Unfair

by Adam Benforado

  And the grim fortress: Subramanian and Shames, Sentencing and Prison Practices, 3.

  In 2013, more than 150 years: Subramanian and Shames, Sentencing and Prison Practices, 2, 4. Delegations from Colorado and Georgia also participated in the trip. Subramanian and Shames, Sentencing and Prison Practices, 4.

  At the German and Dutch prisons: Subramanian and Shames, Sentencing and Prison Practices, 12–13. Inmates are also commonly allowed other privacy rights denied American prisoners, with guards knocking before entering a cell and walled toilets. In addition, the physical space of the prison in Germany and the Netherlands is not meant to be unpleasant like in the United States: there are plenty of windows and light. Subramanian and Shames, Sentencing and Prison Practices, 12.

  Women with children under three: Subramanian and Shames, Sentencing and Prison Practices, 12.

  And prisoners were provided with: Subramanian and Shames, Sentencing and Prison Practices, 13.

  Solitary confinement was very rare: Subramanian and Shames, Sentencing and Prison Practices, 13.

  To encourage proper conduct: Subramanian and Shames, Sentencing and Prison Practices, 12. In keeping with the research on optimal deterrence, when inmates violate a prison rule, discipline is quickly meted out and it is tailored specifically to the violation. Subramanian and Shames, Sentencing and Prison Practices, 13, 18.

  And when offenders were released: Subramanian and Shames, Sentencing and Prison Practices, 13.

  The reason is simple: Subramanian and Shames, Sentencing and Prison Practices, 7.

  It’s right there: Subramanian and Shames, Sentencing and Prison Practices, 7.

  Germany’s Prison Act, for example: Subramanian and Shames, Sentencing and Prison Practices, 7.

  To help inmates with that eventual transition: Subramanian and Shames, Sentencing and Prison Practices, 7. The Netherlands 1998 Penitentiary Principles Act places a similar emphasis on encouraging and maintaining connections between those outside the prison and those inside the prison. Subramanian and Shames, Sentencing and Prison Practices, 7.

  Incarcerating them makes little sense: Subramanian and Shames, Sentencing and Prison Practices, 14.

  Norway has one of the lowest: William Lee Adams, “Norway Builds the World’s Most Humane Prison,” Time, May 10, 2010, http://content.​time.com/​time/magazine/article/0,9171,1986002,00.html#ixzz0n9t8l6FT. Different countries use different ways to measure reoffending, which makes direct comparisons between countries difficult. Subramanian and Shames, Sentencing and Prison Practices, 6. That said, it is clear that the rate is far lower than in the United States. Adams, “Norway Builds the World’s Most Humane Prison.” In addition, it is worth noting that because Halden only opened in 2010, there is not sufficient data yet to draw any conclusions about reoffending at the specific prison. Jan R. Strømnes, deputy governor of Halden prison, e-mail message to author, February 11, 2014.

  In Germany, only one percent: Subramanian and Shames, Sentencing and Prison Practices, 13.

  And it’s true that the success: Gopnik, “The Caging of America”; Liptak, “Inmate Count in U.S. Dwarfs Other Nations’.”

  Britain, which managed to turn away: Gawande, “Hellhole.”

  But British leaders found the courage: Gawande, “Hellhole.”

  Even stronger evidence that American: Subramanian and Shames, Sentencing and Prison Practices, 15–18.

  In just the last five years: Jacob McCleland, “The High Costs of High Security at Supermax Prisons,” NPR, June 19, 2012, http://www.npr.org/​2012/06/19/​155359553/the-high-costs-of-high-security​-at-supermax-prisons. In 2014, the New York State prison and jail systems enacted reforms directly targeting the overuse of solitary confinement, including limiting (or, in some cases, barring) the use of isolation for those with mental illness or developmental disabilities. “New York Rethinks Solitary Confinement,” New York Times, February 20, 2014, http://www.nytimes.com/​2014/02/21/opinion/new-york-rethinks-solitary-confinement.html; Benjamin Weiser, “New York State in Deal to Limit Solitary Confinement,” New York Times, February 19, 2014, http://www.nytimes.com/​2014/02/20/nyregion/new-​york-state-agrees-to-big-changes-in-​how-prisons-di scipline-inmates.html.

  For a country that trumpets its: Some scholars have suggested expanding the text of the Eighth Amendment to ban prolonged solitary confinement, as well as the death penalty. Resnick and Curtis-Resnick, “Abolish the Death Penalty and the Supermax, Too.”

  11. What We Must Overcome ~ The Challenge

  The first step was to fill out: Juror Information Questionnaire, 234 Pa. Code Rule 632, http://www.pacode​.com/​secure/data​/234/chapter6​/s632.html.

