Unfair

by Adam Benforado

  Some urban police forces have already: John Buntin, “What Does It Take to Stop Crips and Bloods from Killing Each Other,” New York Times, July 10, 2013, http://www.nytimes.com/​2013/07/14/​magazine/what-does-it​-take-to-stop-crips-and-bloods-from-killing​-each-other.html?pagewanted=all.

  One recent example comes from: Buntin, “What Does It Take to Stop Crips and Bloods from Killing Each Other.”

  Hoping to reverse the tide: Buntin, “What Does It Take to Stop Crips and Bloods from Killing Each Other.”

  The two groups began coming together: Buntin, “What Does It Take to Stop Crips and Bloods from Killing Each Other.”

  The new level of understanding: Buntin, “What Does It Take to Stop Crips and Bloods from Killing Each Other.”

  In 2013, in fact, Los Angeles: “L.A. Now Live: First Homicides of 2014 and L.A.’s Crime Statistics,” L.A. Times, January 6, 2014, http://www.latimes​.com/​local/lanow/​la-me-ln-la-now-live-​crime-stats-20140106-dto,0,5233748.story#axzz2tmpi2j2R. The crime statistics suggest that Los Angeles residents are now as safe as New Yorkers. Buntin, “What Does It Take to Stop Crips and Bloods from Killing Each Other.”

  There are many factors at work: Buntin, “What Does It Take to Stop Crips and Bloods from Killing Each Other.”

  And we ought to rethink certain: The New York Police Department, for example, prohibits personnel from residing in the same precinct to which they are assigned. Brian Lehrer, “Following Up: Should Cops Live in the Same Neighborhoods they Police?,” WNYC, April 18, 2013, http://www.wnyc.org/​story/287583​-following-beat​-cops-and-community-policing/.

  The resulting interrogations tend to: It is noteworthy that the first of the Reid technique’s “nine steps of interrogation” is “confrontation of the suspect with a statement that he is considered to be the person who committed the offense.” Fred E. Inbau et al., Criminal Interrogation and Confessions (Burlington, MA: Jones & Bartlett Learning, 2011), 188.

  So, what if we recast: Simon, In Doubt, 141; Saul M. Kassin et al., “Police-Induced Confessions: Risk Factors and Recommendations,” Law and Human Behavior 34 (2019): 27–28.

  That’s why detectives are permitted: Inbau et al., Criminal Interrogation and Confessions, 205. The Reid technique manual states that “the purpose of an interrogation is to learn the truth.” Inbau et al., Criminal Interrogation and Confessions, 5. But that’s contradicted by the focus on minimization approaches that direct investigators to, for example, “Suggest a Less Revolting and More Morally Acceptable Motivation or Reason for the Offense Than That Which Is Known or Presumed.” Inbau et al., Criminal Interrogation and Confessions, 214. Someone who is believed to have sexually assaulted a child is to be given the opportunity “to ‘save face’ by blaming alcohol for his conduct.” Inbau, et al., Criminal Interrogation and Confessions, 214. Likewise, an investigator should suggest to a suspect in a fatal robbery “that the suspect had not intended, or had not planned, the killing, and that the only motive was to get some needed money; nevertheless, the shooting was necessary when the victim resisted the robbery attempt.” Inbau et al., Criminal Interrogation and Confessions, 215. In other words, the goal is getting an admission of guilt, facts be damned. And this is extraordinarily problematic, not only because in suggesting these “themes” investigators are liable to interfere with levels of criminal intent relevant during the guilt phase of trial but also because these false justifications may sway the punishment phase of trial. The Reid manual’s suggestion that such problems can be dealt with by investigators going back later in the interrogation process to solicit additional corroborative details to prove the required element of criminal intent or by police testifying at trial about the nature of the confession seem weak countermeasures indeed. Inbau et al., Criminal Interrogation and Confessions, 217–18.

  During the initial stages of: We need detectives to approach an interview with the mindset that the suspect may or may not be guilty and that information gained under coercion is not useful. Simon, In Doubt, 141; Kassin et al., “Police-Induced Confessions,” 27–28.

  Even if the story begins to sound: Simon, In Doubt, 141; Kassin et al., “Police-Induced Confessions,” 27–28.

  Those who are most vulnerable: Simon, In Doubt, 141; Kassin et al., “Police-Induced Confessions,” 30–31.

  The reforms have not only: Simon, In Doubt, 140–42; Kassin et al., “Police-Induced Confessions,” 27–28.

  In Germany, for instance, a prosecutor: Volker F. Krey, “Characteristic Features of German Criminal Proceedings—An Alternative to the Criminal Procedure Law of the United States?” Loyola of Los Angeles International and Comparative Law Review 21 (1999): 603; Markus Dirk Dubber, “American Plea Bargains, Germany Lay Judges, and the Crisis of Criminal Procedure,” Stanford Law Review 49 (1997): 578.

