Unfair

by Adam Benforado

  In one set of studies: Witt and Brockmole, “Action Alters Object Identification,” 1159.

  Participants were told that: Witt and Brockmole, “Action Alters Object Identification,” 1160.

  With a gun in hand: Witt and Brockmole, “Action Alters Object Identification,” 1165.

  Moreover, simply having a gun: Witt and Brockmole, “Action Alters Object Identification,” 1164.

  The best explanation is that: Witt and Brockmole, “Action Alters Object Identification,” 1159–60; 1166.

  And that suggests that having: Witt and Brockmole, “Action Alters Object Identification,” 1166.

  Even the surrounding landscape: Anyone who has ever taken the time to look at a map of crimes in his or her community will have noted one of the key features of crime: it is extremely spatially concentrated. Ken Pease, “Crime Reduction,” in The Oxford Handbook of Criminology, eds. Mike Maguire, Rod Morgan, and Robert Reiner, 3rd ed. (Oxford: Oxford University Press, 2002), 960. Part of the explanation for this phenomenon has to do with other factors that are spatially concentrated, like poverty. But there is also evidence that elements in the physical landscape may themselves engender crime. Benforado, “The Geography of Criminal Law,” 842–43.

  Back in the early 1980s: George L. Kelling and James Q. Wilson, “Broken Windows: The Police and Neighborhood Safety,” Atlantic Monthly, March 1, 1982, http://www.theatlantic.com/​magazine/archive/1982​/03/broken-windows/304465/2/.

  For a long time, the notion: Benforado, “The Geography of Criminal Law,” 842–43; Bernard E. Harcourt, “Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style,” Michigan Law Review 97 (1998); Kees Keizer, Siegwart Lindenberg, and Linda Steg, “The Spreading of Disorder,” Science 322 (2008): 1681; D. W. Miller, “Poking Holes in the Theory of ‘Broken Windows,’ ” Chronicle of Higher Education 31, no. 17 (2001)

  In one set of experiments: Keizer, Lindenberg, and Steg, “The Spreading of Disorder,” 1681–85.

  When there was more graffiti: Keizer, Lindenberg, and Steg, “The Spreading of Disorder,” 1684.

  When the experimenters illegally locked: Keizer, Lindenberg, and Steg, “The Spreading of Disorder,” 1683–84.

  On a positive note: Irus Braverman, “Governing Certain Things: The Regulation of Street Trees in Four North American Cities,” Tulane Environmental Law Journal 22, no. 1 (2008): 47; Frances E. Kuo and William C. Sullivan, “Environment and Crime in the Inner City: Does Vegetation Reduce Crime?,” Environment and Behavior 33, no. 3 (May 2001): 343–64.

  Indeed, in my hometown: Mary K. Wolfe and Jeremy Mennis, “Does Vegetation Encourage or Suppress Urban Crime? Evidence from Philadelphia, PA,” Landscape and Urban Planning 108 (November–December 2012): 112–22.

  The question that sparked it: Miller, The Social Psychology of Good and Evil, 26–27. If you guessed, “1 in 100,” you can count yourself as average; if you guessed “1 in 1,000” you share company with the professional psychologists that Stanley Milgram surveyed before conducting his experiments on compliance. Stanley Milgram, “Behavioral Study of Obedience,” Journal of Abnormal and Social Psychology 67, no. 4 (1963): 375, doi: 10.1037/h0040525; Thomas Blass, “The Milgram Paradigm After 35 Years: Some Things We Now Know about Obedience to Authority,” Journal of Applied Social Psychology 29, no. 5 (May 1999): 963–64, doi: 10.1111/j.1559-1816.1999.tb00134.x; Stanley Milgram, Obedience to Authority: An Experimental View (New York: Harper and Row, 1974): 31; Philip G. Zimbardo and Michael R. Leippe, The Psychology of Attitude Change and Social Influence (New York: McGraw-Hill, 1991): 67–68.

  Although logic suggested that: The 63 percent figure is from the participants in Milgram’s first experiment, which is similar to the level observed in follow-up work. Zimbardo and Leippe, The Psychology of Attitude Change and Social Influence, 68.

