In a New York Times op-ed, Drexel lawprof Adam Benforado explains that the legal system’s failings are ours.
WHAT would it take to achieve true criminal justice in America?
Imagine that we got rid of all of the cops who cracked racist jokes and prosecutors blinded by a thirst for power. Imagine that we cleansed our courtrooms of lying witnesses and foolish jurors. Imagine that we removed every judge who thought the law should bend to her own personal agenda and every sadistic prison guard.
We would certainly feel just then. But we would be wrong.
From the outset, the premise is marred by the stated goal, “true criminal justice.” Is there such a thing? If there is, would we really want it? The knee-jerk reaction is, “of course we would, numb nuts. Why wouldn’t we?”
Because in a world of “true criminal justice,” wouldn’t the guilty defendant always be convicted? And if the evidence proving guilt was obtained illegally, that wouldn’t change guilt at all. Is it justice to the victim of the guilty defendant that some dumbass cop violated the defendant’s constitutional rights along the way, so the guilty defendant walks? Where is the victim’s “true criminal justice”?
But then, he goes to what “feels” like justice, to make the point that feelings of justice and justice aren’t the same thing. Having characterized the goal as justice, however, his point gets lost. Justice is a feeling, a sense that things have worked out in a way that makes you feel as if all is right with the outcome. So if it feels like justice, it is justice.
Yet, none of this has much to do with Benforado’s point, and is merely a reflection of sloppy language and the conflation of feelings and reality. Justice is not empirical. However, most of what is done in the name of the criminal justice system can be assessed empirically, which is what Benforado is talking about.
The reason is simple and almost entirely overlooked: Our legal system is based on an inaccurate model of human behavior. Until recently, we had no way of understanding what was driving people’s thoughts, perceptions and actions in the criminal arena. So, we built our institutions on what we had: untested assumptions about what deceit looks like, how memories work and when punishment is merited.
But we now have tools — from experimental methods and data collection approaches to brain-imaging technologies — that provide an incredible opportunity to establish a new and robust foundation.
Whether empiricism allows us a reliable method to understand “what was driving people’s thoughts, perceptions and actions” is a dubious claim, but one guided by the fashionable multidisciplinary approach to law, in this case psychology and statistics. While we still lack the ability to see into people’s minds, we do know that many of the system’s “untested assumptions” are flawed.
Benforado then goes through a litany of flawed evidence that is so deeply embedded in the legal system, and the public’s grasp of law. There is the obvious, like eyewitness identification, camera bias and false confessions, and then more “esoteric” points:
Even seemingly objective forensic analysis is far from incorruptible. Recent data shows that fingerprint — and even DNA — matches are significantly more likely when the forensic expert is aware that the sample comes from someone the police believe is guilty.
Yes, you know this is flawed, but juries adore expert scientific-ish testimony, which relieves them of the terrible burden of fact-finding by doing it for them in a way that makes them feel as if there was no other possible conclusion. One in ten gazillion? Well, then, what else could we do but convict?
We assume that the specific text of the law is critical to whether someone is convicted of rape, but research shows that the details of the criminal code — whether it includes a “force” requirement or excuses a “reasonably mistaken” belief in consent — can be irrelevant. What matters are the backgrounds and identities of the jurors.
Despite what anyone says about voir dire, it’s voodoo. We can find out some things about a juror, but never enough, and never certain enough to think we truly get what is going on in their heads. We make assumptions about people, stereotype them, from things like the TV shows they watch, their job, their friends and family members, but that’s all superficial stuff. We do not know them. We never know them, really. Anyone who says they do is deluding themselves or lying.
Likewise, Americans have been sold a myth that there are two kinds of judges — umpires and activists — and that being unbiased is a choice that a person makes. But the truth is that all judges are swayed by countless forces beyond their conscious awareness or control. It should have no impact on your case, for instance, whether your parole hearing is scheduled first thing in the morning or right before lunch, but when scientists looked at real parole boards, they found that judges were far more likely to grant petitions at the beginning of the day than they were midmorning.
Putting aside Benforado’s not being aware that parole boards aren’t staffed by judges, his point remains accurate. We have far more data points from which to arrive at an educated guess as to what a judge will do, but we still know that there are forces at work beyond our ken.
Benforado argues that we can reinvent the legal system based upon science. In some instances, there is no question that we now have the empirical knowledge that conclusively shows that certain aspects of the system, in which we repose sufficient trust to put a person to death, are based on false assumptions, deeply embedded beliefs that they are true and accurate when science informs us they’re not.
But it doesn’t require reinvention to address these failings, just some judges with the guts to put an end to the introduction of faith-based evidence. By overshooting his mark, however, Benforado does what he condemns about the system now. He replaces one set of deeply held beliefs for another, the lure of empiricism as the solution to humanity’s frailties.
As long as the system relies on people, from judges to cops, prosecutors to defense lawyers, jurors to witnesses, it will be flawed. We are flawed. We are the weakest link, and no amount of science is going to change the fact that to err is human. Benforado wants to achieve “true criminal justice.” I would be happy if we didn’t screw up nearly as much as we do now.