  The adversarial approach is not: John H. Langbein, “Torture and Plea Bargaining,” University of Chicago Law Review 46 (1978): 10–11.

  It was developed to ensure fairness: Langbein, “Torture and Plea Bargaining,” 11.

  And with lawyers constantly wrangling: Langbein, “Torture and Plea Bargaining,” 11.

  We just don’t have the resources: Langbein, “Torture and Plea Bargaining,” 8.

  In nine out of ten cases today: Langbein, “Torture and Plea Bargaining,” 8.

  That means that only one: Lindsey Devers, “Plea and Charge Bargaining Research Summary,” U.S. Department of Justice, January 21, 2011, https://www.bja.gov​/Publications/​PleaBargainingResearchSummary.pdf.

  Only one in ten enjoys the presumption: Langbein, “Torture and Plea Bargaining,” 21.

  Only one in ten is provided: Langbein, “Torture and Plea Bargaining,” 21.

  Constitutional protections do not apply: Langbein, “Torture and Plea Bargaining,” 21; Dubber, “American Plea Bargains,” 598.

  And this is particularly consequential: Langbein, “Torture and Plea Bargaining,” 18.

  Blacks taking pleas end up with: Devers, “Plea and Charge Bargaining Research Summary,” 3.

  People committing: One district attorney may decide to crack down on an offense, while another offers leniency. Devers, “Plea and Charge Bargaining Research Summary,” 3.

  And, as we’ve seen: This is exacerbated when prosecutors use threats to gain a conviction despite having insubstantial evidence to actually prevail before a jury. Devers, “Plea and Charge Bargaining Research Summary,” 1–2.

  When that happens, not only: A related problem is that, with plea bargaining, we also end up falsely labeling the crimes that people did actually commit. Someone may commit murder, for instance, but then plea to the lesser offense of manslaughter. When that happens, the important distinctions between the crimes is lost, as is the truth-telling function of the legal system.

  The plea bargain, then, is best likened: Langbein, “Torture and Plea Bargaining,” 17.

  This presents a profound irony: Langbein, “Torture and Plea Bargaining,” 21.

  It seems no coincidence that: Langbein, “Torture and Plea Bargaining,” 21–22.

  As part of this process, it may: Dubber, “American Plea Bargains,” 579. In practice, prosecutors may still exhibit some bias toward gaining a conviction, like their counterparts in England and the United States, but the evenhanded conception of the office is likely to have an impact, as we discussed in the context of prosecutorial misconduct. Dubber, “American Plea Bargains,” 579.

  According to the Texas Department: Texas Department of Criminal Justice, “Correctional Officer Essential Functions,” April 1, 2014, http://www.tdcj​.state.tx.us/​hrextra/coinfo​/essentialfunctions.html. No background or experience is necessary to become a prison guard and any eighteen year old with a GED certificate and a clean record is eligible. Texas Department of Criminal Justice, “Correctional Officer Eligibility Criteria,” January 9, 2014, http://www.tdcj.state.​tx.us/​hrextra/​coinfo/emp-co.html.

  They take courses in educational theory: Ram Subramanian and Alison Shames, Sentencing and
Prison Practices in Germany and the Netherlands: Implications for the United States (New York: Vera Institute of Justice, 2013), 12 http://www.vera.org/​sites/default​/files/resources/downloads/european-american​-prison-report-v3.pdf. Before taking a position, German prison staff, for instance, must undergo twelve months of theory and twelve months of practice. In Norway, guards all complete a two-year course while at university. Erwin James, “The Norwegian Prison Where Inmates Are Treated Like People,” Guardian, February 24, 2013, http://www.theguardian.com/​society/2013/feb/25​/norwegian-prison-inmates​-treated-like-people.

  Rather than minimize direct contact: James, “The Norwegian Prison Where Inmates Are Treated Like People”; Subramanian and Shames, Sentencing and Prison Practices.

  There is strong evidence that ensuring: Jeremy Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry (Washington, DC: Urban Institute Press, 2005), 173; BI Incorporated, Overview of the Illinois DOC High-Risk Parolee Reentry Program and 3-Year Recidivism Outcomes of Program Participants (2002), 4.

  Employment does more than: Christopher Uggen, “Work as a Turning Point in the Life Course of Criminals: A Duration Model of Age, Employment, and Recidivism,” American Sociological Review 67 (2000): 529–31.

  Day-pass employment of prisoners: Such privileges can also be great tools for positive reinforcement, offering inmates more of the freedoms that those on the outside enjoy as they demonstrate that they are prepared to handle the responsibilities of upright citizens. Although there are risks to this approach, the evidence from countries like the Netherlands, Norway, and Germany is that the benefits outweigh the costs and can be successfully managed. Subramanian and Shames, Sentencing and Prison Practices.

