By Chet Yarbrough
Written by: Adam Benforado
Narration by: Joe Bearrett
Adam Benforado finds America’s justice system rife with law and disorder. It is a subject of hot debate in American politics. From the subject of the death penalty, to treatment of minorities, to the injustice of incarceration, Benforado systematically criticizes American justice. What makes Benforado’s book interesting are his corrective solutions.
Though the majority of Americans still support the death penalty, support is as low as it’s been in 40 years. Death row executions peaked in 1999 and have fallen ever since. There is growing doubt that a death penalty deters serious crime. Benforado argues that fear of death is no deterrent for reasons ranging from environmental to psychological human circumstance. Human beings do not rationally consider the consequence of committing violent crimes.
A 2010 PEW research report shows that black men are six times as likely as white men to be jailed. Benforado argues that inherent human bias is a principal cause of disproportionate arrest and conviction of minorities. Police departments are trained and organized to close criminal cases in ways that deny equal justice. From the way crime scenes are investigated to the way witnesses are interrogated, Benforado explains how bias distorts the arrest and conviction process.
Benforado recounts the story of a newspaper reporter that is lying at the side of a road bleeding, unable to speak or explain why he is disoriented. The police arrive and presume the person is drunk because of slurred speech and inability to stand. The police call dispatch to explain the circumstances of the incident.
The victim is taken to a hospital. Based on the police incident report, the victim is set aside in a room to sober up. A doctor finally examines the man and finds he has difficulty breathing and shows signs of concussion. The man dies.
Police re-investigate the scene and find a bloody pipe and realize the person was mugged. He suffered a concussion, and dies as a result of misdiagnosis that began at the crime scene. Benforado infers proper training of the police in emergency medical treatment and careful crime scene investigation could have saved this person’s life. Benforado may have a point but what level of police training can eliminate human error? We ask much of the police but it seems unreasonable to expect them to be trained as psychologists and physicians; as well as public servants and protectors.
Two things come to mind that make Benforado’s inference irritating. If you are a police officer, your primary job is to serve and protect; not provide emergency medical treatment. The second thing, policemen and women are faced everyday with people who are homeless, psychologically unbalanced, or injured from accidents. Evidence of poor police work is an unfair assessment of this tragic incident.
It may be true that more careful crime scene investigation may have saved this person’s life but, in the pressure cooker life of urban police work, mistakes will be made. This is not an excuse but it is the nature of being human. However, Benforado’s point is noteworthy because police department personnel should be trained to include EMT. They are often first at the scene. Further, America’s treatment of the homeless and psychologically impaired should be improved but Police Departments are not funded or educationally qualified to provide that training or service.
Benforado’s analysis of police interrogation techniques is an eye-opening and discouraging piece of “…Criminal Injustice”. Benforado recounts a number of instances where interrogation of witnesses and alleged criminals lead to false witness identifications and bogus criminal confessions. Human cognition is hugely influenced by connecting dots in a maze of information that has nothing to do with the truth of a criminal or homicidal event. Human brains are not movie projectors that record images of the past. Humans often remember what people lead them to think. They may like the person that is asking questions. They have deep respect, and in some cases, disrespect for officers in uniform. They receive subtle clues from interrogators about who they think is guilty. They want their perception of what happened to have continuity because minds search for coherent meaning. Witnesses are not lying but they are mis-remembering or manufacturing a cohesive story from disparate or minimally related facts. Or, their respect or hate for police distorts their perspective.
Police interrogation and plea bargaining of witnesses and the accused increase the likelihood of injustice. Once the accused is arrested and Miranda Rights are spoken, police routinely lie and mislead the accused to increase the probability of a plea bargain. Closing cases, more than justice, is the Police Department’s objective because that is what a department’s efficiency and effectiveness are measured against. Benforado recounts cases of people admitting guilt who are later found innocent by missed evidence or by evidence of others who are proven guilty for the crime. As a result of long police interrogations, an accused’s sleep deprivation, and police lies about collected evidence (like DNA alleged to have been found), the accused will falsely admit guilt. Police cajoling, and the carrot of a plea bargain to reduce sentences, seduces the accused to confess to crimes they did not commit.
