American Injustice: Part 1 of 10

Based on the book Unfair: The New Science of Criminal Injustice by Adam Benforado.
For more detailed information, read the book.

A Flawed System

Most people do not think about the horrible history on which our justice system is based. Centuries ago, a major crime was heresy – disagreeing with the dogma of the Catholic church. Guilt was determined by throwing a person into a pool of “holy” water. If the person floated, he or she was guilty. If the person sank, he or she was innocent, but probably drowned. Other trial methods included having the accused hold a hot iron or pull a ring out of boiling water. If the person was burned, he/she was guilty. Almost everyone at the time had complete faith in these methods of determining guilt because the methods were believed to be determined by the true and incorruptible judgement of god. Since god was judging the person, humans had no responsibility for the outcome.

Most people today recognize the irrationality and unfairness of calling differences of religious opinion a crime and the ridiculousness of using a trial by ordeal to assess guilt. Science has proven that buoyancy and burns are determined by principles of physics and not by criminal or religious guilt. Most people think our current methods of determining guilt are accurate and just. Very few people understand the significant flaws in our current judicial system. It’s not that the system sometimes breaks down, it’s that even when it works as designed, it results in wrongful convictions, biased judgements, unequal and unfair sentences, and unintended outcomes. We humans do not recognize how inaccurately we estimate risk and danger, how unreliable witnesses can be, the ineffectiveness of judicial consequences, or the true causes of human behavior

Our judicial system needs a thorough overhaul. We have scientific evidence to improve criminal legislation, investigation techniques, trial procedures, sentencing, incarceration, and even our core beliefs about the benefits of an adversarial legal system. Much of what we do in the name of justice makes no more sense than prosecuting heresy or using superstitious methods to determine guilt.

For most people today, one of the most powerful pieces of evidence is a confession. People believe that forced confessions are a thing of the past, something that went out with torture or “third degree” interrogations from the 1930s. Yet, false confessions are the leading cause of wrongful homicide convictions. In fact, false confessions were involved in 60% of murder convictions exonerated by DNA evidence. One of the most famous cases was the Central Park jogger case in which five teenagers confessed to raping a woman. They were later exonerated by DNA evidence. How can this happen?

Research shows that the interrogation technique considered the gold standard, the Reid Technique, encourages false confessions. Once investigators become reasonably certain of a person’s guilt, they are taught to use aggressive attempts to elicit a confession. Innocent people are more likely to waive their rights to remain silent and have a lawyer present because they assume their innocence will be obvious. But when they are isolated for hours and refused any attempt to deny their guilt or explain their actions, they too often eventually break down. Many people say later that they falsely confessed simply to escape the abusive interrogation. The promised immediate relief of a confession became much more powerful than the long-range consequences of admitting something they did not do. The fact that interrogators are allowed to lie to a person by minimizing the seriousness of the crime, maximizing the benefits of a confession and falsifying what evidence they have adds significantly to the psychological manipulation. While violence and threats have been forbidden in interrogations, psychological coercion is used routinely. It is especially powerful against those most vulnerable to coercion – the young and those with mental illness or disability.

Other factors that show up frequently in false confessions are inadvertent or deliberate details that are fed to the person by investigators or are available in public information, and are then used to “prove” the confession valid. People have great difficulty changing a belief once formed. Police are no different. Research has shown that those who start with a belief of guilt are 20 percent more likely to confirm guilt than those who start from a position of innocence. Confirmation bias pushes investigators to ignore contradictory evidence – even DNA, misinterpret ambiguous evidence, and to stop investigating.

The justice professionals who get it wrong are not incompetent or evil. They simply do not see their own fallibility. And ninety to ninety-five percent of those charged with a crime never go to trial. They admit to a crime for a lesser sentence rather than chance a trial with all its flaws. We need to seriously consider revising the plea bargain system and correct the judicial system flaws that make it so appealing.

Subsequent parts of this essay will describe many other specific problems and solutions.

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