  Roughly nine out of ten employers: Kimani Paul-Emile, “Beyond Title VII: Rethinking Race, Ex-Offender Status and Employment Discrimination in the Information Age,” Virginia Law Review 100 (2014): 895. The criminal background check industry is thriving with thousands of companies and revenues of more than a billion dollars a year. Paul-Emile, “Beyond Title VII,” 903. And researchers have documented that while both whites and blacks are less likely to receive a call-back interview when they have a criminal record, blacks are significantly more hurt by the record than whites. Indeed, in the study, a white with a criminal record was more likely to receive a call back than a black without a record. Devah Pager, “The Mark of a Criminal Record,” American Journal of Sociology 108 (2003): 959; Devah Pager, Bruce Western, and Bart Bonikowski, “Discrimination in a Low-Wage Labor Market: A Field Experiment,” American Sociological Review 74 (2009): 785–86.

  The scope of the problem is enormous: over 65 million individuals—just under a third of the total adult U.S. population—have some sort of criminal record. Paul-Emile, “Beyond Title VII,” 895; Michelle Natividad Rodriguez and Maurice Emsellem, 65 Million “Need Not Apply”: The Case for Reforming Criminal Background Checks for Employment (New York: The National Employment Law Project, 2011), 3; U.S. Census Bureau, Profile of General Population and Housing Characteristics: 2010, 1. The added injustice for people of color is that they are arrested at vastly higher rates than whites. For instance, when it comes to minor offenses, blacks are some fifteen times more likely than whites to be arrested or receive a citation—both of which may show up in a criminal background check. Paul-Emile, “Beyond Title VII,” 896; Council on Crime and Justice, Low Level Offenses in Minneapolis: An Analysis of Arrests and their Outcomes (2004), 4.

  And criminal records are also used to: Jeremy Travis, Amy L. Solomon, and Michelle Waul, From Prison to Home: The Dimensions and Consequences of Prisoner Reentry (Washington, DC: Urban Institute, 2001), 40.

  The problem is that although a person’s: Alfred Blumstein and Kiminori Nakamura, “ ‘Redemption’ in an Era of Widespread Criminal Background Checks,” NIJ Journal 263 (2009): 13, https://www.ncjrs.gov/pdffiles1​/nij/226872.pdf.

  Across a range of offenses, experts have tracked: “Written Testimony for Amy Solomon Senior Advisor to the Assistant Attorney General Office of Justice Programs, U.S. Department of Justice,” U.S. Equal Employment Opportunity Commission, July 26, 2011, http://www.eeoc.gov/​eeoc/meetings​/7-26-11/solomon.cfm; Blumstein and Nakamura, ‘Redemption,’ 10, 13.

  Eliminating the sharp, adversarial divisions: Others, inside and outside legal academia, have raised similar questions. See, e.g., David Eagleman, “The Brain on Trial,” The Atlantic, June 7, 2011, http://www.theatlantic.com/​magazine​/archive​/2011/07/the-brain-on-trial/308520/?single_page=true; David Eagleman, Incognito: The Secret Lives of the Brain (New York: Vintage, 2011).

  We’re told that horrible acts reflect: Barbara H. Fried, “Beyond Blame,” Boston Review, June 28, 2013, http://www.bostonreview.net/​forum/barbara​-fried-beyond-blame-moral-responsibility-philosophy-law.

  But that just doesn’t mesh with: Free will, as we have always thought of it, is a fantasy. Martha Farah, “Neuroethics: The Practical and the Philosophical,” Trends in Cognitive Sciences 9 (2005): 37–38. The scientific evidence suggests that there is no independent causal agent that directs our actions: the neural activity that drives all behavior, including criminal actions, is ultimately determined entirely from genetic and environmental interactions over which we have no conscious control. Thomas Nadelhoffer and Walter Sinnot-Armstrong, “Neurolaw and Neuroprediction: Potential Promises and Perils,” Philosophy Compass 7 (2012): 634–35. It is worth noting that there are a number of different conceptions of free will and I am focused on what is referred to as an “incompatibilist” view that assumes that the ultimate source or origin of a person’s action is her own freely made choices and that determinism is false. Randolph Clarke and Justin Capes, “Incompatibilist (Nondeterministic) Theories of Free Will,” Stanford Encyclopedia of Philosophy, August 17, 2000, http://plato.stanford.edu/​entries/​incompatibilism-​theories/; Cory J. Clark et al., “Free to Punish: A Motivated Account of Free Will Belief,” Journal of Personality and Social Psychology 106 (2014): 509.

  It is not a coincidence that roughly: Roughly 15 percent of prisoners experience delusions, hallucinations, and other psychotic symptoms. Fried, “Beyond Blame.”

