The (Shockingly Simple) (Game-Changing) (Absolutely Essential) Formula for Criminal Justice Reform

This is the rarest of moments. We have a genuine chance to set our criminal justice system on the right path. There is media coverage, popular energy, and bipartisan interest. And, in all likelihood, we’re going to blow it.

In the face of immense suffering and unfairness, we’re going to rearrange the deck chairs. We’ll feel bold and courageous, confident we’ve charted an entirely new course to safety, equality, righteousness. But the iceberg will remain.

It’s not that reducing sentences for nonviolent drug offenders and eliminating the use of solitary confinement for juveniles aren’t worthy goals. They are. They will have a positive effect on real people’s lives. But they are ultimately minor corrections. They will not make our system just.

To do that, we must fundamentally change our approach and commit ourselves to evidence-based justice.

The formula is beguilingly simple:

  1. Collect and analyze data.
  2. Adopt empirically-grounded best practices.
  3. Repeat.

Given that evidence-based approaches are widely accepted in other fields, like medicine and business, you might assume that our legal system already follows this protocol. But that’s far from the truth.

Much of what happens in police departments, prosecutors’ offices, courtrooms, and prisons is based on untested — and frequently incorrect — myths about human behavior.

Research from psychology and neuroscience shows that many of our core assumptions about judges, jurors, witnesses, cops, lawyers, and criminals are wrong.

We assume that an innocent person would never admit to a murder unless he was being tortured. But exoneration data reveals that false confessions are the leading contributor to wrongful homicide convictions. Experiments suggest that they are not random occurrences, but the predicable consequence of the most widely used interrogation technique in the United States.

We assume that when an eyewitness gets on the stand and says that she is sure that the defendant is the man that raped her, we have the right guy. But one-third of the time, when someone picks a suspect out of a real lineup, she chooses an innocent filler. And in-court identifications, months after an incident, are often worthless because the witness has already seen the defendant previously in a photo array or lineup, and there is no way to know the true source of her recollection.

We assume that reading body language is the key to detecting deceit, so we instruct jurors to focus on the demeanor of witnesses in assessing their credibility. But a wealth of data shows that you can’t sort out the liars based on jittery limbs and averted gaze.

We assume that doctrine determines legal outcomes, so we drill law students in the black letter law. But the particular provisions in the legal code are often irrelevant; what matters are the backgrounds and experiences of the jurors and judges.

We assume that to best deter a would-be offender, we should just add years onto his potential sentence. But research shows that harsh penalty enhancements are largely ineffective. Criminals aren’t rational actors.

Across our justice system, we are so certain that we are right — and that we have been for centuries — that we don’t check to see if we actually are.

We need to face up to how perverse that is.

Imagine going to a hospital where antiseptic practices were little changed from the 18th century. Imagine having your cardiologist make a diagnosis without actually examining your heart. Imagine your surgeon attempting a procedure that his gut told him was effective, but had never been scientifically validated.

That alternate world seems horrifying. Of course pharmaceuticals, surgical interventions, and medical practices should be carefully studied for effectiveness. When better ways of doing things are discovered, they should be changed. That’s how you improve health outcomes. That’s how you advance.

Does the law somehow operate on different principles? That’s doubtful. The reason that the law has resisted progress while medicine has embraced it is that we mistakenly believe that our legal structures are impervious to improvement. And we’ve confused the merits of preserving our core values with the merits of preserving the means of achieving those core values. That’s led to a bizarre situation in which we staunchly defend practices that undermine the values they were meant to protect. The voir dire process of selecting a jury, for example, was created for the purpose of removing hidden bias; today, it’s used by savvy lawyers and trial consultants to create as biased a jury as possible.

There are risks to changing approaches that we’ve relied on for decades or longer, but there are also risks — often much graver ones— to sticking with approaches that we know fail us regularly. That’s true in medicine, and that’s true in law.

So, if one accepts the merits of evidence-based justice, what does it look like in practice?

Take the problem of judicial bias. We are told that judicial bias just comes down to choice: Most judges decide to be objective umpires, but a few bad apples elect to be corrupt, activist, or racist. Existing evidence from psychology suggests that’s incorrect: All judges appear to carry biases, often beyond their conscious awareness or control. Adopting an evidence-based approach means taking that initial research seriously and committing ourselves to tracking judicial outcomes broadly. We need to know whether black people are given higher bails. We need to know whether prisoners are more likely to be granted parole first thing in the morning as compared to right before lunch. If we don’t monitor judicial behavior at this level, we won’t see the disparate results.

An evidence-based approach also entails running controlled experiments both to document problematic judicial decision-making and to test out de-biasing techniques. Some biases can be addressed simply by educating judges about their presence, others require focused training, and still others necessitate removing judicial discretion altogether. For instance, if implicit racial bias leads judges to set bail higher for African-Americans, we could institute bail hearings in which the judge is blocked from knowing the race of the defendant (much like orchestras now use blind auditions to avoid implicit gender bias), or we could eliminate bail for most offenses in favor of greater electronic monitoring.

What’s off the table is sticking with the status quo, which assumes that a judicial code of ethics instructing judges not to act partially is sufficient.

The search for better practices never stops. After instituting any reform, it’s critical to continue to collect data to see the impact and make necessary adjustments.

Is all of this politically feasible?

Absolutely — in large part because resulting reforms aren’t the product of ideological design and don’t draw their legitimacy from a particular agenda. Evidence-based justice is grounded in broadly held norms: most notably, the notion that our laws and practices should do what they say they do and work the way they say they work. That’s something that most all Americans can get behind.

Who wants to pour tax dollars down the drain on programs that aren’t effective? Who wants to see innocent people convicted? Who is rooting for mistreatment and unfairness?

No one, which raises a final question: Is evidence-based justice really a radical idea, or is it just common sense? Revolutionary change doesn’t require revolution. It doesn’t require blood in the streets. It doesn’t require burning everything to the ground. It can be mundane. But it won’t happen unless we choose to act.

To learn more about the hidden biases corrupting our legal system, pick up a copy of my new book, Unfair: The New Science of Criminal Injustice.

Unfair is available for purchase at Amazon, Barnes & Noble, Indie Bound, Google Books, iBooks, and Audible.

Law prof + author of UNFAIR. My research is at the nexus of law, psychology, + neuroscience. But I write about art, literature, film, + sport, too.

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