Unfair

by Adam Benforado

  Which one was a tightrope walker: “William Johnston,” New Zealand Police Museum, accessed May 13, 2014, https://plus.google.com/photos/1051448457432646m30/​albums/5450146114861830929/​5450149070403000498?banner=pwa&pid=5450149070403000498&oid=1051448457432646m30.

  Which one was sentenced: “John Powell,” New Zealand Police Museum, accessed May 13, 2014, https://plus.google.com/photos/105144845743264611130/albums​/5450146114861830929/5450148046638424946​?banner=pwa&pid=5450148046638424946&oid=105144845743264611130.

  When a suspect was recently apprehended: Michael Muskal, “Exterminator Charged with Murder in Death of Philadelphia Doctor,” Los Angeles Times, January 24, 2013, http://articles.latimes.com/​2013/jan/24/​nation/la-na-nn-philadelphia-exterminator-murder-20130124.

  And as I began writing: Frank Masters; John Powell; Alick Evan McGregor; William Johnston.

  The Internet provides a titillating: “Celebrity Mugshots,” CNN.com, last updated March 20, 2013, http://www.cnn.com/​2013/03/19/showbiz/celebrity-news-gossip/bruno-mars-mugshot-smile-gq; http://www.bing.com/​search?q=hot+mug+shots&qs=n&​form=QBRE&pq=hot+mug+shots​&sc=1-12&sp=-1&sk=.

  The rapist was the man: “Frank Masters.”

  The others in the lineup: “John Powell”; “Alick Evan McGregor”; “William Johnston.”

  Masters was a serial sex offender: “This Day: An Extraordinary Scene,” Evening Post, December 4, 1889, http://paperspast.natlib.govt.nz/​cgi-bin/paperspast?a=d&cl=search&d=EP18891204.2.45&srpos=58&e=——10​–51-byDA—2%22frank+masters%22-all; “Urgent Private Affairs,” Evening Post, June 10, 1886, http://paperspast.​natlib.govt.nz/​cgi-bin/paperspast?a=d&d=EP18860610.2.11.

  Though all of those affected: “Frank Masters”

  Even if we could trade: “This Day.”

  During his fourth trial: “Criminal Sittings,” Evening Post, October 5, 1888, http://paperspast.natlib.govt.nz/​cgibin/paperspast?a=d&cl=​search&d=EP18881005.2.54&srpos=20&​e=——10–11-byDA—2%22frank+masters%22-all.

  And at the suggestion of his lawyer: “Criminal Sittings.”

  Nonetheless, Dr. Johnston: “Criminal Sittings.”

  So, despite Masters’ pleas: “Criminal Sittings.”

  At his sentencing for that crime: “This Day.”

  “He couldn’t help himself”: “This Day.”

  In addition to “suggesting that he should”: “This Day.”

  He wanted to do good: “This Day.”

  The reporter who recounted: “This Day.”

  But the judge was less sure: “This Day.”

  We all have intuitions: Sharrona Pearl, About Faces: Physiognomy in Nineteenth-Century Britain (Cambridge, MA: Harvard University Press, 2010), 1, 38.

  The idea that a person’s facial traits: Pearl, About Faces, 1, 11.

  The message in the wind: Pearl, About Faces, 186.

  Darwin, Edison, and Daguerre: “Victorian Science: An Introduction,” Victorian Web, last modified December 6, 2008, http://www.victorianweb.org/​science/intro.html.

  One of those swept up: Encyclopedia Britannica Online, s.v. “Cesare Lombroso,” accessed May 18, 2014, http://www.britannica.com/​EBchecked/topic/346759/Cesare-Lombroso.

  The Lombrosians were convinced: Simon A. Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification (London: Harvard University Press, 2001), 23.

  They were particularly interested: Cole, Suspect Identities, 23.

  One of Lombroso’s epiphanies: Gina Lombroso-Ferrero, Criminal Man According to the Classification of Cesare Lombroso (New York: The Knickerbocker Press, 1911), xv.

  Those among us who seemed: Lombroso, Criminal Man, xv.