  It is not a coincidence that those: Fried, “Beyond Blame.”

  We can start by acknowledging that: Fried, “Beyond Blame.”

  The idea that if we stopped: Gideon Rosen, “Beyond Blame,” Boston Review, July 10, 2013, http://www.bostonreview.net/​forum/beyond-blame/gideon​-rosen-blame​-necessary-law. It is true that, all things being equal, when we move away from believing in free will and having a system grounded in blameworthiness, there is a danger that people will actually commit more crimes. Research shows that reducing free-will beliefs can result in more dishonest behavior, more aggression, and less pro-social behavior. Clark et al., “Free to Punish: A Motivated Account of Free Will Belief,” 502; Kathleen D. Vohs and Jonathon Schooler, “The Value of Believing in Free Will: Encouraging a Belief in Determinism Increases Cheating,” Psychological Science 19 (2008): 49–54, doi: 10.1111/j.1467-9280.2008.02045.x; Roy F. Baumeister, E. J. Masicampo, and C. Nathan DeWall, “Prosocial Benefits of Feeling Free: Disbelief in Free Will Increases Aggression and Reduces Helpfulness,” Personality and Social Psychology Bulletin, 35 (2009): 260–68, doi: 10.1177/0146167208327217; Tyler F. Stillman and Roy F. Baumeister, “Guilty, Free, and Wise: Belief in Free Will Facilitates Learning from Self-Conscious Emotions,” Journal of Experimental Social Psychology 46 (2010): 951–60, doi: 10.1016/j.jesp.2010.05.012. But all things need not be equal: indeed, as we will discuss, we can replace these concepts with an approach that is likely to yield net crime-reduction benefits.

  In the early twentieth century: In re Devon T., 584 A.2d 1287, 1291 (Md. Ct. Spec. App. 1991).

  The moral responsibility of the child: In re Devon T., 584 A.2d at 1291.

  Unfortunately, in the intervening decades: In re Devon T., 584 A.2d at 1292.

  In response to the failure of our: David DeMatteo et al., “Community-Based Al
ternatives for Justice-Involved Individuals with Severe Mental Illness: Diversion, Problem-Solving Courts, and Reentry,” Journal of Criminal Justice 41 (2013): 64.

  One of the most notable developments: DeMatteo et al., “Community-Based Alternatives,” 66; David DeMatteo et al., “Treatment Models for Clients Diverted or Mandated into Drug Treatment,” in Addictions: A Comprehensive Guidebook, eds. Barbara S. McCrady and Elizabeth E. Epstein, ed. 2 (New York: Oxford University Press, 2013), 553. It is important to note that there are a number of community-based alternatives that may divert the offender from the normal criminal justice process at various points along the way, from the moment that he encounters law enforcement to just before trial to the time he is about to be released. DeMatteo et al., “Community-Based Alternatives,” 65. For example, a police officer encountering an individual who has committed a low-level offense could divert that person toward mental-health treatment instead of arresting him. DeMatteo et al., “Community-Based Alternatives,” 65. As with problem-solving courts, research suggests that officers specifically trained in handling those with mental illness and in making use of community behavioral health services enjoy better outcomes. DeMatteo et al., “Community-Based Alternatives,” 66; H. Steadman and M. Naples, “Assessing the Effectiveness of Jail Diversion Programs for Persons with Serious Mental Illness and Co-Occurring Substance Use Disorders,” Behavioral Sciences and the Law 23 (2005): 163–70.

  The underlying theory is that you cannot: There has been a realization, for example, that drugs play a special role in shaping crime and any corrections approach that ignores that role is doomed to failure. Four out of five of those locked up at the state and federal level are there for a substance-abuse–related offense—using or selling, committing a crime to get money in order to buy, under the influence while acting—or have a clear history of alcohol or drug problems. DeMatteo et al., “Treatment Models,” 551. Drugs are implicated in roughly half of all violent crimes and domestic abuse crimes. DeMatteo et al., “Treatment Models,” 551. And those who have previously abused drugs are not only more likely to use drugs in the future but also more likely to be rearrested: at the state level, 95 percent of inmates with drug histories return to using within three years and 68 percent are rearrested. DeMatteo et al., “Treatment Models,” 552; Steven S. Martin et. al., “Three-Year Outcomes of Therapeutic Community Treatment for Drug Involved Offenders in Delaware,” Prison Journal 79 (1999): 194–320; Patrick A. Langan and David J. Levin, U.S. Department of Justice, Recidivism of Prisoners Released in 1994 (Washington, DC: Bureau of Justice Statistics, 2002), http://www.bjs.gov/​content/pub/​pdf/rpr94.pdf; DeMatteo et al., “Community-Based Alternatives,” 65.