Unfair

1. Our criminal justice system is built on flawed assumptions about human behavior

We feel confident that we know our judicial system. We know why people commit crimes, how to identify the guilty, and what makes a good judge. And we know where we still have work to do.

Mistaken beliefs. Our justice system operates on several key assumptions that science has shown to be false:

• That people are rational actors who carefully weigh the costs and benefits of their actions
• That we can accurately detect lies and determine guilt based on a person's demeanor
• That harsh punishments deter crime
• That confessions and eyewitness accounts are reliable evidence

Hidden influences. In reality, human behavior and decision-making are shaped by:

• Unconscious biases and mental shortcuts
• Environmental and situational factors
• Brain structure and development
• Mental illness and cognitive impairments

These factors are often invisible to us but have an enormous impact on criminal behavior and how we respond to it. Our failure to account for them leads to unfair and ineffective outcomes.

2. Eyewitness testimony and confessions are often unreliable

To achieve the proper result, all-seeing God, who controlled the natural elements, would direct those elements to behave in an unusual manner: hot iron would fail to burn the innocent hand; cold water would prevent the guilty from sinking.

Memory is malleable. Despite our intuitions, human memory does not work like a video camera:

• Memories can be distorted by suggestion, leading questions, and the passage of time
• People can develop false memories of events that never occurred
• Stress and trauma can impair memory formation and recall

False confessions. Innocent people sometimes confess to crimes they didn't commit due to:

• Coercive interrogation techniques
• Mental illness or cognitive impairment
• Fear and exhaustion
• Belief that they can later prove their innocence

These problems are compounded by the fact that juries tend to view confessions and eyewitness testimony as highly reliable forms of evidence. This can lead to wrongful convictions even when other evidence points to innocence.

3. Hidden biases influence every stage of the legal process

We are masters at jumping to conclusions based on an extremely limited amount of evidence. The automatic processes in our brain (commonly referred to as System 1) quickly take in the scene and then reach a conclusion about the victim based on what is right in front of us, without considering what we might be missing.

Pervasive influence. Unconscious biases affect:

• Police decisions about who to stop, search, and arrest
• Prosecutor choices about charges and plea bargains
• Jury selection and deliberations
• Judicial rulings and sentencing

Types of bias. Common biases in the justice system include:

• Racial and ethnic bias
• Gender bias
• Class bias
• Confirmation bias (seeking information that confirms existing beliefs)
• Anchoring (being influenced by initial information)

These biases operate below the level of conscious awareness, making them difficult to detect and counteract. Even well-intentioned professionals who believe they are being objective can be swayed by them.

4. Brain structure and development play a crucial role in criminal behavior

Our thoughts, beliefs, and actions are simply the product of roughly 100 billion neurons, each with its associated synapses, sending out and receiving neurotransmitters. If some of these electrochemical reactions don't occur in the normal way, because of, say, a tumor or a traumatic brain injury, a person may lack empathy, or hear voices, or have trouble remembering things.

Biological factors. Criminal behavior is influenced by:

• Genetic predispositions
• Brain structure abnormalities
• Neurotransmitter imbalances
• Traumatic brain injuries

Developmental issues. The brain continues developing into the mid-20s, affecting:

• Impulse control
• Risk assessment
• Emotional regulation
• Decision-making

These biological realities challenge our notions of free will and moral culpability. They suggest that many criminals may have diminished capacity to control their actions or understand their consequences.

5. Our punitive approach to justice often backfires

We are swimming in a sea of dishonesty. At this very moment there are people right in front of us—strangers and those we know; our idols, our enemies, and our friends—behaving badly: employees lying on their time sheets or padding their expense accounts; athletes feigning fouls to win penalties or taking performance-enhancing drugs to gain an edge; cheating spouses and partners; men and women engaging in insurance fraud and tax fraud and defrauding their elderly relatives; millions of Americans downloading billions of songs and videos that they did not pay for.

Counterproductive punishment. Harsh sentences and inhumane prison conditions often:

• Fail to deter crime
• Make rehabilitation more difficult
• Increase recidivism rates
• Destroy families and communities

Alternative approaches. More effective strategies include:

• Addressing root causes of crime (poverty, mental illness, addiction)
• Focusing on rehabilitation and reintegration
• Using restorative justice practices
• Implementing evidence-based interventions

Our retributive instinct for punishment often overrides more rational, effective approaches to reducing crime and helping offenders become productive members of society.

6. The adversarial legal system can undermine the search for truth

We expend so much energy battling, reforming, and strictly enforcing our procedural protections that we lose sight of the fact that they are merely a means to an end. A judge will let you off of your shoplifting charge if the police stepped into your home and seized evidence without a warrant, but a court will rarely intervene in the obviously unjust situation of a man being sent to prison for the rest of his life for stealing a few DVDs.

Winning vs. truth-seeking. The adversarial system incentivizes:

• Concealing unfavorable evidence
• Attacking witness credibility regardless of truthfulness
• Using procedural tactics to exclude relevant information

Unintended consequences. Adversarial procedures can lead to:

• Wrongful convictions of the innocent
• Acquittals of the guilty on technicalities
• Focus on "winning" rather than justice

While designed to protect rights, the adversarial system can actually obscure the truth and produce unjust outcomes. Alternative models that prioritize collaborative fact-finding may be more effective.

7. Technology and science offer new tools to improve the justice system

Growing experimental evidence suggests that knowing that we are being watched can help us behave in the right way. Indeed, contrary to the Supreme Court majority's belief that Connick's supervisory shortcomings were not to blame for Thompson's wrongful conviction, there is good reason to think that effective oversight in the D.A.'s office might have prevented the injustice Thompson suffered.

Scientific advances. New technologies and research methods include:

• Brain imaging to understand criminal behavior
• DNA analysis for more accurate identification
• Body cameras to monitor police conduct
• Data analysis to detect patterns of bias

Evidence-based practices. Science can inform:

• More effective rehabilitation programs
• Improved interrogation techniques
• Better methods for evaluating evidence
• Strategies for reducing cognitive biases

While technology alone cannot solve all problems in the justice system, it offers powerful new tools for enhancing accuracy, fairness, and accountability when properly applied.

8. Empathy and rehabilitation should be central to criminal justice reform

The reason is simple: Germany and the Netherlands, like Norway, have organized their penal system around resocialization and rehabilitation. It's right there in their laws. Germany's Prison Act, for example, makes rehabilitating the inmate the sole aim of incarceration; protecting the public is simply a natural outgrowth of ensuring the inmate's successful transition back into society upon release.

Humanizing offenders. Recognizing the humanity of criminals:

• Reduces dehumanization and harsh treatment
• Encourages addressing root causes of crime
• Promotes more effective rehabilitation

Rehabilitation focus. Prioritizing rehabilitation over punishment:

• Reduces recidivism rates
• Helps offenders become productive citizens
• Is more cost-effective long-term
• Aligns with scientific understanding of behavior

Countries that have adopted more humane, rehabilitation-focused approaches have seen better outcomes in terms of reduced crime and successful reintegration of offenders. Shifting from a punitive to a rehabilitative model requires overcoming deep-seated instincts for retribution, but offers a more effective and ethical approach to justice.

Last updated: July 25, 2024