  They were “born criminals”: Jonathan Finn, Capturing the Criminal Image: From Mug Shot to Surveillance Society (Minneapolis: University of Minnesota Press, 2009), 14; Lombroso, Criminal Man, xv.

  In order to identify those “degenerates”: Cole, Suspect Identities, 23; Finn, Capturing the Criminal Image, 15; Encyclopedia Britannica, “Cesare Lombroso.”

  He and his followers set about: Cole, Suspect Identities, 23.

  These were all on: Cole, Suspect Identities, 24.

  Man and cow image: “File: De Humana Physiognomia-Kuh und Mann.jpg,” Wikimedia Commons, last modified August 1, 2008, http://commons.wikimedia.org/​wiki/File:De_Humana_Physiognomia_​-_Kuh_und_Mannjpg/.

  Lombroso’s project was greatly: Finn, Capturing the Criminal Image, 15–16.

  There were devices to record: Finn, Capturing the Criminal Image, 15–16.

  Perhaps my favorite invention: Cole, Suspect Identities, 58; Robert Fletcher, “The New School of Criminal Anthropology” (Washington, DC: The Anthropological Society of Washington, April 21, 1861), 24–25.

  Frigerio claimed that criminals: Fletcher, “The New School of Criminal Anthropology,” 24–25.

  In the quest to record: Cole, Suspect Identities, 22.

  Although mug shots were initially used: The first use of photography in fighting crime was a simple means of making manifest a person’s otherwise hidden criminal past. Cole, Suspect Identities, 20–22. And, in that sense, it paralleled earlier practices of altering the body of the criminal to signal his evil nature. Cole, Suspect Identities, 7. In preceding centuries, ne’er-do-wells had been literally marked. Cole, Suspect Identities, 7.

  Medieval Europeans, for example, commonly resorted to branding and mutilation, and there are recorded examples in the American colonies as well. Cole, Suspect Identities, 7. Many readers will be familiar with Hester Prynne’s scarlet letter A, but an alphabet soup of marks existed to convey to any onlooker the particular criminal character of the man or woman in question. Cole, Suspect Identities, 7; James A. Cox, “Bilboes, Brands, and Branks: Colonial Crimes and Punishments,” Colonial Williamsburg Journal, Spring 2003, http://www.history.org/​foundation/journal/spring03/branks.cfm. In Maryland, each county had an array of branding irons: F for forgery, H for stealer of hogs, M for manslaughter, SL for seditious libel, R for rogue, and T for thief. Cox, “Bilboes, Brands, and Branks.” The camera rendered such markings unnecessary—with a photographic record linking a man to his bad act, a preexisting mole or crooked nose could provide the same information.

  The British and French recorded images of prisoners as early as the 1840s. Cole, Suspect Identities, 20. And, in the subsequent decades in the United States, police departments began to assemble “rogues’ galleries” that could be displayed for members of the police—and sometimes the public—to view hundreds of photographs of known criminals in order to be able to note them later. Cole, Suspect Identities, 20-21. By comparing and cataloguing these photos, physiognomists hoped to capture the signs of criminal nature in the body with great accuracy. Cole, Suspect Identities, 24.

  One British innovator, Francis Galton: Wayne A. Logan, “Policing Identity,” Boston University Law Review 92 (2012): 1573; Cole, Suspect Identities, 24.

  What does a hotel thief: Cole, Suspect Identities, 24.

  Galton would take the pictures: Cole, Suspect Identities, 24.

  Conceivably, a person could then: Cole, Suspect Identities, 26.

  The work of Galton: People had devoted their professional lives to devising complex classification systems, writing books, creating journals, circulating pamphlets, and holding society conferences, and it was mostly all bogus. Pearl, About Faces, 189.

  And far worse, their crackpot: Finn, Capturing the Criminal Image, 16–17, 20.

  It seems we have come: “Dachau Liberated: April 29, 1945,” This Day in History, History.com, accessed May 19, 2014, http://www.history.com/​this-day-in-history​/dachau-liberated.