  What was even more interesting: Milgram, Obedience to Authority, 35, 60–61, 94–95, 119.

  If so, obedience plunged: Milgram, Obedience to Authority, 116–21.

  With a scientist: Milgram, Obedience to Authority, 16, 95, 99–105.

  In the Bridgeport lab: Milgram, Obedience to Authority, 60–70.

  We want to believe that: Miller, The Social Psychology of Good and Evil, 8, 26.

  But that is simply: As the psychologist Phil Zimbardo has written, “While a few bad apples might spoil the barrel (filled with good fruit/people), a barrel filled with vinegar will always transform sweet cucumbers into sour pickles—regardless of the best intentions, resilience, and genetic nature of those cucumbers.” Miller, The Social Psychology of Good and Evil, 47.

  There is psychological truth behind: Miller, The Social Psychology of Good and Evil, 3.

  Arendt was writing about: Miller, The Social Psychology of Good and Evil, 3. According to Arendt, he was “not even sinister”: an unexceptional bureaucrat had coordinated the execution of millions of people. Nick Cohen, “Where Be Monsters?” Observer, January 17, 2004, http://www.theguardian.com/​uk/2004/jan/18​/ukcrime.guardiancolumnists.

  Here was someone who had: Kathleen B. Jones, “The Trial of Hannah Arendt,” Humanities 35, no. 2 (March/April 2014), http://www.neh.gov/​humanities/2014​/marchapril/feature​/the-trial-hannah-arendt.

  Although subsequent research has revealed: Jennifer Schuessler, “Book Portrays Eichmann as Evil, but Not Banal,” New York Times, September 2, 2014, http://www.nytimes.com/​2014/09/​03/books/book-portrays-eichmann-as-evil-but-not-banal.html?_r=0.

  4. Breaking the Rules ~ The Lawyer

  Gerry Deegan was dying: Connick v. Thompson, 131 S. Ct. 1350, 1374–75 (2011) (Ginsburg, J., dissenting); Dahlia Lithwick, “Cruel but Not Unusual: Clarence Thomas Writes One of the Meanest Supreme Court Decisions Ever,” Slate, April 11, 2011, http://www.slate.com/​articles/news_and_politics​/jurisprudence/2011/04/cruel_but_not_unusual.single.html.

  He had worked for: James Ridgeway and Jean Casella, “14 Years on Death Row. $14 Million in Damages?” Mother Jones, October 6, 2010, http://www.motherjones.com/​politics​/2010/09/connick-v-thompson.

  Now his number had come up: Connick, 131 S. Ct. at 1374–75 (Ginsburg, J., dissenting).

  Riehlmann was a former prosecutor: Connick, 131 S. Ct. at 1374–75 (Ginsburg, J., dissenting).

  It all started with: Connick, 131 S. Ct. at 1371 (Ginsburg, J., dissenting).

  The only witness to the shooting: Connick, 131 S. Ct. at 1371 (Ginsburg, J., dissenting).

  But that didn’t narrow things: Connick, 131 S. Ct. at 1371 (Ginsburg, J., dissenting).

  The money lured Richard Perkins: Connick, 131 S. Ct. at 1371 (Ginsburg, J., dissenting).

  According to Perkins: Connick, 131 S. Ct. at 1371 (Ginsburg, J., dissenting).

  The police snagged Freeman: John Thompson, “The Prosecution Rests, but I Can’t,” New York Times, April 9, 2009, http://www.nytimes.com/​2011/04/10​/opinion/10thompson.html?pagewanted=all; Connick, 131 S. Ct. at 1371 (Ginsburg, J., dissenting); Thompson, “The Prosecution Rests.”

  Thompson’s two sons were there: Thompson, “The Prosecution Rests.”

  They watched as the police: Thompson, “The Prosecution Rests.”

  He was twenty-two: Thompson, “The Prosecution Rests.”

  Freeman matched the description: Connick, 131 S. Ct. at 1371 (Ginsburg, J., dissenting).

