Unfair

by Adam Benforado

  We are so obsessed with the idea that the experience inside prison must not be like the experience outside that we overlook how much harder that makes it for inmates to rejoin society once they are released. Depriving people of normal human contact does not eliminate criminal behavior; it eliminates the capacity to engage in normal human contact. Losing the stimulation of work, entertainment, or socialization does not prompt people to make better choices in the future; it leaves them unprepared to get a job or interact with the outside world when they are released.

  One of the strangest side effects of our ineffective and unfair incarceration system is that it may also make people less likely to follow the law in the first place. To many policymakers, severe mandatory sentences seem to offer a powerful incentive to follow the rules. But the extreme harshness of our punishments may actually increase the likelihood of malfeasance because they suggest that the law is not worthy of respect. If a couple of garage break-ins over the summer and a stolen car can land a nineteen-year-old in prison for life, then it is hard to trust the system, believe in its rules, and rely on its processes and officers. Research has shown that citizens are more willing to defer to the decisions of legal authorities and more willing to follow the law when they see those authorities and legal rules as legitimate. In one study, a group of participants read about a proposed law that seemed unjust because it raised civil liberties concerns or hurt certain citizens, while another cohort read about a seemingly just law. Those who had read about an unjust provision were more likely to report that they planned to disregard other completely unrelated criminal laws in their day-to-day lives.

  The same dynamics play out in the real world. One of the reasons that Hawaii’s HOPE program has been so successful is that it has bucked the trend and made procedural justice a key component of its deterrence approach. From the outset, Hawaiian offenders understand that judges and probation officers want them to succeed. And although the punishments are consistently enforced, they are not overly harsh (a failed drug test often means simply a few days in jail), so defendants view the penalties as fair and legitimate. This perception, in turn, seems to encourage program participants to show greater respect for the law.

  Yet the HOPE initiative is the rare exception, and while the program has done an admirable job of crafting an approach that more effectively deters, there is serious reason to question whether deterrence should remain a major focus of our correctional system. Ultimately, it is not enough to ask whether our current approach to punishment deters some set of criminals (or whether it could be properly reformed to deter more); we must also ask whether any benefits that accrue are worth the costs.

  A trip to the pokey doesn’t come cheap; nor does an execution. The total bill for our correctional system is some $60 billion each year. A year in a New Jersey prison costs more than a year at Princeton University. The trends are equally disheartening: state spending on prisons has outpaced spending on higher education in the last twenty years, increasing at six times the rate. And the cost of building and managing a supermax facility is generally two or three times the cost for other kinds of prisons. The irony is that spending money on education—in particular to keep male high school students from dropping out—appears to be a far more effective way to combat crime. Time in the classroom reduces the opportunity to get into trouble, helps instill positive values, and provides skills that lead to better jobs, diminishing the need to offend and increasing the perceived cost of being caught and imprisoned.

  None of this, of course, takes into account the broader costs of our current punishment regime. As the Commission on Safety and Abuse in America’s Prisons explained, “Many of those who are incarcerated come from and return to poor African-American and Latino neighborhoods, and the stability of those communities has an effect on the health and safety of whole cities and states.”

  In the end, the biggest cost may come to the values we say we hold dear. We say we want a system that is humane, but we deliver unimaginable suffering. We say we want to punish only those who deserve it and to punish in proportion to their wrongdoing, but we end up punishing randomly or, worse still, delivering the harshest experiences to those who least deserve it. We say we want to protect ourselves and reform prisoners, but instead we teach them brutality and leave ourselves less safe.

  If we were somehow able to remove our cognitive blinders, we would never design our system of punishment as it currently stands. We would forget Eastern State. We would start again.

  —

  Halden is one of Norway’s highest-security prisons. It houses murderers and rapists. But there are no bars on the windows. You cannot see the huge wall that surrounds the prison—just trees.

  It was not built to intimidate or deter or separate. It was built to rehabilitate.

  The facility has a sleek, minimalist aesthetic. Each prisoner is given a room with a flat-screen television, a toilet (behind a door), a shower, a fridge, and a desk. Linked to every ten or twelve rooms is a common living space.

  Prisoners are locked in their cells only during the evening, with the day open for educational, vocational, and leisure activities. The prison has several workshops and sports facilities, as well as a library, a chapel, and a school. The inmates often save up their money to buy ingredients—including wasabi and garam masala—for communal cooking. There are tablecloths on the tables.

  The prison staff aren’t cast as unyielding enforcers, as in the United States; their role is to help inmates overcome their criminality and change their lives. And effort goes into fostering family ties (including permitting overnight stays in a house located at the facility) and preparing prisoners to reintegrate back into society.

  It makes sense, according to Halden’s governor, because everyone is eventually going to be released. A monstrous prison will create monsters. And what is the point of that?