  We teach the forcible sterilizations: John Kitzhaber, “Proclamation of Human Rights Day, and Apology for Oregon’s Forced Sterilization of Institutionalized Patients” (speech, Salem, OR, December 2, 2002); Elizabeth Cohen, “North Carolina Lawmakers OK Payments for Victims of Forced Sterlization,” CNN.com, July 28, 2013, http://www.cnn.com/​2013/07/26​/us/north-carolina-steriliza
tion-payments.

  Those, like Sylvester Stallone’s mother: Hope Reeves, “I See…Hemorrhoids in Your Future,” New York Times, March 10, 2013, http://www.nytimes.com/​interactive/2013/03​/10/magazine/one-page-magazine.html?_r=0.

  Working toward an objective: And, indeed, both men’s work was the target of significant contemporary criticism from other criminologists. Neil Davie, “Lombroso and the ‘Men of Real Science’: British Reactions, 1886–1918,” in The Cesare Lombroso Handbook, eds. Paul Knepper and P.J. Ystehede (New York: Routledge, 2013), 344–47; Neil Davie, Tracing the Criminal: The Rise of Scientific Criminology in Britain, 1860–1918 (Oxford: The Bardwell Press, 2005), 21–22, 105–06, 257–59. Galton was even able to admit that his initial theory that criminals could be identified based on their fingerprints turned out to be false. Pearl, About Faces, 207.

  Just as problematic, in considering: Adam Benforado, “The Geography of Criminal Law,” Cardozo Law Review 31, no. 3 (2010): 825–27 nn. 6–12.

  As a general matter, we’re inclined: Lee Ross and Donna Shestowsky, “Contemporary Psychology’s Challenges to Legal Theory and Practice,” Northwestern University Law Review 97, no. 3 (2003): 1092–93; Alan Page Fiske et al., “The Cultural Matrix of Social Psychology,” in The Handbook of Social Psychology, 4th ed., vol. 2, eds. Daniel T. Gilbert, Susan T. Fiske, and Gardner Lindzey (New York: Oxford University Press, 1998), 920.

  And when we hear about some: Arthur G. Miller, ed., The Social Psychology of Good and Evil (New York: Guilford Press, 2004), 2–3.

  We tend not to pay much attention: Ross and Shestowsky, “Contemporary Psychology’s Challenges to Legal Theory and Practice,” 1092–93; Fiske et al., “The Cultural Matrix of Social Psychology,” 920; Benforado, “The Geography of Criminal Law,” 826–27. This is particularly true for those of us who live in Western individualistic cultures. Miller, The Social Psychology of Good and Evil, 24; Ross and Shestowsky, “Contemporary Psychology’s Challenges to Legal Theory and Practice,” 1093.

  Normally, we stick with our simple: Ross and Shestowsky, “Contemporary Psychology’s Challenges to Legal Theory and Practice,” 1092–93; Fiske et al., “The Cultural Matrix of Social Psychology,” 920.

  Sometimes that turns out to be right: One fifteen-state study by the U.S. Bureau of Justice Statistics showed that only 1.2 percent of those released after being convicted of murder were rearrested for homicide within three years. Patrick A. Langan and David J. Levin, U.S. Department of Justice, Recidivism of Prisoners Released in 1994 (Washington, DC: Bureau of Justice Statistics, June 2, 2002), 1, http://www.bjs.gov/​content/pub​/pdf/rpr94.pdf. More broadly, approximately half of all of those convicted of homicide have no arrests for any crimes in the five years after being released. Matthew R. Durose, Alexia D. Cooper, and Howard N. Snyder, U.S. Department of Justice, Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (Washington, DC: Bureau of Justice Statistics, April 2014), 8, http://www.bjs.gov/​content/pub/pdf​/rprts05p0510.pdf. Counterintuitively, violent offenders appear significantly less likely to reoffend than those convicted of property or drug offenses. Approximately three out of four state prisoners are rearrested within five years of being released. Durose, Cooper, and Snyder, Recidivism of Prisoners, 7.