  But it was Thompson: Connick, 131 S. Ct. at 1371 (Ginsburg, J., dissenting).

  His photo in the paper: Connick, 131 S. Ct. at 1372 (Ginsburg, J., dissenting).

  Now, looking at the Afro: Connick, 131 S. Ct. at 1372 (Ginsburg, J., dissenting).

  And when they went down: Connick, 131 S. Ct. at 1372 (Ginsburg, J., dissenting).

  What’s more, Freeman had turned: Connick, 131 S. Ct. at 1371–72 (Ginsburg, J., dissenting).

  All they had to do: Connick, 131 S. Ct. at 1372 (Ginsburg, J., dissenting).

  The opening move was to try: Connick, 131 S. Ct. at 1372 (Ginsbu
rg, J., dissenting).

  If he chose to testify: Connick, 131 S. Ct. at 1372 (Ginsburg, J., dissenting).

  And without Thompson’s testimony: Connick, 131 S. Ct. at 1374 (Ginsburg, J., dissenting).

  Just as important, a prior: Susan Bandes, “The Lone Miscreant, The Self-Training Prosecutor, and Other Fictions: A Comment on Connick v. Thompson,” Fordham Law Review 715 (2012): 722.

  Deegan was enlisted to assist: Connick, 131 S. Ct. at 1372 (Ginsburg, J., dissenting).

  Thompson was going: Connick, 131 S. Ct. at 1356.

  Harry F. Connick Sr., the district attorney: “Harry Connick Jr.,” Biography.com, accessed May 13, 2014, http://www.biography.com/​people/harry-connick-jr-5542; Connick, 131 S. Ct. at 1372 (Ginsburg, J., dissenting).

  John Thompson was sent to prison: Connick, 131 S. Ct. at 1370 (Ginsburg, J., dissenting); Thompson, “The Prosecution Rests”; Marianne Fisher-Giorlando, “Louisiana,” in The Social History of Crime and Punishment in America: An Encyclopedia, ed. Wilbur R. Miller (Los Angeles: SAGE Publications, 2012), 1041.

  He was sitting there now: Connick, 131 S. Ct. at 1370 (Ginsburg, J., dissenting).

  During the carjacking, the eldest: Connick, 131 S. Ct. at 1371 (Ginsburg, J., dissenting).

  A crime-scene investigator had: Connick, 131 S. Ct. at 1371 (Ginsburg, J., dissenting).

  But Thompson’s lawyer never knew: Connick, 131 S. Ct. at 1373 (Ginsburg, J., dissenting).

  He had kept all of this: Connick, 131 S. Ct. at 1375 (Ginsburg, J., dissenting).

  Back in 1963, in the case: Brady v. Maryland, 373 U.S. 83, 87 (1963); Connick, 131 S. Ct. at 1370 (Ginsburg, J., dissenting); Maurice Possley and Ken Armstrong, “The Flip Side of a Fair Trial,” Chicago Tribune, January 11, 1999, http://articles.chicagotribune.com/​1999-01-11/news​/9905150172_1_prosecutors-courtroom-recalls.

  Failing to do so: Connick, 131 S. Ct. at 1370 (Ginsburg, J., dissenting).

  Riehlmann suggested that Deegan reveal: Connick, 131 S. Ct. at 1375 (Ginsburg, J., dissenting).

  But when Deegan elected: Connick, 131 S. Ct. at 1375 (Ginsburg, J., dissenting).

  For five more years: Connick, 131 S. Ct. at 1374 (Ginsburg, J., dissenting).

  Each time it was delayed: Thompson, “The Prosecution Rests.”

  His seventh and final date: Thompson, “The Prosecution Rests.”

  In a last-ditch effort: Connick, 131 S. Ct. at 1375 (Ginsburg, J., dissenting).

  It was less than a month: Bandes, “The Lone Miscreant,” 715.

  And then there it was: Connick, 131 S. Ct. at 1375 (Ginsburg, J., dissenting).

  B, it said: Connick, 131 S. Ct. at 1375 (Ginsburg, J., dissenting).