  Halden will never be repurposed as a haunted house or host dozens of paranormal investigations because, unlike Eastern State, it isn’t scary, and it wasn’t designed for suffering. It is hard to think of a model more different from our own. When Eastern State’s architect, John Haviland, put his pen to paper, it was to “strike fear into the hearts of those who thought of committing a crime.” And the grim fortress that he engendered has left a frightening legacy: in the United States, we are still wedded to the belief that the best way to protect the public is through harsh punitive sanctions and incapacitation. But times have changed. If once Europeans flocked to Pennsylvania to learn about its novel penitentiary, it is now time for Americans to look across the Atlantic.

  In 2013, more than 150 years after Tocqueville and Dickens visited Eastern State, a delegation from Pennsylvania traveled to northern Europe to tour prison facilities, meet with inmates, and talk to correctional officials. What they found startled them. At the German and Dutch prisons they visited, inmates were making meals, wearing their own clothes, and locking their cells with keys when they went to work or study. Women with children under three had them by their side in special mother-baby units. And prisoners were provided with frequent home leave. Solitary confinement was very rare—a last resort—and restricted to short amounts of time (just hours or a few days), with provision made for regular human contact and the opportunity, with good behavior, for an early return to the general population. To encourage proper conduct, positive reinforcement was used far more often than harsh discipline. And when offenders were released, they were not permanently excluded—as is commonly the case in the United States—from voting, receiving government benefits, or enjoying other normal rights of citizenship. They were free.

  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. To help inmat
es with that eventual transition, the conditions inside the prison resemble the conditions outside as closely as possible. The rehabilitation model brings special benefits to mentally ill offenders. Incarcerating them makes little sense in this context, so in Germany they are instead placed in psychiatric hospitals, where they can get the specialized care they need to get better.

  It is easy to think that there must be a catch or a trick. But the numbers suggest that the northern European model works. Norway has one of the lowest recidivism rates in the world—20 percent after two years. And reoffending in neighboring countries is also far lower than in North America. Do some prisoners take advantage of the comparative leniency? No doubt, but the numbers seem small indeed. In Germany, only one percent of prisoners fail to report back to prison after being given home leave.

  Could America ever give up its punitive bent and focus on rehabilitation? There are plenty who would point to our unique culture to suggest that it’s a fool’s endeavor. The public wouldn’t stand for it, they warn. Our criminals are more dangerous. We’ve always been a sink-or-swim nation: freedom to succeed and freedom to fail. No handouts. No tears for the wicked. And it’s true that the success of European prisons is facilitated by a much more robust social safety net and a political environment in which civil treatment of offenders is more widely accepted. But the differences can be overdrawn. Britain, which managed to turn away from long-term solitary confinement starting in the 1980s, had—like us—a history of prison attacks on staff, murderous psychopaths, and inmate groups intent on undermining the correctional system. But British leaders found the courage to pull their punches, to give those behind bars more command over their lives, and things didn’t get worse—they got better.

  Even stronger evidence that American innovation is possible comes from new experiments in Pennsylvania and elsewhere that divert offenders into mental health programs, restrict inmate isolation, and provide transitional housing. In just the last five years, some states, including Mississippi and Colorado, have drastically cut their solitary populations, with encouraging results.

  And, in fact, it is our unique culture that ought to propel reform, not stymie it. For a country that trumpets its commitment to freedom as exceptional and so willingly accepts risk in the name of protecting fundamental liberties, our maximally coercive and restrictive approach is baffling, even ludicrous.

  We will fight tirelessly to protect the rights of those who spew hate in the public square, stockpile weapons capable of wiping out classrooms of children, and flood our airwaves with lies to sway elections, but we draw the line at permitting a man convicted of stealing videotapes a door to his toilet, the chance to spend a night with his family, or the experience of preparing his own dinner in his own shirt. If ensuring freedom for those who may harm us is worth the risk when the costs are high, that must certainly be the case when protecting their rights leaves us safer.

  PART IV

  Reform

  11

  WHAT WE MUST OVERCOME

  The Challenge

  Shortly after I became a law professor, I received a jury summons. I knew that law professors rarely make it onto juries; attorneys regularly strike them out of a fear that they will dominate the jury’s decision-making—and also, I hear, because no attorney wants to feel like she is back in law school, with a professor analyzing her every word. However, I held out hope that I might pass through the gauntlet of background questions and find myself among the chosen twelve.

  The first step was to fill out a juror information questionnaire with demographic information and then answer some “yes/no” questions. “Would you be more likely to believe the testimony of a police officer or any other law enforcement officer just because of his or her job?” “Would you have any problem following the Court’s instruction that the defendant in a criminal case does not have to take the stand or present evidence, and it cannot be held against the defendant if he or she elects to remain silent or present no evidence?” “Is there any other reason you could not be a fair juror in a criminal case?”

