Law and Justice
00:41 Douglas Blackmon: Welcome back to American Forum. Our country has been embroiled in an impassioned national debate over the past two years driven by what has appeared to be a surge of questionable killings of American citizens by police in Ferguson, Missouri, in New York City, Baltimore, St. Louis, Charleston, South Carolina, Chicago and on and on. The arguments have been very sharp about what to do and how to fix things. But there has been wide agreement across the political spectrum about what the problems are. That the United States imprisons too many people for too long. That punishment appears to be unfair at least to black citizens. That the system has become too draconian and too expensive. In the months ahead as Americans decide among presidential contenders and then choose our next national leader, these issues will often be at center stage. Among citizens who are most impassioned about what is often called “mass incarceration” the conventional wisdom is that the entire issue is fundamentally about race. About laws designed to be unfair to minority groups and racists police officers abusing African Americans. Our guest today has written one of the most insightful and important new books related to this controversy and one which compels us to reconsider some of those fundamental assumptions about what is happening in America. Adam Benforado is a Harvard Law graduate, law professor at Drexel University and the author of Unfair: The New Science of Criminal Injustice which may be one of the most important books written in a very long time. Thanks for joining us.
Adam Benforado: Thank you so much.
Blackmon: Well I want to start right off with why I wanted you to come on the show and that is, that, I referred to it a second ago in the introduction, that we’ve had this huge debate about mass incarceration and it seems to be overwhelmingly about race and a vestige of past discrimination of the United States, these historical patterns, the mistreatment of African Americans. But I’ve had a problem with that narrative, even though I fundamentally agree with it. But I have been complicated by the fact, in Atlanta for instance, the young African American man who goes to prison for an overly long sentence for an offense that doesn’t seem to merit that, there is a relatively high probability that he was arrested by a black police officer, prosecuted by a black lawyer, sentenced to that long term by an African American judge. And so, there is this complication. Is this just about race or is it, or are there other things at work? Sometimes the answer to that is institutional issues or the way the laws themselves work. But, your book opens us up to a set of additional possibilities. It doesn’t blank those out. But it offers some other explanations for that. And so tell us what they are.
03:29 Benforado: I’m really interested in the hidden forces that shape the behavior of detectives, judges, jurors and witnesses and others in our criminal justice system. And so in each chapter I look at a different one of these characters and I contrast the conventional stories that we tell about how these people make decisions, where things can go wrong with what the latest evidence from psychology and neuroscience has to say.
FACTOID: The Question: Is “racism” really the problem in criminal justice?
I think, you know you asked the question is this all about race, and the answer is no. This is not just about race there is a whole bunch of other stuff going on. And the stories that we tell about how race comes in and causes problems in the criminal justice system are limited, are not the total story. So I think the conventional stories that we tell about racial injustice is that our police forces are still filled with bigots, right, uh, the big problem here is racial animus amongst judges and jurors and witnesses and I don't think that is the case. So in writing this book I did ride along with police officers, I met with lawyers and I looked at the science about discrimination and what that science says is that racial animus is probably not the big problem that we face. Rather the problem is endemic stereotypes, damaging stereotypes that we’ve al been exposed to by watching television by reading books over a period of decades which link concepts like violence or crime with blackness and so these implicit forces then shape real world behavior things that have very serious consequences for minorities, say interactions with a police officers now what the research suggests is that these implicit stereotypes, these attitudes that are racialized can impact things like how quickly someone goes to their gun.
FACTOID: African Ameicans three times more likely to be killed by police
Whether someone sees an ambiguous object in someone’s hand as a cell phone or as a weapon and so I think that’s probably why we’re seeing the disparate impact that we do across the legal system. Are there still some explicitly bigoted people in our police departments? Yes, but if we got rid of everyone one of those people we would still have racially disparate impacts and we need to face up to is the true causes of that injustice.
Blackmon: Are these sorts of incidents happening at a greater frequency or is it just that we now can see them more plainly?
Benforado: I actually think that they’re probably happening less than they have in the past. Um, I think that what’s different is that we’re finally starting to pay attention. Part of that has to do with emerging technologies. Everyone has a cell phone now and whenever they see a problem they tend to do it. And video tapes which once were turned over to a prosecutor and disappeared now are uploaded and go on twitter and go viral. And I think that’s what has changed. And I think we’ve always had deep unfairness. We’ve always had wrongful convictions. We just didn’t know about it. The other reason we now know more is that science is showing us that these things happen across our criminal justice system.
Blackmon: What is actually a pretty controversial thing to say—that race isn’t the main thing. What is the difference exactly in your mind between that there are these stereotypes that associate with crime and such that make their way around to a higher likelihood of a presumption of guilt on the part of a black person. What’s the difference between that and racism?