  “Would you be more likely”: Juror Information Questionnaire.

  “Would you have any problem”: Juror Information Questionnaire.

  “Is there any other reason”: Juror Information Questionnaire.

  And this puts us in a worse: To see why that is the case, consider a medical system that instead of testing people, simply asked them “Do you have HIV?” and then advised those who said “yes” to cure themselves by choosing to “turn off” the virus. Though intended to reduce the transmission of the disease, the system would have the exact opposite effect: initial infection with HIV cannot be identified through introspection nor cured through positive thinking, and this approach would lead asymptomatic people infected with the virus to conclude that they were healthy and those who were sick to believe that they were cured, increasing the likelihood that they would engage in behaviors likely to spread the affliction.

  In the Third Circuit, for instance: Model Criminal Jury Instructions, United States Court of Appeals for the Third Circuit § 1.01, http://www.ca3.uscourts.gov/​sites/​ca3/files/2012%​20Chapter%201_0.pdf.

  “Do not allow sympathy”: Model Criminal Jury Instructions § 1.02.

  Likewise, whenever the judge sustains an objection: Model Criminal Jury Instructions § 1.08.

  And if the judge orders evidence: Model Criminal Jury Instructions § 1.08.

  Out of thin air, the Third Circuit: During the second-degree murder trial of George Zimmerman, the prosecution’s claim was that Zimmerman had racially profiled seventeen-year-old Trayvon Martin before killing him and that he was the aggressor, stalking Martin as he walked back to his father’s fiancée’s townhouse. Cara Buckley, “State’s Witnesses in Zimmerman Trial Put the Prosecution on the Defensive,” New York Times, July 2, 2013, http://www.nytimes.com/​2013/07/03/​us/prosecutors-in​-zimmerman-trial-ask-jury-to-disregard-comments.html?_r=0; Yamiche Alcindor, “Officer Testimony No Slam Dunk for Zimmerman Prosecutors,” USA Today, July 2, 2013, http://www.usatoday.com/​story/news/nation/​2013/07/02/​zimmerman-trayvon-martin-murder-trial/2482325/. However, in a critical moment at trial, Officer Chris Serino of the Sanford Police stated that, in interviewing the defendant following the incident, Zimmerman appeared to be truthful in recounting that he had shot seventeen-year-old Trayvon Martin in self-defense. Buckley, “State’s Witnesses Put Prosecution on Defense.” Having your own witness confirm the central account of the other side can lose a case, but the prosecution did not object immediately. Buckley, “State’s Witnesses Put Prosecution on Defense.” By the next day, though, having considered its options, the prosecution decided to argue that Serino’s testimony on Zimmerman’s credibility ought to be excluded. Alcindor, “Officer Testimony No Slam Dunk.” The judge agreed and the jurors were simply told to ignore what they had heard and considered in the intervening hours. Alcindor, “Officer Testimony No Slam Dunk.” While we cannot know exactly why the prosecution went on to lose the case, as discussed earlier, experimental evidence casts serious doubt on the effectiveness of the judge’s admonition. Matthew Hutson, “Unnatural Selection,” Psychology Today 40 (2007): 95. Our judicial procedures have conjured up a magical delete button in jurors’ brains that simply does not exist. Hutson, “Unnatural Selection,” 95.

  When significant injustice has come: University of Virginia School of Law, �
��Promoting Policing at Its Best,” Virginia Journal 15 (2012): 39.

  In the 1960s, for instance: University of Virginia School, “Promoting Policing at Its Best,” 39.

  Faced with the specter of coerced confessions: Miranda v. Arizona, 384 U.S. 436, 479 (1966).

  Does the Constitution’s prohibition: Bond v. United States, 529 U.S. 334 (2000); State v. Sobczak, 347 Wis.2d 724 (2013).

  In the case of Miranda rights: Salinas v. Texas, 133 S.Ct. 2174 (2013).

  If the police begin to interrogate: Salinas, 133 S.Ct. at 2180; Miranda, 384 U.S. at 479.

  Likewise, the Supreme Court has stated: Salinas, 133 S.Ct. at 2180.

  If the police ask you to come: Salinas, 133 S.Ct. at 2180.

  Far from ensuring our goal: Is it true that the Fourth, Fifth, and Sixth Amendments are the major influences governing police officer and prosecutor interactions with members of the public—and that they have shielded the innocent, while exposing the guilty to the sword of the law? Is it true that the Eighth Amendment is the primary factor impacting the treatment of prisoners? I would suggest that the answer to these questions is a strong no. Procedural protections are important, but the best evidence from social science is that they are not the major movers of our legal actors and that they are insufficient, in and of themselves, to secure the justice that we seek. University of Virginia School, “Promoting Policing at Its Best,” 41.

