During the trial of Boston Marathon bomber Dzhokhar Tsarnaev, defense attorneys presented to the jury neuroscience research showing that the human brain is still growing until a person reaches their mid-20s. According to the expert witness they called, Tsarnaev’s still-developing brain meant he had poor impulse control, was easily impressionable, and prone to taking dangerous risks.
Drexel University professor Adam Benforado was likely unsurprised when jurors found the neuroscientist unpersuasive. According to his new book, “Unfair,” jurors routinely disregard scientific evidence that conflicts with their pre-determined beliefs. After all, “when an expert witness testifies, we do not tell jurors to simply defer to the good doctor,” he writes. The result is that unqualified people — those without any experience in law, forensic analysis, or psychology — make life and death decisions they are ill-equipped to make.
Laypeople serving as jurors is just one of many problems that Benforado cites as contributing to the “routine and systematic unfairness” that riddles the American criminal justice system . Chapters are devoted to the biases of judges, the misplaced faith in eyewitnesses, the flawed police interrogation process, and the unconscious racism pervading the system, among other dilemmas. They detail a system that results inevitably in “wrongful convictions, biased proceedings, trampled rights, and unequal treatment.”
“Unfair” succinctly and persuasively recounts cutting-edge research testifying to the faulty and inaccurate procedures that underpin virtually all aspects of our criminal justice system, illustrating many with case studies. Some of it is race-related: Numerous studies show that those convicted of murdering white victims are more likely to be sentenced to death than when the victim is African-American. Other research reveals that “subtle reminders” to judges’ and jurors’ of their own mortality “have been shown to increase the severity of punishment across a wide range of scenarios, from assaults to drunk driving.” All of this buttresses Benforado’s contention that “we are not the consistent, rational number crunchers that we suppose.”
“Unfair” proposes a host of reforms, some more realistic than others. Benforado calls for the restoration of voting rights for ex-convicts, for instance, a policy that has been endorsed by presidential candidate Hillary Clinton. Less likely to be implemented is Benforado’s idea of replacing live trials with “virtual trials,” in which participants are represented by avatars, in order to prevent judges and jurors from making ill-considered judgments based on a defendant’s skin color and demeanor.
Part of what makes the plan so unthinkable is that virtual trials are not the norm in other economically advanced nations. This points to a flaw in Benforado’s often compelling pages: “Unfair” ignores the uniqueness of America’s mass incarceration state. Biased judges and jurors are not exclusive to the United States. Neither are faulty memories and shaky scientific testimony.
And yet it is only the United States that imprisons individuals on such a large scale. America has the most prisoners in the world, both by rate and raw numbers. England, for example, imprisons 85,000 people, compared with the more than 2.3 million here. We have 5 percent of the world’s population but 25 percent of the world’s prisoners.
But America was not always the world’s leading incarceration nation. In 1970, there were fewer than 200,000 Americans locked up. Since then, the imprisonment rate has grown more than 400 percent, dramatically outpacing population growth. This suggests that what “Unfair” calls “the key assumptions that our legal system makes about human nature, good and evil, honesty and dishonesty” per se are not responsible for the real problems behind America’s criminal justice system. After all, those same assumptions were in place 45 years ago, and in some cases the legal system has become friendlier to defendants since then, not less.
What caused the tremendous increase in the number of Americans behind bars were largely political decisions made by government officials for harsher criminal penalties, most of them enthusiastically supported by the public. Benforado touches on misplaced punitive sanctions and the desire for revenge, but politicians and the surrounding debate over crime are by and large absent from “Unfair.” “Though we are often unaware of its influence, our basic drive for retribution can create serious problems, undermining the laws we’ve carefully crafted over centuries to balance public safety, protection of the innocent, and fair treatment for the accused,” Benforado writes. True enough, but the desire for retribution is eternal; America’s decision to put 1 in 3 African-American men in the criminal justice system at some point in their lives is not.
None of this is to say that Benforado’s ideas for reducing biases and prejudices in the courtroom and the police station are unwise. They are not. But reducing the prison population — by reforming drug laws, for instance — would perhaps do far more to rectify the many injustices that he details than anything else.
Unfair: The New Science of Criminal Injustice
By Adam Benforado
Crown, 379 pp., illustrated, $26
Jordan Michael Smith is a contributing writer at Salon and The Christian Science Monitor.