  If you checked “yes” for any of the boxes, the judge asked you some follow-up questions. For example, if you indicated that you were more likely to believe the testimony of a police officer, he explained to you that your job as a juror required you to treat every witness the same regardless of his or her position, race, gender, or the like. Then he asked whether you still thought you would have a problem being impartial. Everyone who had checked the “yes” box on that question changed his or her answer to “no.” The judge was satisfied, and we moved on.

  Many people would view this interaction as a perfect example of what works in our criminal justice system. Here, it would seem, we have not put our heads in the sand—we’ve acknowledged that there are prejudices certain jurors bring to court, and we’ve directly addressed them. We haven’t shied away from asking awkward questions, and we’ve followed up to make our expectations clear. Just as important, we’ve gone big: every jury in every criminal case is taken through the screening. Even if they don’t make it onto a panel, those in the jury pool leave with an understanding of what impartiality means and how to achieve it. Isn’t this meaningful, honest progress?

  In fact, our approach to juror screening provides a good illustration of precisely what we are doing wrong in our quest to eliminate unfairness from the law. It represents the first of three serious challenges we face in realizing science-based reform.

  —

  The problem with our questions and instructions isn’t the underlying intention to ensure neutral and objective justice, nor is it the general formula offered to accomplish this worthy goal: define bias, screen for bias, correct bias. Both would seem to be quite in keeping with the spirit of this book. The trouble comes in the details.

  While we purport to address bias, what we actually do is reinforce a false narrative of what bias is, where it comes from, and how it can be remedied. And this puts us in a worse spot than if our system took no position on bias at all.

  Take the matter of introspection. There’s a wealth of research suggesting that many biases can’t be detected through soulsearching. And while it’s one thing for us all to walk around believing that it’s possible to self-reflect and identify all of our hidden proclivities, it’s quite another thing to have the legal establishment confirm that intuition. Unfortunately, that is exactly what many of our rules and procedures do.

  In the Third Circuit, for instance, jurors are asked questions to determine if they “have any beliefs, feelings, life experiences, or any other reasons that might influence [them] in rendering a verdict.” Does the fact that the defendant was born in Guatemala matter to you? Would you discriminate against someone based on the color of his skin? As a juror, you think about the person you are—someone who believes deeply in equality—and you answer, “No, of course not.” You know you’re not racist. Case closed: there is no threat of bias toward the Hispanic defendant.

  What’s so damaging about this is not just that a juror may end up mistakenly believing that he’s capable of objectivity, but that by weighing in, the Third Circuit stacks the cards against addressing the scourge of implicit racial bias. Now, to enact reform, we must overcome not only people’s inherent skepticism but also the fact that they have been told repeatedly that such bias does not exist: if you know you are completely egalitarian, you cannot discriminate.

  The same thing happens when our legal system bolsters the myth that being impartial is simply a choice. Over and over, during the trial process, jurors are instructed to switch off their irrelevant thoughts, emotions, and beliefs. “Do not allow sympathy, prejudice, fear, or public opinion to influence you,” Third Circuit jurors are told. “You should also not be influenced by any person’s race, color, religion, national ancestry, or gender.” Likewise, whenever the judge sustains an objection, “you must disregard the question or the exhibit entirely. Do not think about or guess what the witness might have said in answer to the question; do not think
about or guess what the exhibit might have shown.” And if the judge orders evidence to be stricken or removed from the record, “you must not consider [it] or be influenced [by it] in any way.”

  Knowing how little control we have over the many automatic processes in our brains, such directives seem almost laughable. But this is no farce: these are the instructions that guide those participating in our legal system every single day. Out of thin air, the Third Circuit has conjured up a magical remote control for the brain, allowing jurors to erase, pause, and mute on command.

  As amazing as our minds actually are, our legal rules, regulations, interpretations, and instructions make them out to be many times as impressive. To hear the law tell it, we are supermen and wonder women, able to rise above our prejudices, see through lies, and recall past events with crystal clarity. Every juror and every witness in every case is encouraged to have faith in his or her basic intuitions. Every judge on every court has been told that judicial bias can be controlled simply by making good choices. And every police officer and prosecutor has been trained to avoid misconduct with the same mantra of moral integrity through self-discipline. So, we vanquish our misgivings. Yes, we are able to set aside our political beliefs to decide this case. Yes, we are 100 percent certain that this man was the perpetrator. Yes, in carrying out our duties, we will treat every victim as equally worthy of respect.

  Being aware of our natural limitations isn’t a cure-all. But it’s a necessary first step. As we saw when Judge Frank Barbaro revisited a decision he’d made years earlier: doubt is the friend of fairness. Without it, you cannot convince anyone that they really do have it wrong or that change is urgently needed. We’ll need to go further, though, to overcome the second significant threat to progress, reexamining the basic framework for protecting the public from mistreatment by the government that we’ve constructed over centuries.