  The Supreme Court’s handling of: Joel D. Lieberman, “The Utility of Scientific Jury Selection: Still Murky After 30 Years,” Current Directions in Psychological Science 20 (2011): 48.

  Allowing counsel on both sides: Jennifer K. Robbennolt and Matthew Taksin, “Jury Selection, Peremptory Challenges and Discrimination,” APA Monitor on Psychology 40 (2009): 18.

  But in practice the rule was often used: Samuel Sommers and Michael Norton, “Race-Based Judgments, Race-Neutral Justifications: Experimental Examination of Peremptory Use and the Batson Challenge Procedure,” Law and Human Behavior 31 (2007): 262–64.

  Facing significant criticism, the Supreme Court finally: Equal Justice Initiative, “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy” (2010): 12, http://www.law.berkeley.edu/​files/​thcsj/IllegalRacialDiscriminationJurySelection.​pdf; Sommers and Norton, “Race-Based Judgments,” 263–64. When Robert Swain, a black man, unsuccessfully challenged his death penalty conviction based on the fact that there were no black people on his jury (all six African Americans on the panel were struck by the prosecutor), the Supreme Court dissent noted that, despite African Americans making up 26 percent of the jury-eligible population, no African American “within the memory of persons [then] living [had] ever served on any petit jury in any civil or criminal case tried in Talladega Country, Alabama.” Swain v. Alabama, 380 U.S. 202, 231–32 (1965) (Goldberg, J., dissenting).

  Unfortunately, it has not been much: Lieberman, “The Utility of Scientific Jury Selection,” 48.

  The problem, as Justice Thurgood Marshall: Equal Justice Initiative, “Illegal Racial Discrimination in Jury Selection,” 12.

  “The juror worked as a plumber”: Equal Justice Initiative, “Illegal Racial Discrimination in Jury Selection,” 30.

  It need not be persuasive: Equal Justice Initiative, “Illegal Racial Discrimination in Jury Selection,” 15; Sommers and Norton, “Race-Based Judgments,”269.

  Experimental research involving practicing attorneys: Sommers and Norton, “Race-Based Judgments,” 261.

  As a result, in many areas: Lieberman, “The Utility of Scientific Jury Selection,” 48; Sommers and Norton, “Race-Based Judgments,” 261-64.

  Between 2005 and 2009: Equal Justice Initiative, “Illegal Racial Discrimination in Jury Selection,” 14.

  About half of the resulting juries: Equal Justice Initiative, “Illegal Racial Discrimination in Jury Selection,” 14.

  Despite all of the effort: University of Virginia School, “Promoting Policing at Its Best,” 41–42.

  But if you waive your Miranda rights: Dan Simon, In Doubt: The Psychology of the Criminal Justice Process (Cambridge, MA: Harvard University Press, 2012), 138–39; Saul M. Kassin et al., “Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs,” Law and Human Behavior 31, no. 4 (2007): 381–400; Richard A. Leo, “Inside the Interrogation Room,” Journal of Criminal Law and Criminology 86 (1996): 266–303; Brandon Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Cambridge, MA: Harvard University Press, 2011), 36–37, 42; Richard A. Leo et al., “Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century,” Wisconsin Law Review 2 (2006): 479–86.

  To begin with, it would matter: Richard Rogers, “Getting It Wrong About Miranda Rights: False Beliefs, Impaired Reasoning, and Professional Neglect,” American Psychologist 66, no. 8 (2011): 731.

  We would address the fact that roughly: Rogers, “Getting It Wrong About Miranda Rights,” 729.

  And we would care that the vast majority: Simon, In Doubt, 140; Rogers, “Getting It Wrong About Miranda Rights,” 730–31.

  Most critically, we would pay attention: Simon, In Doubt, 139.

  And that allows for truly absurd results: Garrett, Convicting the Innocent, 37; Trial Transcript at 20, People v. Lloyd, No. 85-00376 (Mich. Rec. Ct. May 2, 1985).

  Police departments, for instance: David Shipler, “Why Do Innocent People Confess?” New York Times, February 23, 2012, http://www.nytimes.com/​2012/02/26/​opinion/sunday/why-do-innocent-people​-confess.html?pagewanted=all.

  Officers are encouraged to bring up: Shipler, “Why Do Innocent People Confess?”

  When the Miranda doctrine was first introduced: Simon, In Doubt, 138.