  Thompson had type O blood: Connick, 131 S. Ct. at 1375 (Ginsburg, J., dissenting).

  He was innocent: Connick, 131 S. Ct. at 1375 (Ginsburg, J., dissenting).

  Thompson was finally able: Bandes, “The Lone Miscreant,” 722–23.

  At the new trial: Connick, 131 S. Ct. at 1357 n. 2.

  It took the jurors only: Connick, 131 S. Ct. at 1376 (Ginsburg, J., dissenting).

  After more than eighteen years: Connick, 131 S. Ct. at 1376 (Ginsburg, J., dissenting). During his time in prison, Thompson spent fourteen years on death row. Connick, 131 S. Ct. 1350 at 1370 (Ginsburg, J., dissenting).

  Prosecutors are mostly upstanding: Connick, 131 S. Ct. at 1366.

  Prosecutors know their: Connick, 131 S. Ct. at 1362–63, 1365–66.

  And in the Court’s view: Connick, 131 S. Ct. at 1362–63, 1366.

  After being released: Keenan, “The Myth of Prosecutorial Accountability,” 207.

  But when the case made it: Thompson, “The Prosecution Rests.”

  In the majority’s opinion: Connick, 131 S. Ct. at 1362–63, 1366.

  Similarly, Justice Scalia, in a concurrence: Connick, 131 S. Ct. at 1368–69 (Scalia, J., concurring).

  Deegan, in this framing: Connick, 131 S. Ct. at 1368 (Scalia, J., concurring).

  If you had a large barrel: Connick, 131 S. Ct. at 1366 (Scalia, J., concurring). When news of the Supreme Court’s dismissal of Thompson’s case reached the current district attorney in New Orleans, Leon A. Cannizzaro, Jr., he offered a similar assessment that this was nothing more than “the intentional, unethical and illegal acts of a rogue prosecutor.” Adam Liptak, “$14 Million Jury Award to Ex-Inmate Is Dismissed,” New York Times, March 29, 2011, accessed April 21, 2014, http://www.nytimes.com/​2011/03​/30/us/30scotus.html?_r=0; “Orleans Parish District Attorney,” accessed April 21, 2014, http://orleansda.com/​the-d-a/.

  Yes, we should expect: The Nazis at Nuremberg had lawyers. “Nuremberg Trials,” History.com, accessed April 21, 2014, http://www.history.com/​topics/world-war-ii​/nuremberg-trials. So did McVeigh and Madoff. “McVeigh’s Former Lawyer Speaks Out,” CBS News, June 11, 2001, http://www.cbsnews.com/​news/mcveighs-former​-lawyer-speaks-out/; “Ira Sorkin, Lawyer for Bernie Madoff, Leaves Dickstein Shapiro,” JD Journal, November 3, 2010, http://www.jdjournal.com/​2010/11/03/ira-sorkin-lawyer-for-bernie-madoff-leaves-dickstein-shapiro/. One of O.J.’s attorneys, Harvard Law professor Alan Dershowitz has said that he would represent “a worthless son of a bitch on their way to hell.” Walter Stern, “Dershowitz Defends His Defense of Bad People,” Yale Herald, February 5, 1999, http://www.yaleherald.com/​archive/xxvii​/1999.02.05/news/dersg.html. And these jackals seem more than happy to use any trick or lie in the book to pull the wool over the eyes of the judge, jury, and public.

  A slight variation on this common conception of the lawyer is that it is not so much that he is immoral than that he is amoral. And this amorality leads lawyers to willingly act dishonestly when it is in their interests to do so (i.e., when the benefits outweigh the costs). Lawyers look at (1) what is to be gained and (2) the likelihood of being caught and do a simple calculation.

