## Metadata - Author: [[Adam Benforado]] - Full Title: Unfair - Category: #books ## Highlights - We have been lulled into thinking that discarding the rack and the back-room brute was enough. But all we have done is change the form of our coercion. The wounds and scars are now hidden, which leaves us in a far more precarious position. How do we spot a coerced confession when there are no bruises or welts? How do we know to sound the alarm bell when no one wears the torturer’s cowl or beats out a confession, innocence be damned? ([Location 885](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=885)) - Having purged explicit, open physiognomy, we remain closet physiognomists, unaware that we are appraising a person based on the color of his skin, the thickness of his lips, or his uneven ears. That these assessments are implicit makes them all the more destructive. Working toward an objective and falsifiable system of classification, Lombroso and Galton put their claims into the public domain for inspection, testing, and appraisal. Our judgments, by contrast, are subjective and rarely scrutinized. ([Location 1039](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1039)) - By imagining most criminals as autonomous, rational actors deciding to pursue greedy, lustful, or hateful ends, we underestimate the significance of forces in the world around us and dynamics in our brains over which we have little control. ([Location 1055](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1055)) - The evidence related to traumatic brain injuries is similarly stark: while less than 9 percent of those outside of prison have experienced such trauma, roughly 60 percent of those in prison have had at least one such injury. ([Location 1109](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1109)) - The amygdala, for instance, is thought to play an important role in regulating aggression. Neuroscientists have identified this area as critical for understanding the beliefs, intents, desires, and emotions of others. When it is not functioning properly, a person may be at an increased risk of committing violence, because it is the ability to appreciate the shock, fear, and distress of others that helps prevent us from harming people. ([Location 1129](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1129)) - Television shows and movies lead us to regard psychopaths either as pure evil (think Michael Myers in the Halloween slasher films) or as hyper-rational actors who simply choose to do horrible things (think Hannibal Lecter), but the science offers a very different explanation for their behavior: they have abnormal brains that leave them without critical tools that the rest of us take for granted. As we’ll explore later, we are reluctant to embrace this biological account because it makes it harder for us to justify our harsh treatment of criminals. But it’s what the best evidence suggests. ([Location 1149](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1149)) - Back in 1963, in the case of Brady v. Maryland, the Supreme Court made clear that prosecutors must turn over evidence that is favorable to the defendant and material to issues of guilt or punishment. Failing to do so—in common parlance, committing a Brady violation—is a contravention of the constitutional right to due process. ([Location 1383](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1383)) - Note, too, that omissions and commissions are viewed differently. It is easier to see the harm in a commission (the hypothetical prosecutor bribing a juror) than in an omission (Deegan failing to turn over the lab report). An omission does not seem to upset the “natural” course of things, whereas a commission seems to steer events onto a different path. And omissions tend to be more readily justified because there are almost always benign reasons for not doing something: “I didn’t understand it was my responsibility,” “No one told me,” or simply “I forgot.” So, the fact that Brady violations involve a prosecutor not doing something that she is supposed to do may make them particularly likely to occur. Other common types of prosecutorial misconduct involve omissions as well: for example, failing to alert the court when you know your witness is lying on the stand, or turning a blind eye to a law enforcement officer concealing or destroying evidence. ([Location 1522](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1522)) - If our boss made us do it, we are not responsible for what happened. Attorneys in the criminal justice system are often acting at the behest of another: an assistant D.A. will be very aware that he is working for the D.A., just as a public defender will be aware that it is his client who ultimately calls the shots. As a result, the establishment of rigid hierarchies and chains of command may provide a sturdy ladder for misconduct. ([Location 1531](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1531)) - Another way we manage to justify bending the rules is through social comparison. Of the dishonesty I’ve witnessed in my life, it’s uncanny how many of the incidents involved groups of people rather than lone individuals. One person crossed the line and then suddenly three others were right there with him. Being in a group seems to alter people’s moral compasses, aligning the dials and leading people who would otherwise act ethically toward trouble. Researchers have begun to look more deeply at this seemingly infectious aspect of dishonesty. Rather than viewing our behavior in absolute terms (“Is it moral or immoral to cheat on this test?”), we measure our actions against those of people around us (“Are my best friends sharing answers on the exam?”). ([Location 1535](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1535)) - Clearly, we take cues for our moral actions from those around us. But we also take cues from our own past behavior. This explains, in part, how we can start with a very minor act of dishonesty and gradually shift to more serious transgressions over time. ([Location 1585](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1585)) - scientists have also