  Our “mug shot” approach: Miller, The Social Psychology of Good and Evil, 2.

  By imagining most criminals as: Ross and Shestowsky, “Contemporary Psychology’s Challenges to Legal Theory and Practice,” 1092–93; Fiske et al., “The Cultural Matrix of Social Psychology,” 920.

  The answer is nothing more: Henry T. Greely, “Law and the Revolution in Neuroscience: An Early Look at the Field,” Akron Law Review 42 (2009): 687–88.

  Take away these electrochemical interactions: Greely, “Law and the Revolution in Neuroscience,” 688.

  How could that thing be nothing more: David Eagleman, “What Our Brains Can Teach Us,” New York Times, February 22, 2013, http://www.nytimes.com/​2013/02/23​/opinion/what-our-brains-can-teach-us.html?_r=1&.

  There wasn’t some villainous spirit: “Brain Facts and Figures,” University of Washington, accessed May 20, 2014, http://faculty.washington.edu/​chudler/​facts.html.

  Even back in Masters’ time: Shelley Batts, “Brain Lesions and their Implications in Criminal Responsibility,” Behavioral Sciences and the Law 27 (2009): 266–67, doi: 10.1002/bsl.

  Perhaps the most famous example: Mark Wheeler, “UCLA Researchers Map Damaged Connections in Phineas Gage’s Brain,” UCLA Newsroom, May 16, 2012, http://newsroom.ucla.edu/​releases/embargoed-for​-release-until-wednesday-233846; Dean Mobbs et al., “Law, Responsibility, and the Brain,” PLOS Biology 5, no. 4 (April 2007): 693, doi: 10.1371/journal.pbio.0050103.

  Gage’s fame all came down: Wheeler, “UCLA Researchers Map Damaged Connections in Phineas Gage’s Brain.”

  His actions (perhaps not unexpectedly): Wheeler, “UCLA Researchers Map Damaged Connections in Phineas Gage’s Brain.”

  In an amazing bit of luck: Mobbs et al., “Law, Responsibility, and the Brain,” 693.

  But as his friends quickly noticed: Mobbs et al., “Law, Responsibility, and the Brain,” 693.

  Respectful, pleasant, and dutiful: Mobbs et al., “Law, Responsibility, and the Brain,” 693; Martha J. Farah, “Neuroethics: The Practical and Philosophical,” TRENDS in Cognitive Science 9, no. 1 (2005): 37–38; Wheeler, “UCLA Researchers Map Damaged Connections in Phineas Gage’s Brain.”

  The injury to particular parts: Batts, “Brain Lesions and their Implications in Criminal Responsibility,” 266–67.

  But there is no evidence that: Sam Kean, “Phineas Gage: Neuroscience’s Most Famous Patient,” Slate, May 6, 2014, http://www.slate.com/​articles/health_and_science/science/2014/05/phineas_gage_neuroscience_case_true_story_of_famous_frontal_lobe_patient.html; Jeffrey M. Burns and Russell Swerdlow, “Right Orbitofrontal Tumor with Pedophilia Symptom and Constructional Apraxia Sign,” Archives of Neurology 60 (2003): 437.

  In 2000, a married forty-year-old: Stephen J. Morse, “Neuroimaging Evidence in Law: A Plea for Modesty and Relevance,” in Neuroimaging in Forensic Psychiatry, ed. Joseph Simpson, (Oxford: John Wiley & Sons, 2012), 353; Burns and Swerdlow, “Right Orbitofrontal Tumor,” 437. The name “Mr. Oft” is a pseudonym.

  As a first-time offender: Burns and Swerdlow, “Right Orbitofrontal Tumor,” 437; Greely, “Law and the Revolution in Neuroscience,” 700.

  Even though he understood that: Burns and Swerdlow, “Right Orbitofrontal Tumor,” 437.

  Oft was kicked out: Burns and Swerdlow, “Right Orbitofrontal Tumor,” 437; Greely, “Law and the Revolution in Neuroscience,” 700.

  It was so bad that he: Burns and Swerdlow, “Right Orbitofrontal Tumor,” 437; Greely, “Law and the Revolution in Neuroscience,” 700.

