Unfair: The New Science of Criminal Injustice (Reviewed)


Another important read in the all-too-real world of wrongful conviction.

Benforado takes an approach that I haven’t come across yet. He spends a lot of time bringing forward psychological studies and applies them to our criminal justice system. The science behind why our system fails us so often is very closely tied to our human tendency to believe with full conviction that we are capable of setting aside our biases (including hosts of biases and false beliefs that we don’t even know we have) and coming to “the truth.” Our belief that our system can and does offer sufficient safeguards against error gives us an inflated and deceptively cool assurance that we have indeed provided “justice,” when in fact our system is rife with error at practically every level of action: from the police and investigative level, to the prosecution and defense actions prior to trial, to the jury trial (if it occurs at all) and or plea bargaining/sentencing.

See the science behind why false confessions occur, better understand how and why “eye witness” testimony is often contrary and inconsistent with the real events, and learn how police interrogations and “line ups” including photo arrays can often lead to mis-identifications without any mal-intent on behalf of the officers – it’s part of their training.

You’ll see how the problem facing our justice system is systemic and deep, and how it’s not at all a matter of “a few bad apples,” but that even the vast majority of the players on BOTH sides of our legal system (generally good men and women with good intentions) are so caught up behind walls of flawed thinking, biases, prejudices, and “us/them” mentalities, as well as many other hurdles to the truth, that they so often fly far afield from actual justice.

These erroneous systemic modes of thought have allowed the justice system to become a big chess game: one where those with money and influence (and light skin, generally) are victorious, and those without money, those marginalized by society (and generally dark skinned) fall prey to the massive wheels of “due process.”

Benforado, in the latter sections of the book, offers some examples of alternative systems that could function as paradigm shifts for our judicial process. I will say that some of them are quite radical, but I can’t say that he’s wrong just because they’re so adverse to what I have grown up with and known as an American in the modern generation. He makes a lot of comparisons to judicial systems in Germany and in Norway – systems that focus not on punishing criminals but on rehabilitating them. These are systems that foster human connection, where criminals are still closely tied to their families so that they don’t lose the social support network that will help them stay out of prison once they’re released. Many of these ideas are all too easily scoffed at, but I think that the time has come for us to give them a shot in our country. The bottom line is that our system is broken, and doing things the way we always have is not bringing about the change that we need.

One of the more radical ideas (the author even admits as much) is abolishing the in-courtroom trial process completely. Benforado makes the argument that a virtual, literally online, trial process could most effectively negate many of the false belief errors that are rife in our system as it currently stands, and that he highlights at length in the book. So instead of the in-person, all in one room trial that we’re so used to seeing in legal dramas, we would have a trial mediated through a computer interface, so that the jury would be viewing the case forensically. Instead of seeing the actual victim, the jury would be seeing an icon; instead of seeing the jury, the attorneys would be seeing icons; instead of the common misdirections included in court trials, such as the handsomeness or not of the defendant, the racial biases, the class and social biases, even the appeal of the victim – all would be mitigated through a generic interface, leaving the jury to focus on the facts of the case as they are presented via audio, text, video, etc. Note is made of advances in technology – for example, the ability to take a panoramic, 360 degree, fully searchable video of the crime scene, which could be required protocol for all crime scene investigations. This video could be shot immediately after the crime and used throughout the trial, making the facts of the crime scene less susceptible to the faulty memories of those witnesses and/or police officers who will sometimes take the stand months or years later, having to describe the crime scene as they remember it.

It might seem as if this “virtual trial” process is mere fantasy, never to be more than wishful thinking, and I agree that implementing such a change would be nothing short of revolutionary in our country, but it’s important to get the idea out there so that perhaps future generations can move closer to a better system than we currently have  – a system that fails millions every year.


Please read this book, all of you.

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