There is a range of .027 percent (estimated by U.S. Supreme Court Justice Antonin Scalia) to 4.1 percent by Samuel Gross (a law professor at the University of Michigan), estimating false convictions per year. Whether .027 or 4.1 percent, innocent citizens are being sentenced for crimes they did not commit. Benforado notes that over ninety percent of criminal convictions are plea bargained rather than tried in court. Undoubtedly, plea bargaining increases the number of innocent people incarcerated. A Ohio State University study believes 10,000 innocent people are convicted every year.
Benforado addresses the high error rate of eye-witnesses. Eye-witness’s influence in identifying criminals from mug books and line-ups are routinely used in police investigations. Human remembrance of detail is highly subjective and often inadvertently misleading. The same event viewed by different people has been shown by many studies to have been understood in completely different and inaccurate ways.
Adding to the injustice of jailing or executing innocent citizens, America’s incarceration system is broken. It is not designed to rehabilitate. It is designed to punish and deprive human beings of freedom. It is a system of revenge; not rehabilitation. The result is disproportionately high population imprisonment with high recidivism. The recidivism is high because treatments in prison make dependents of people who only learn how to live in a closed totalitarian environment. The use of solitary confinement and implementation of rigid rules of behavior create asocial and antisocial personality disorders.
Another factor in the gross injustice of American jurisprudence is the bail bond system. Going back to the publication of Alex de Tocqueville’s “Democracy in American” (printed in the 19th century) there is an acknowledged unfairness of bail bonds for low-income citizens; i.e. if one is a rich criminal, he/she pays a bond and is out on the street; if one is poor, he/she sits in jail until trial. And of course, the rich criminal hires an attorney for representation in trial; the poor, at best, plea bargains.
Finally Benforado notes the advance of technology in forensic examination of evidence. Benforado believes this is the area of American criminal justice that offers the most promise for a revolution. Some of Benforado’s suggestions are already in use. Cameras that monitor police and citizen behavior offer more accurate information about behavior than eye-witness accounts.
Benforado’s revolutionary ideas involve retraining America’s police force, capitalizing on today’s technological capability, and revising America’s prison system. Police need to be re-trained. No more sleep deprived witness interrogations. More emphasis on saving lives of victims as well as perpetrators; careful self-monitoring of personal biases when investigating crime scenes; relying less on witness identification and more on forensic evidence.
Americans are already living in a “Brave New World”. Big Brother is watching. There is the reprehensible consequence of invaded privacy but the truth of criminality is less hidden and more accurately analyzed. Police brutality is less likely to occur. The evolution of lie detection is entering an EEG (electroencephalogram) phase where brain activity is measured as questions are asked. DNA sampling is becoming a more accurate way of determining presence at a crime.
Benforado suggests use of Virtual Reality for trials. Juries would be impaneled without meeting participants in the trial. VR mitigates perpetuation of bias caused by looks or behaviors of the accused or witnesses to the crime. Avatars would replace participants in the trial. Studies show that better looking men and women are more likely to be believed than those who do not meet the expectations of a jury.
Benforado also suggests Virtual Reality would allow for time delay when questions are raised by the prosecution or defense; i.e. objections raised and considered by the judge could be legally adjudicated before the jury hears unacceptably biased testimony. The effect would be to eliminate unfair injection of disallowed testimony in trial.
Benforado argues that prisons should be reconfigured to become more like hospitals or schools to treat and rehabilitate criminals rather than punish them. He notes that countries that have lower prison populations use incarceration as a way of rehabilitating rather than punishing criminals. The results have been to reduce the number of people jailed. Benforado implies that when restricted freedom is necessary, social, medical, and/or psychological treatment and re-education would reduce recidivism.
Benforado’s ideas are revolutionary in that they overturn the direction of American law and order set in the 17th century. These ideas may be more expensive than having the highest incarnation rate in the world (716 people per 100,000). Then again, maybe not, considering it cost us $74 billion in 2007. At the very least, his ideas would make America a more just society.