to an array of problems I had never considered. His kindness, brilliance, and generosity changed the trajectory of my professional life: without him, I wouldn’t be a law professor.
I am also deeply grateful to my editor, Amanda Cook. It is hard to imagine a more dedicated, tireless, and thoughtful guardian for this project. Her efforts—and those of her star assistant editor, Emma Berry—have made the book sharper, clearer, and more engaging. With her deft touch and keen instincts, Katya Rice taught me the value of a terrific copyedit. And I owe much to the entire team at Crown who brought the book to market.
I thank Will Lippincott, my agent and friend, whose constant support, strong advocacy, and wise counsel have helped me navigate the world of publishing, and everyone at Lippincott Massie McQuilkin for keeping things on course.
I am indebted to the efforts of a true honor roll of research assistants: Jessica Acheson, Justine Baakman, Kathleen Bichner, Louis Casadia, John Corcoran, Nathaniel Crider, Andrew Davis, Mallory Deardorff, Tudor Farcas, Kyle Gray, Claudia Hage, Seth Haynes, William Holland, Rachel Horton, Patrick Mulqueen, Alexandra Rogin, and Patrick Woolford. Their enthusiasm and hard work kept me going when the mountains of research studies and books seemed to grow taller with each step I took. More broadly, I thank students in my Criminal Law course and my Law and Mind Sciences seminar who challenged me to rethink my assumptions and look at old material with fresh eyes.
I am also grateful for the diligent assistance of the librarians and staff of the Drexel Legal Research Center, including Sunita Balija, John Cannan, Steven Thorpe, and especially Lindsay Steussy, for helping track down a wide range of material with admirable speed and efficiency. Jerry Arrison deserves special accolades for his assistance in making my dream of online endnotes a reality.
For their help and encouragement, I thank my colleagues at Drexel and Brooklyn Law, as well as an army of friends who read parts of the proposal and manuscript, guided me toward useful sources, and provided invaluable advice, in particular Adam Alter, Dena Gromet, Peter Leckman, Catherine Price, Dominic Tierney, and Benjamin Wallace-Wells. My collaborator Geoff Goodwin has played an especially prominent role in shaping my thoughts on the book’s core topics. He is as rigorous and bright a scientist as I’ve met, and I have learned a tremendous amount from him, not because we always agree on things, but because frequentl
y we don’t. Our research on punishment was supported by a generous grant from the National Science Foundation, to which I am very grateful.
One of the corollaries to the discussion on the biological and environmental causes of criminal behavior is that our positive actions are also indelibly shaped by our families. This book is no exception. I know how lucky I am to have been born into such a wonderful, encouraging, and loving home. Jay, Beth, and Nate, I would not have had the diverse interests, grit, and intelligence to write this book without your presence in my life. I also thank my extended family for their support, including my grandmother, Lenore, a poet, who at ninety still writes me weekly letters: whether genetic or learned, her passion for the written word runs in my veins.
This book is dedicated to my wife, Brooke, and my daughter, Mira. Brooke, you are an amazing woman, my greatest champion, and my greatest comfort. Mira, you are the most wondrous person I’ve ever met. I love you both more than you can know. My major regret is that my sacrifices in writing this book fell on your shoulders as well. But they were also sacrifices for you: I want you both to live in a better world than the one we have.
Endnotes
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