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The tech of the Sentence-o-matic™
Can expand to make law technocratic.
Design one to test guilt,
And once it is built,
What’s True Justice™ will always be static!
I wondered how long it would take for Jake to bring up Sentence-o-matic. But you? The first comment? Dang.
This Drexel prof’s great lucubration
is in search of a robust foundation.
But to my beady eye,
the inquiry is dry.
It can’t hurt to apply lubrication.
SHG,
Science can inform, but not decide. I am big on the idea of using scientific principles and data (primarily criminology, psychology and statistics) to inform our sentencing decisions.
However, during my law practice, and in a variety of cases I have heard as a judge (the partial-birth abortion cases are an example), I have crossed swords with too many scientists who have agendas to believe that science is mostly agnostic. Moreover, we are at an infancy in understanding human behavior, so we ought to be very careful about expecting too much. We would do well to remember the doctor’s creed, “First, do no harm.”
All the best.
RGK
I wholeheartedly agree. But some agnostic science is well founded, like double blind sequential line ups, the need to allow the defense to call false confession experts, truly independent forensic labs for blind drug, DNA and print matching.
Much as science can only inform, not decide, every trial lawyers knows the impact of a science guy on the stand, and that the instruction that the jury can disregard the expert rings hollow.
As to the Sentence-o-matic 1000, I’m not a fan.
Yes, those are the things that can be implanted as part of the system. Double blind testing for all forensics (so the scientists in the lab don’t know what case they are working on, nor even if they are doing a test at the prosecution’s request, at the defense’s request, at the court’s request, or neither (like a control test to test the validity of the lab)).
And given the problems with eyewitness identification and false confessions and the disproportionate impact both can have on juries, I think the information normally imparted by an expert would be better put into standard jury instructions, so it is the court itself telling the jury not to put too much stock into confessions because of all the reasons there could be a false confession and to take eyewitness testimony with a grain of salt. In fact, I have seen some good videos that explain both issues very well – maybe those videos could be shown to the jury as well. The juries here already see videos giving other information before they even set foot in the courtroom.
That would not preclude having an expert, but given the difficulties in getting a court to authorize and pay for a defense expert it may be a better alternative. Also, coming directly from the judge and the court it will have a stronger impact than if it is just seen as something coming from a hired gun for the defense.
Of course, I somehow doubt a single one of the above suggestions would ever be implemented, but then I may just be too cynical.
Does this strike you as a post on whether experts or jury instructions is the best method of getting the point across? Focus.
I am glad to see that you have doubts about how well we understand behavior. But you should also have doubts about the quality of criminal justice data. It is improving but it is still not very good.
That’s funny. Even when you win, you lose something. There are no winners, just degrees of loses. Anyone who walks into a courtroom loses something, even if it’s time. Judges and prosecutors–and some cops–seem to have a lot of time on their hands and little understanding of what real people with boots on the ground are going thru in their daily lives. That’s my Two Cents for the day. Too often, it seems like a game of “Gotcha!”
And as for science, they didn’t coin the term “junk science” for no reason whatsoever. We’ve witnessed horrendous junk science in the courtroom. On the flip side, we’ve also witnessed a judge who refused to admit perfectly good science to be admitted into evidence. It is truly bizarre. Why does not The New York Times write about that? (I do not read the Times much anymore BECAUSE of what they REfuse to print.)
Anyhow, it’s always a pleasure to hear from the judge.
There once was a prof named named Benforado,
Who searched for the Legal Eldorado.
When Times’ Op-Editor came a knockin’,
Ben started rockin’,
And blew them away with academic bravado!
(Tornado?!?)
“Lucubration”? That is a new one.
I want anyone who is going to write an editorial about what “brain imaging” is telling us about how humans behave to first attend a couple of actual scientific talks about what “brain imaging” is telling us. People think brain imaging* is magic or something. We are still figuring out how to use fMRI and other methods to say anything other than “excitatory neurons in region A appear to innervate neurons in region B.” Relating them to actual behavior is difficult when the subjects are lying on tables in a little tubes keeping their heads absolutely still. Of course, if they understood much about it they would not be writing editorials…
*The actual technique used is rarely specified, of course.
I don’t understand the professor’s position. People are the flaw with our system but these same flaws allow crime to exist. If we could truly ascertain people’s motivations then we could prevent crime and have far more impact that way then wondering about criminal allegations.
At best, his article is maybe a starting point similar to a Veil of Ignorance theory that strict science and honesty will produce the best results. There’s no disputing that but it won’t happen or we can’t conceive of what it would look like.
We do know of flawed methodology like Reid steps or funnel interrogations lead to false confessions; and hair and blood spatter is more art than science. But until defendants can afford experts (assuming the judge admits it) the false science premises can’t be challenged. And that’s science we know of, much less the science of knowing who’s always truthful.
And professors wonder why we don’t seriously use their law review articles in motions and briefs…I love when I find a good applicable article on law and science or law and testimony with real stats and proper inferences. But quoting from “people make the system bad” is tautological and legally worthless.
Who is going to play the part of the asteroids?