  But no sooner had his: Burns and Swerdlow, “Right Orbitofrontal Tumor,” 438. He also urinated on himself, had trouble walking, and struggled on certain neurological tests, including being unable to draw a clock and write legibly. Morse, “Neuroimaging Evidence in Law,” 353.

  What they found was staggering: Greely, “Law and the Revolution in Neuroscience,” 700; Tom Valeo, “Legal-Ease: Is Neuroimaging a Valid Biomarker in Legal Cases?” Neurology Today 12, no. 8 (April 19, 2012): 39, doi: 10.1097/01.NT.0000414615.73995.c8.

  The surgery to remove it provided: Burns and Swerdlow, “Right Orbitofrontal Tumor,” 438; Greely, “Law and the Revolution in Neuroscience,” 700–01.

  Seven months later: Burns and Swerdlow, “Right Orbitofrontal Tumor,” 438.

  By October 2001, his headache: Burns and Swerdlow, “Right Orbitofrontal Tumor,” 438; Greely, “Law and the Revolution in Neuroscience,” 701.

  Sure enough, when doctors ordered: Greely, “Law and the Revolution in Neuroscience,” 701.

  And with a second surgery: Burns and Swerdlow, “Right Orbitofrontal Tumor,” 438; Greely, “Law and the Revolution in Neuroscience,” 701; The Royal Society, “Brain Waves Module 4: Neurosc
ience and the Law,” Brain Waves 4 (December 2011): 15, https://royalsociety.org​/~/media/Royal_Society_Content/policy​/projects/brain-waves/Brain-Waves-4.pdf.

  But it is important to understand: Morse, “Neuroimaging Evidence in Law,” 352; Greely, “Law and the Revolution in Neuroscience,” 699–701. For instance, we do not know for certain how much Gage and Oft could actually control their antisocial behavior. Morse, “Neuroimaging Evidence in Law,” 353.

  A better approach for revealing: Phillip M. Boffey, “The Next Frontier Is Inside Your Brain,” New York Times, February 23, 2013, http://www.nytimes.com/​2013/02/24/​opinion/sunday/the-next-frontier-is-in-your-brain.html. In particular, neuroscientists have focused on known offenders, individuals who have experienced particular brain traumas or who were born with certain identifiable brain deficiencies, and noncriminals who appear to have no brain anomalies. Boffey, “The Next Frontier Is Inside Your Brain.” As with the case of Mr. Oft, we also sometimes compare people to themselves at different ages. Susan E. Rushing, Daniel A. Pryma, and Daniel D. Langleben, “PET and SPECT,” in Neuroimaging in Forensic Psychiatry, ed. Joseph Simpson (Oxford: John Wiley & Sons, 2012), 17.

  Our prisons, for example, contain: Mobbs et al., “Law, Responsibility, and the Brain,” 695; “Mental Illness Not Linked to Crime, Research Finds,” American Psychological Association, last modified April 21, 2014, http://www.apa.org/​news/press/releases/2014​/04/mental-illness-crime.aspx. Moreover, illnesses tend to cluster together. As one example, it is estimated that between 75 percent and 93 percent of pedophiles also have other mental disorders, like depression or anxiety. Christine Wiebking et al., “Pedophilia,” in Neuroimaging in Forensic Psychiatry, ed. Joseph Simpson (Oxford: John Wiley & Sons, 2012), 102. And 60 percent have been shown to have personality disorders. Wiebking et al., “Pedophilia,” 102.

  However, it is important to note that although those with mental illness are incarcerated at much higher rates than those without mental illness, criminal behavior may not be directly related to the symptoms of mental illness. That is, the crimes committed by those with schizophrenia, for example, appear to only rarely result directly from hallucinations and delusions. Jillian K. Peterson et al., “How Often and How Consistently Do Symptoms Directly Precede Criminal Behavior Among Offenders with Mental Illness?” Law and Human Behavior 38, no. 5 (2014): 439–49, doi: 10.1037/lhb0000075.