shown that greater dishonesty can be induced by simply altering a person’s moral self-view. In one of my favorite experiments, researchers had participants take a test while wearing sunglasses that they were told were either genuine designer models or counterfeits. You might expect that the fake shades would make no difference at all, but in fact the percentage of people cheating more than doubled in the counterfeit condition. According to the researchers, the participants wearing the counterfeit glasses suddenly saw themselves in a new light: with the badge of dishonesty on their face, it was easier to cheat. And they also viewed their peers differently, predicting a significantly higher rate of cheating than did the people wearing “authentic” sunglasses. ([Location 1591](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1591)) - As improbable as it sounds, one of the most effective ways to rationalize our ethical lapses involves reframing our bad actions as good—a means of restoring order or serving justice. A wrong committed to remedy a wrong can become a right. Indeed, research suggests that a major driver of dishonest behavior is a desire to even the scales. In one experiment, scientists looked at what would happen when a customer was treated rudely by a coffee shop employee and then given back more change than he or she deserved by the same employee. What they found was that people who were mistreated kept the money at a much higher rate than those who had not been mistreated. Customers on the receiving end of rudeness seemed to have been given a great excuse to justify keeping the shop’s money. ([Location 1607](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1607)) - It is likely that lawyers who feel that the other side has been given an unfair advantage by a judge (for instance, after a motion has been denied or evidence has been kept from a jury), or who believe that attorneys across the aisle are using underhanded tactics, are more inclined to engage in dishonest acts. The chip on your shoulder can be both a motivation and a justification for bending the rules in your favor. And that’s true even where the perceived imbalance does not come from anything that the opposing attorneys or the judge has done. For a prosecutor, the chip may simply be a feeling that she is at a disadvantage because she has to work particularly long, grueling hours at lower pay than lawyers in the private sector or has an unreasonable boss or didn’t go to a fancy law school. We might also imagine a new attorney feeling that she is a step or two behind other prosecutors in the office and concluding that she just needs to cheat a little bit until she catches up. ([Location 1614](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1614)) - Along similar lines, one way to convince ourselves of the righteousness of our actions is to disparage the person we’re lying to or cheating. If we are hurting someone who is himself in moral disrepute, our actions suddenly become more justifiable. And it’s particularly easy to see ourselves as serving moral ends when the victim has already been arrested and charged with a crime. ([Location 1623](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1623)) - People who work for nonprofit foundations, schools, or other public benefit organizations may be relatively more inclined to bend the rules because the charge of enhancing social welfare seems to justify the dishonest behavior. ([Location 1637](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1637)) - This research suggests that we ought to install moral reminders for lawyers that help interrupt the process of rationalization and self-justification that occurs in moments of temptation. One idea might be to have prosecutors recite an oath—or write down what they believe their particular moral or ethical responsibilities to be—prior to the proceedings each day of trial. Likewise, to encourage attorneys to turn over exculpatory evidence to the defense team, we could ask prosecutors not only to sign a statement promising that they had complied with their Brady duties, but also to articulate in a few sentences why refusing to turn over such material is immoral. As scientists have discovered, the key is making the reminders a regular part of the process without having them become so routine that they’re invisible. ([Location 1723](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=1723)) - each year in America some 77,000 people are charged with crimes after being identified by eyewitnesses in police lineups. ([Location 2104](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=2104)) - Researchers have also shown that our memories can be affected by mental or physical stress. It’s difficult to simulate the fear and anxiety associated with being the victim of a real crime, but scientists have gotten creative, drawing upon other experiences that may generate similar feelings. In one study, for example, participants were taken on the “Horror Labyrinth” tour of the London Dungeon, in which they passed through a dark maze with a screaming skeleton, frightening music, disorienting mirrors, and an actor in a dark robe who blocked the path of visitors. Participants who did not find the experience distressing were more than four times better at identifying the actor out of a nine-person lineup than those who reported high levels of anxiety and had increased heart rates. ([Location 2224](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=2224)) - There is substantial evidence that people regularly confuse individuals in their memories, in part because they lose track of the source of a recollection. The process of retrieving memories, remember, is a constructive process: sometimes we cut out someone’s face or body and paste it into a completely different setting. This unconscious transference can arise without any police intervention at all; a witness might point the finger at someone who was merely a bystander at the scene of the crime, or someone who worked at the McDonald’s where the witness ate that morning. In fact, there is some evidence that merely seeing a person’s image