Benforado: So I think it’s easier to think about this in a sort of real world context. When there is a shooting of a young African American male I think we get two stories. If you’re watching a conservative show you’re told well these are inevitable mistakes it has nothing to do with race right, there are thousands of police officers out there. When this happens it’s a tragedy, yes, but it’s just inevitable in a country as big as the United States. On the left you hear the story well this must be about racial hatred. Right this must be that this officer disregards black people, doesn't think that black people are worth anything, maybe hates black people. And I think that the story from psychology suggests that actually all of us were overwhelmed by information at any given point and so we rely on automatic knowledge structures, which just make it possible to be a human being. To interact with the world and so these short cuts can often lead to good outcomes. They can help us, right? I can look at you I can say okay, he’s kind of smiling going to give me a nice softball question next. Maybe. Those types of cues can be very helpful in planning, in seeing what is to come in our future. But they can also lead us astray. And so certain things over time they get connected. One of the things that gets connected is blackness and violence, blackness and crime. Anyone watching the program familiar with all of the television programs that make that link very very strong. I have a young daughter she is already being exposed to this stereotypical association. And so when it comes to something like deciding whether someone is holding a gun or not we have got to make a split second decision and what do we rely on? Well we rely on these automatic connections. Now that is definitely racial behavior, right? To say this is doesn’t have anything to do with race uh is mistaken. It has everything to do with race. The fact that African Americans receive higher bails. The fact that African Americans are more likely to be treated brutally by the police, that has everything to do with race. It’s just the pathway that we get there. It’s not that judges are KKK members looking to hurt black people. It’s not that jurors are looking to convict black people, when they would let a white person off. Most of this stuff is happening beyond peoples awareness or control and that’s what makes it so dangerous is that people end up doing this stuff and thinking that their absolutely egalitarian, that they would treat a black person exactly the same.
Blackmon: And so you’re talking about this, you could be called in to sit on a jury uh and you could be someone uh that considers himself very racially egalitarian, you’ve got a diverse set of friends, but you called into sit in on a jury during the voir dire process and you're asked about racial attitudes and such and you very honestly say no, I have no biases at all. I am totally open minded here, but even the person that very genuinely believes that is still highly vulnerable to a subconscious response to a defendant that looks a particular way.
Benforado: And these implicit biases don’t just cover race right? They relate to age, they relate to gender they relate to how you feel about gay people.
Blackmon: Because the same things apply to witnesses, right?
Benforado: Absolutely, and so I think that uh when when we’re looking for solutions if we just go looking for people who have evil in their heart we’re never going to get actually to the heart of the problem.
10:42 Blackmon: And we have this broad problem or issue in American life far beyond the criminal justice system, this paradox that on the one hand over the past 50 years we have in fact defeated individual racism in an astonishing way. Yet at the same time we’ve created an environment and a society as good as it is on those fronts we still have some sort of a giant issue that we can’t, which lead to Ferguson’s and these other things.
FACTOID: 59% of Americans say country needs to do more for racial equality
Benforado: One of the interesting things if you look at the research on implicit bias is that that bias can actually be directed at people of your own race right?
FACTOID: Pew: three-fourths of African Americans consider racism a major problem
So an African American person exposed to these damaging stereotypes may devalue black peoples lives just like a white person will and that can help explain I think why we have black officers shooting at black suspects which wouldn't happen necessarily if that was a white suspect.
Blackmon: You open the book with just a heart wrenching story uh that unfolds in Washington, D.C. So tell us very very briefly the gist of that account and how it turned out.
Benforado: So this was a wealthy neighborhood in Northwest D.C., and it was a winter night. Guy steps out he was going to get something from the car and he sees a body lying on the sidewalk. Walks up, the man’s actually alive but he is unable to speak, kinda groaning, so the guys says to his wife call 911. A few minutes later an ambu- actually it was a fire truck first, pulls around, guys start to get out and almost immediately the man on the ground starts to vomit and one of the fire fighters say “ah I smell alcohol on his breath.” This is just an ETOH short hand for a drunk and so when the police officers arrive a few minutes later they kind of keep to the periphery, after all it’s just a drunk nothing really to see. When the ambulance arrives a little time later when the crew leader comes out she says “what, we came out all this way just for a drunk?” They kind of throw him in the back they don’t go through the standard protocols. In fact, their required to take him to the closest hospital instead they go to the one that’s a little bit closer to the crew leaders house. She needs to run some errands. When they take him to the hospital he’s put in the hallway because he is just a drunk it is a busy night.
Blackmon: He’s just got to sleep it off.