  These notions of the character of the attorney are ever-present in our culture. If you look at depictions of lawyers in films, television series, and popular fiction, you will generally find two stock characters. The first is the good lawyer: the selfless hero, true to his principles, defending the disenfranchised and the downtrodden and fighting for justice. Carrie Menkel-Meadow, “Can They Do That? Legal Ethics in Popular Culture,” 48 UCLA Law Review 1305, 1315 (2001). Atticus Finch, Clarence Darrow, and Perry Mason are all in this mold. Menkel-Meadow, “Can They Do That?” 1315. The second is the bad lawyer: the greedy and unethical predator, manipulative, back-stabbing, and vicious. Michael Asimow, “Embodiment of Evil: Law Firms in the Movies,” 48 UCLA Law Review 1339, 1341 (2001). Here, we have law firm associate Fletcher Reed, Jim Carrey’s character in Liar Liar, who revels in his mendacity, until his son casts a spell that compels him to speak only the truth, seriously endangering his job at the firm where lying is a way of life. Asimow, “Embodiment of Evil,” 1356–57. Or we have managing partner John Milton, played by Al Pacino in The Devil’s Advocate who is actually (spoiler alert) Satan. Asimow, “Embodiment of Evil,” 1357–58. John Grisham’s books and the resultant slew of movie adaptations are filled with these despicable characters ready to break the rules whenever they have a chance. Asimow, “Embodiment of Evil,” 1352–54. Dishonesty seems to infect even the more sympathetic of Grisham’s lawyers, including Rudy—the fresh-faced attorney (played by a young, fresh-faced Matt Damon) going up against an evil insurance company—in The Rainmaker who explains, “each time you try a case, you step over the line. You do it enough times and you forget where the line is.” Asimow, “Embodiment of Evil,” 1354.

  Grisham’s oeuvre embodies what some researchers believe has been a shift toward more negative depictions of lawyers, particularly in the last three or four decades, which may be tied to a loss of faith in lawyers generally during this time period. Asimow, “Embodiment of Evil,” 1371. The dishonest lawyer is now all lawyers: a stock character in late-night stand-up routines, New Yorker cartoons, and, if my life has been any guidance, the jokes of older family friends upon hearing that you are in law sch
ool or have been admitted to the bar.

  “How does an attorney sleep? First he lies on one side, then he lies on the other.” “Lawyer Joke Collection,” last modified October 31, 2010, http://www.iciclesoftware.com/​LawJokes/IcicleLawJokes.html.

  “How many lawyers does it take to screw in a lightbulb? Three. One to climb the ladder. One to shake it. And one to sue the ladder company.” “Lawyer Joke Collection.”

  Today, when I tell people I’m a lawyer, I expect about half the time, I’ll get a groan and good-natured cut down. And unsurprisingly, in polls measuring confidence in public institutions, law firms rank at the bottom. Harris Interactive, “Confidence in Congress Stays at Lowest Point In Almost Fifty Years,” May 21, 2012, http://www.harrisinteractive.com/​NewsRoom/HarrisPolls/tabid/447​/ctl/ReadCustom%20Default/mid/1508/ArticleId/1068/Default.aspx. In 2012, only 12 percent of the public expressed that they had a great deal of confidence in the leadership of law firms. Harris Interactive, “Confidence in Congress.”

  When Deegan failed to turn: Lithwick, “Cruel but Not Unusual.”

  At this very moment: Lauren Indvik, “U.S. Internet Piracy Is on the Decline,” USA Today, March 25, 2011, http://content.usatoday.com/​communities/technologylive/post/2011​/03/us-internet-piracy-is-on-the-decline/1#.UISdzlGzmCI; Recording Industry Association of America, “Student FAQ,” accessed April 21, 2014, http://www.riaa.com/​toolsforparents.php?content​_selector=resources-for-students; Stephen E. Siwek, “The True Cost of Sound Recording Piracy to the U.S. Economy,” August 21, 2007, http://www.ipi.org/​ipi_issues/detail/the-true​-cost-of-sound-recording-piracy-to-the-us-economy. According to a recent estimate by the Association of Certified Fraud Examiners, unethical actions cost businesses in the United States about 7 percent of their annual revenues—a mindboggling $1 trillion hit to our economy. Francesca Gino et al., “Unable to Resist Temptation: How Self-Control Depletion Promotes Unethical Behavior,” Organizational Behavior and Human Decision Processes 115 (2011): 191–92.