Unfair: The New Science of Criminal Injustice

Adam Benforado

Jun 2015 · Sold by Crown

About this ebook

NEW YORK TIMES BESTSELLER • “Unfair succinctly and persuasively recounts cutting-edge research testifying to the faulty and inaccurate procedures that underpin virtually all aspects of our criminal justice system, illustrating many with case studies.”—The Boston Globe
 
A child is gunned down by a police officer; an investigator ignores critical clues in a case; an innocent man confesses to a crime he did not commit; a jury acquits a killer. The evidence is all around us: Our system of justice is fundamentally broken.
 
But it’s not for the reasons we tend to think, as law professor Adam Benforado argues in this eye-opening, galvanizing book. Even if the system operated exactly as it was designed to, we would still end up with wrongful convictions, trampled rights, and unequal treatment. This is because the roots of injustice lie not inside the dark hearts of racist police officers or dishonest prosecutors, but within the minds of each and every one of us.
 
This is difficult to accept. Our nation is founded on the idea that the law is impartial, that legal cases are won or lost on the basis of evidence, careful reasoning and nuanced argument. But they may, in fact, turn on the camera angle of a defendant’s taped confession, the number of photos in a mug shot book, or a simple word choice during a cross-examination. In Unfair, Benforado shines a light on this troubling new field of research, showing, for example, that people with certain facial features receive longer sentences and that judges are far more likely to grant parole first thing in the morning.
 
Over the last two decades, psychologists and neuroscientists have uncovered many cognitive forces that operate beyond our conscious awareness. Until we address these hidden biases head-on, Benforado argues, the social inequality we see now will only widen, as powerful players and institutions find ways to exploit the weaknesses of our legal system. 
 
Weaving together historical examples, scientific studies, and compelling court cases—from the border collie put on trial in Kentucky to the five teenagers who falsely confessed in the Central Park Jogger case—Benforado shows how our judicial processes fail to uphold our values and protect society’s weakest members. With clarity and passion, he lays out the scope of the legal system’s dysfunction and proposes a wealth of practical reforms that could prevent injustice and help us achieve true fairness and equality before the law.

Ratings and reviews

I started reading Unfair, by Adam Benforado, fully expecting to dislike it. After all, part of my job is to explain our criminal justice system to students and teachers in grades K-12 and to convince them of its overall fairness (while acknowledging that the system occasionally fails because it is run by fallible human beings); surely Benforado is wrong when he states that, "[e]ven if we quashed all the familiar problems that can derail a case, even if our system operated exactly as it was designed to, we would still end up with wrongful convictions, biased proceedings, trampled rights, and unequal treatment." Contrary to my expectations, however, Unfair turned out to be a fascinating, informative, and enjoyable overview of recent psychological research into issues of perception, hidden bias, memory, and communication and what those insights might indicate when applied to our criminal justice system. In his acknowledgments, Benforado quotes Sir Henry Maine: "Nobody cares about criminal law except theorists and habitual criminals." Taking this warning to heart, Benforado has organized his book in a way which makes sense to non-academics, with chapters devoted to each of the key players in a criminal case: victim, police, suspect, lawyer, jury, witnesses (both eye and expert), judge, prisoner, and the public. This structure at times requires that Benforado repeat some research findings which apply to multiple actors, but such repetition is more than outweighed by the cogency of his arguments. Benforado has also chosen to make his extensive footnotes available on the Internet, rather than including them in the book itself, which is an excellent idea; the notes are easily accessible to scholars and those wishing to dive deeper into the research, but the average reader is neither distracted nor overwhelmed by an abundance of tiny print at the bottom of each page. Those who purchase a print copy of Unfair will also appreciate the savings in both price and back pain; given that the bibliography alone accounts for almost a quarter of the book's 400 pages, I cringe to imagine the expensive behemoth which would have resulted had the footnotes been included in the printed text. The most important factor in my decision to give Unfair 5 stars, though, was that Benforado not only identifies problems with our existing criminal justice system, but also offers concrete solutions, from such relatively minor changes as eliminating peremptory juror challenges or expressly telling eyewitnesses that the perpetrator may or may not be present in a photo array to a complete replacement of our current trials by virtual ones, in which demographic identifiers such as race are suppressed to avoid otherwise hidden biases. As a former trial lawyer, I'm not sure I'm ready to pick my avatar just yet, but Benforado has certainly given me a lot to think about. I received a free copy of Unfair through NetGalley in exchange for an honest review. UPDATE: Relying on some of the same scientific research discussed by Benforado, the Massachusetts Supreme Court ruled on June 25 that "judges must instruct jurors that eyewitnesses may have greater difficulty accurately identifying someone who is not their own race, unless both prosecution and defense agree that it’s not an issue." (Courtesy of The Boston Globe)

Ya, experienced it first hand a couple times.

About the author

Adam Benforado is an associate professor of law at Drexel University. A graduate of Yale College and Harvard Law School, he served as a federal appellate law clerk and an attorney at Jenner & Block. He has published numerous scholarly articles, and his op-eds and essays have appeared in a variety of publications including the Washington Post, the Philadelphia Inquirer, and Legal Times. He lives in Philadelphia with his wife and daughter.