Benforado: Yeah, just sleep it off. And that’s how everything goes until one of the nurses walks by and she notices that the man is breathing in a very strange way this kind of growling snore. So she gets him a sternum rub and his arms and legs flip inwards. Now, that’s not a sign of drunkenness, that’s a sign of a head injury and the doctor sees this across the way. He rushes over they push the man into the resuscitation room they call the trauma team but ultimately its too late. He dies of bleeding in his brain. Now, it turns out this was no drunk. This was David Rosenbaum, a New York Times award winning reporter, a luminary of Washington, 700 people came to this man’s funeral. What had happened? Well, he had had dinner with his wife, got the hiccups and decided to head out for a brisk air cure. Two guys jumped him. Hit him in the back of the head with a metal bar.
Benforado: Knocked him unconscious and I think what this shows is just how quickly we are to sum people up based on what’s directly in front of us—it might be the color of their skin. It might be the fact that they’re attractive or unattractive. It might be that they look rich or poor. It might be if the way their breath smells.
Benforado: And one of the things that’s really just damaging, is not just how influential these labels are, but rather how difficult they are to pull off after they’ve been stuck down on someone’s uh lapels. So we can see in David Rosenbaum’s case, how everything in the case was subsequently filtered through this lens of drunkenness. Right? When something didn’t fit, say the fact that his back pocket had been ripped out, well that was kind of put to the side. The fact that he had pin point pupils and an elevated pulse. That didn’t fit either, but it was kind of down played. No one followed up on that. Um, and this problem of confirmation bias, tunnel vision, is a problem not just for emergency responders, it’s also a big issue for judges and jurors and lawyers. In fact, it’s a problem for some of the most seemingly objective aspects of the criminal justice system. Forensic examiners—so you think, you know, matching up a finger print, would be cut and dry. You just look at the war pattern, the computer does it—it’s on or off. Um, but that’s not actually true in experiments. When the person is doing the assessment, he knows that this particular sample comes from someone who has already confessed, or from someone who a witness already picked out from an identification procedure, they’re far more likely to find that to be a correct match.
FACTOID: Experts say only 5% - 10% of criminal cases eligible for DNA testing
And that’s really scary. A lot of the stuff that we’ve been relying on for a long time when it comes to forensic analysis is much shakier than the public believes it to be.
16:01 Blackmon: Again, it’s not necessarily the suggestion that the fingerprint analysts and the folks back at the crime lab are doctoring their reports at the direction of the prosecutor or detectives involved, it’s that they presume that the detectives have probably gotten the right person and the evidence in front of them, if there’s any scenario by which, it seems to align with the guilt of this person, then that’s the scenario they wind up with because they, this trusted party has already told them what this outcome is going to be and so they then find the closest thing that matches that outcome.
FACTOID: Studies show at least 1 in 25 on death row later found innocent
Benforado: I think most of the people who make these errors are good people with the best of intentions. And they’re human. We tend to sum things up very quickly and then instead of looking at it objectively, we selectively look through the evidence, looking for stuff that confirms what we already believe to be true.
Blackmon: From the very beginnings of human evolution, we’ve made a bargain with certain people in society. We’ve always needed the big guys to be on the perimeter. And to help protect the rest of us from whoever the bad guys are. And through all time and certainly in present times, we’ve had this working bargain, that the guys on the perimeter are going to have to do these messy things sometimes—but we can rely on them to make defensible choices in the end. And part of our shock, in society right now, is discovering that, how often those have been the wrong choices or how indefensible some of them even are.
Benforado: Yeah, so I think that we, you know, I teach law. And I think my students come in, and certainly I came in as a law student, thinking that our house of law was built on granite, right? That it was so, so solid. And as I began as a law student, as I went out and worked for a judge, a lawyer, and then became an academic and actually started doing actually experimental collaborations with psychologists, suddenly I realized that so much of what we based our legal system on is sand. It’s unsupported myths about human behavior. About what deceit looks like and how people and what drives people to commit crimes and how best to deter would be offenders.