previously on a social media site can corrupt an identification procedure. ([Location 2297](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=2297)) - We need to start thinking about witness mistakes in the way that we think about other types of errors that individuals, groups, and institutions make. As I mentioned, studies of actual police lineups show that eyewitnesses select innocent people more than 30 percent of the time. Would we as a society tolerate the sale of a car whose brake lights malfunctioned on every third trip, or a hospital that handed out the wrong medicine to every third patient? Obviously not; we would demand immediate change. ([Location 2405](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=2405)) - One of the reasons that the cognitive interview is so successful is that it goes to great lengths to preserve a witness’s original memory, rigorously avoiding suggestive questioning and discouraging witnesses from guessing. The benefits of that approach suggest that we need to fundamentally rethink how we handle eyewitness evidence. A memory of the perpetrator’s face is just as susceptible to adulteration and misuse as a hair sample or partial fingerprint taken from a crime scene, but we don’t treat it that way. We don’t worry that it will get corrupted or lost or misreported. We don’t subject it to careful monitoring or objective assessment. That needs to change. ([Location 2442](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=2442)) - We have all had a lifetime of practice in detecting lies. Think of how many times a day you get to hone your skills: Did your son actually brush his teeth? Does the mechanic really need to replace your brakes? Does your spouse really mean she’s sorry? Is your student’s grandmother actually sick? We assume that the result of all of these encounters is that, by adulthood, most of us have developed finely calibrated instruments for catching lies both big and small. When it comes to assessing truthfulness, we are experts. ([Location 2544](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=2544)) - Ironically, contrary to the assumptions of many courts, the blind may often be in a better position to assess truthfulness than jurors focused intently on body language, because they are less likely to be misled by downward stares and shaky limbs. ([Location 2622](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=2622)) - Some two hundred years later, in 1923, William Marston would attempt to bring results from his lie detector—which measured changes in systolic blood pressure—into an actual criminal proceeding. Like Defoe, Marston pursued endeavors in both fact and fiction—a coincidence, no doubt, but a fitting one, for Marston’s “systolic blood pressure deception test” was almost as fanciful as the magic lasso that his comic-book character, Wonder Woman, wrapped around villains to force them to speak the truth. ([Location 2647](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=2647)) - The court ultimately refused to allow Marston to testify as an expert, on the grounds that his lie-detector method had not been generally accepted by the broader scientific community. But his efforts laid critical groundwork for the first modern polygraph, which measured a subject’s pulse, blood pressure, and breathing. And it was Frye’s case that established the standard for the admissibility of expert testimony in the United States for the next several decades and, in some states, to this day. ([Location 2652](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=2652)) - That’s equally true for police officers, lawyers, jurors, and witnesses: we need to get all of our key legal actors in the business of second-guessing themselves. That sounds strange, but doubt isn’t the enemy of justice—blind certainty is. And, in most cases, healthy skepticism isn’t going to develop on its own because there are so many forces pulling the other way. ([Location 3238](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=3238)) - Was it Roger’s purpose to kill Charles, or was he attempting to fell a tree when the ax accidentally slipped from his hand? The prudence of asking these questions seems obvious to us today. As the esteemed judge Oliver Wendell Holmes once wrote, “Even a dog distinguishes between being stumbled over and being kicked.” ([Location 3428](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=3428)) - At a time when the president of the United States had no running water in the White House, prisoners at Eastern Penitentiary had flush toilets and central heating. The modern prison had arrived. ([Location 3714](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=3714)) - America accounts for less than 5 percent of the world’s population, but almost a quarter of all prisoners. Some 2.3 million individuals are behind bars across the country, and in excess of 6 million are under “correctional supervision”—more, by far, than in any other nation. Even at their height, the Gulag labor camps never came close to the number of our citizens currently on probation, in jail or prison, or on parole. Take one hundred thousand Americans, and 707 of them are languishing in a cell. By contrast, 284 out of every hundred thousand Iranians are locked up, 118 out of every hundred thousand Canadians, and only 78 out of every hundred thousand Germans. ([Location 3718](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=3718)) - A country that abolished slavery 150 years ago now has a greater number of black men in the correctional system than there were slaves in 1850 and a greater percentage of its black population in jail than was imprisoned in apartheid South Africa. ([Location 3725](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=3725)) - Although there are many factors behind America’s high incarceration rates, the ever-expanding list of criminal violations and the harshness of our sentencing are front and center. When Illinois’s criminal code was updated in 1961, it was 72 pages, but by 2000 it had grown to 1,200 pages. ([Location 3728](https://readwise.io/to_kindle?action=open&asin=B00NRQW7LY&location=3728))