  The same may be said of the historic: Devon W. Carbado, Cheryl I. Harris, and Kimberle Williams Crenshaw, “Racial Profiling Lives On,” New York Times, August 14, 2013, http://www.nytimes.com/​2013/08/15/​opinion/racial-profiling-lives​-on.html?hp&_r=0.

  There is nothing preventing: Carbado, Harris, and Crenshaw, “Racial Profiling Lives On.” What does seem to matter is when those in charge make it clear that stopping and frisking people should stop, whether or not a police officer is technically within the rules. New York Mayor Bill de Blasio made that a major campaign promise and the number of such encounters fell drastically after he entered office. Rocco Parascandola, Jenna O’Donnell, and Larry McShane, “NYPD Stop-and-Frisks Drop 99% in Brooklyn, While Shootings Increase in Brownsville, East New York,” New York Daily News, August 16, 2014, http://www.nydailynews.com/​new-york/nyc-crime/nypd-stop-and​-frisks-drop-99-percent​-shootings-increase-brooklyn​-article-1.1905456.

  If we heeded the evidence: Rogers, “Getting It Wrong About Miranda Rights,” 729.

  And it is revealing that most: Rogers, “Getting It Wrong About Miranda Rights,” 729.

  In recent decades, large companies: Simon Owens, “Is the Academic Publishing Industry on the Verge of Disruption?” U.S. News and World Report, July 23, 2012, 2, http://www.usnews.com/​news/articles/2012​/07/23/is-the-academic-publishing-industry-on-the-verge-of-disruption?page=2.

  When a single journal subscription: Owens, “Academic Publishing Industry,” 1. To make it through, you have to be a member of a university or big business—and even universities are now struggling with the financial burden. This is particularly galling because, each year, billions in taxpayer revenue goes to funding scientific research that ends up being published in journals that deny access to the people who made the research possible in the first place. Owens, “Academic Publishing Industry,” 4.

  And there will always be a danger: Alva Noë, “When Science Becomes News, the Facts Can Go Up in Smoke,” NPR, May 4, 2014, accessed May 4, 2014, http://www.npr.org/blogs/​13.7/2014/05/04​/308926616/​when-science-becomes-​news-the-facts-can-go-up-​in-smoke?utm_source=facebook.​com&utm_medium​=social&utm_campaign=npr&utm_​term=nprnews&utm_content=20140504.

  A scientist who advocates changes: Tamsin Edwards,
“Climate Scientists Must Not Advocate Particular Policies,” Guardian, July 31, 2013, http://www.theguardian.com/​science/political​-science/2013/jul/31/​climate-scientists-policies; Robert T. Lackey, “Science, Scientists, and Policy Advocacy,” U.S. Environmental Protection Agency Papers, Paper 142 (2007), http://digitalcommons.unl.edu/​usepapapers​/142; Robert A. Pielke, Jr., The Honest Broker: Making Sense of Science in Policy and Politics (Cambridge, UK: Cambridge University Press, 2007).

  They are trial consultants: Nicole LeGrande and Kathleen Mierau, “Witness Preparation and the Trial Consulting Industry,” Georgetown Journal of Legal Ethics 17 (2004): 947–48; Richard L. Wiener and Brian H. Bornstein, “Introduction: Trial Consulting from a Psycholegal Perspective,” in Handbook of Trial Consulting, eds. Richard L. Wiender and Brian H. Bornstein (New York: Springer, 2011), 1.

  Before the 1970s there was: LeGrande and Mierau, “Witness Preparation and the Trial Consulting Industry,” 947–48. They even have a dedicated professional organization, the American Society of Trial Consultants. American Society of Trial Consultants, “History and Goals of the American Society of Trial Consultants,” accessed May 4, 2014, http://www.astcweb.org/​public/​article.cfm/society-goals.

  In major litigation, trial consultants: Lieberman, “The Utility of Scientific Jury Selection,” 48.

  Interestingly, these consultants are not: Joel D. Lieberman and Bruce D. Sales, Scientific Jury Selection (Washington, DC: American Psychological Association, 2007), 9.

  Rather, they are social scientists: Lieberman and Sales, Scientific Jury Selection, 9.

  As one litigation consultant explained: Matthew Hutson, “Unnatural Selection,” 95.

  One of the first and most prominent: Caroline B. Crocker and Margaret Bull Kovera, “Systematic Jury Selection,” in Handbook of Trial Consulting, eds. Richard L. Wiender and Brian H. Bornstein (New York: Springer, 2011), 25–26; J. T. Frederick, “Social Science Involvement in Voir Dire: Preliminary Data on the Effectiveness of ‘Scientific Jury Selection,’ ” Behavioral Sciences and Law 2 (1984): 375–94.