Blackmon: And it’s worth pointing out that many of those instinctive responses that we have, those implicit biases, are often times useful and correct! As you said, you know, our gut over whether someone is telling the truth or not may be relatively accurate. It may be that 80 percent we are right. But, when we move into the arena, of the fate of someone’s life, the rest of their lifetimes, that 20 percent margin of error, if that’s what we’re relying on, then that’s a scary thing
Benforado: Yeah, and some of the things we are absolutely certain about, right? If you confess to a rape or a murder, you must have done it. And that’s how we treat it in our legal system. We think it’s scarcely conceivable that someone would simply falsely confess to a serious crime. But what we now know is that It’s not only possible, I think it’s the predictable consequence of using the most widely employed interrogation technique in the United States, you know, the read approach. And why is that? Well, the Reed approach is basically broken into these two phases: the first approach brought in to interrogation and the first goal of the police officer is just to tell whether you’re telling the truth or not and what do the police officers focus on? Well, the same things that we all focus on. Things like gaze aversion—are you looking me in the eye or are you looking down at our shoe or up at the ceiling? Are your hands shaking? Are your legs bouncing up and down? Once the police officer picks up on these things and says yes, this person is that. Well, they move to the second part of the process, which is all about getting the confession. Now what’s the problem with the first part of the process? Well, the things that police officers rely on, are not diagnosed, good ways to diagnose whether or not someone is being deceitful or not. There are plenty of people who are completely guilty who will look you right in the eye and tell you, “nope, I didn’t do it” and there are plenty of people, myself included, who get very nervous just going through airport security, my hands start to shake! So, that’s a really bad way to tell whether someone is lying or not and the problem is, what happens is, we then move to the second part of the interrogation. And that’s all about getting to you to say “I did it.” My wife, she just really gets on my nerves, and I can’t tell you how many times I have just thought about, you know going after her, and I’ve been there man, what happens with this technique is that we know that people find this highly, highly coercive. It’s very, very unpleasant, particularly if you’ve been in interrogation for a number of hours and people in this situation tend to think, well I know I am innocent. We have this illusion that what’s inside of us is very transparent, I know I’m innocent and if I just say that I did it, I can relieve this acute distress and you know, soon enough, the detectives, they’ll follow up on other suspects, they’ll find evidence and I’ll get off and if I say I did it, well at least I can get out of this room. This terrible feeling.
FACTOID: 25% of prisoners exonerated by DNA first gave false confession
21:18 Blackmon: And the irony of exactly what you just described is that implicitly, the subject of this interrogation is in fact acting on their own implicit bias that the system will work. And so I can get out of this terrible nightmare of a day because tomorrow it will all be sorted out, right? But it’s not.
Benforado: And a belief that, cops for instance, this is a law after all, will be telling me the truth. They won’t try for evidence they don’t have and what we know from many many cases is that cops routinely lie. They’re allowed to lie about stuff. And when you’re being told that they have evidence, they have your finger print and stuff, people may admit that they did it, and subsequently, expect that everything could work out in the end. And the problem is, once you confess, people stop looking for anyone else. Indeed, that shaky witness identification of you suddenly seems a lot more firm. So I talk about a man, you know, Juan Rivera, who ends up being accused of raping and murdering an 11-year old girl. And, you know, if we look at his interrogation, again this was someone who was young, who had a low IQ, suffering from mental health problems, uhm, if we look at the amount of time he spent, right? Locked in this room, he too, initially denied it, and over time, gave up more and more and more. The actual interrogators became so exhausted, right? They had to go back and bring in other interrogators, just to keep going. They brought the initial transcript right? Of this guy’s confession to the prosecutor. The prosecutor looked at it and said “None of this stuff matches up, these are all wrong facts, you need to go back, talk to him some more.” And the problem is, that often times, people doing these interrogations, they’re not trying to set someone up. I really don’t think that that’s true. I think, they’re just trying to clarify some matters. They think someone forgot, or they’re being evasive. And so they say “Oh yeah, didn’t you mean that she was wearing a nightgown and not jeans?” Right? And the person says, “Uh, yeah. She was wearing a night gown.” Just wanting to give the person what they said. And they change that little detail, and then that is held up later, right? As a sign that this is a valid confession. “Look! He said a nightgown! And there was a nightgown at the scene! Only the killer could have known that detail. But where did it come from?” It came from the cop.
Blackmon: We have a project here at the Miller Center where we ask people about these really seminal issues, if you were talking to the next president, whoever he or she may be in January of 2017, and you had to narrow it down to here’s the one thing you really need to do, Mr. or Mrs. President,what would that advice be, to the next president?
FACTOID: Visit firstyear2017.org for more advice for next U.S. president.
Benforado: That’s a great question. The answer that I would give, is that we need to embrace evidence-based justice. We have evidence-based medicine. For a very long time, doctors, you would come in to see your doctor, and they’d look at you, and they’d make a judgement based on their experience but also their gut, anecdotes that they had heard, and after a point doctors start to think well, we’re scientists, this is a really bad way to determine whether medicines work, interventions are effective. We should collect data, we should run studies and see what actually is effective and what’s ineffective. And so I would say the starting point is to think about well, what are best practices and to have the courage to change things. To actually think about well, you know, this may be the best system the world has ever seen, but it’s not the system that we as Americans are promised. And we must always strive forward.
Blackmon: Well thank you, you’ve written a really important book and a really important set of observations that have gotta become part of this conversation so thank you for being here.
Benforado: Thank you.
Blackmon: Adam Benforado, the book is Unfair: The New Science of Criminal Injustice. We hope you’ll join the conversation with American Forum at the Miller Center Facebook page, or follow us on Twitter @DouglasBlackmon or @AmericanForumTV. To send us a comment about this program or download podcasts or transcripts, visit us at millercenter.org/americanforum. I’m Doug Blackmon, see you next week.