Unfair Read Free Page A

don’t occur in the normal way, because of, say, a tumor or atraumatic brain injury, a person may lack empathy, or hear voices, or have trouble remembering things.Be born with the wrong set of genes, which lead to the wrong set of electrochemical reactions, and your chances of committing a crime skyrocket. Where do notions of personal volition and blameworthiness fit in?
    Skepticism is critical to building a better legal system, but some of the skepticism about the latest research seems to reflect fear of change and blind faith in the status quo as much as it reflects a careful weighing of the science. We must not be so cautious that we end up tacitly sanctioning a system that rests upon superstition and myth.
    Our judicial system is flexible enough to respond to new developments in the mind sciences that reveal flaws in our laws and processes. There are solutions and remedies within our reach. Some of these solutions, like reconceptualizing which behaviors we punish, are grand and ambitious and must be the focus of long-term efforts. But many others, directed at police training, rules of procedure, courtroom design, and our legal code, can be implemented in the near future. Whether we choose to pursue them will have less to do with our natural limitations and much more to do with the robustness of our commitment to equal justice under the law.
    Are we willing to look into the deep recesses of our brains as we seek to root out unfairness, even if it means learning things about ourselves that we wish were not true—and transforming practices that have been around for centuries?
    Do we care that the path through our system is greased for some and tarred for others, owing to the cognitive biases of police officers, jurors, and judges? Does it matter if certain people are disadvantaged from the outset simply because of the structure of their brain or the shape of their face?
    How troubled are we by the thought that, this very day, men and women are sitting on death row for crimes that they did not commit—one in every twenty-five, by the best estimate?
    The development of DNA testing in the 1980s has given us a glimpse of the problems that beset our justice system. But it is as if we lit a single match in a vast, dark mansion.The dim light has allowed us to see that our criminal process can be horribly flawed—over three hundred people have been exonerated based on genetic mismatches since that time, more than 95 percent of them wrongly condemned as murderers and rapists. “The ghost of the innocent man convicted” is no “unreal dream,” as the esteemed jurist Learned Hand once assured us.
    Yet the magnitude of the crisis is many times larger. Still in the shadows are the vast majority of cases in which potentially exonerating DNA evidence wasn’t available, no good lawyer could be found, or an erroneous conviction just wasn’t worth fighting. Beyond the room in which we stand are the guilty who went free, the victims who were ignored, the prisoners suffering silently, the innocent men pushed up against walls and patted down.There are corridors of injustice we’ve never thought to inspect. And were we to finally descend to the pitch-black basement, we would find the weight of everything above us resting in sand—the key assumptions that our legal system makes about human nature, good and evil, honesty and dishonesty, without much real-world support at all.
    There is no way to appreciate the grievous unfairness in our house of law or fashion a remedy until we understand the human psychology that is driving it. That is the goal of this book. It is time to turn on the lights.

PART I
Investigation

1
THE LABELS WE LIVE BY
The Victim
    Jerry Pritchett had stepped out in the cold January night. It was Friday, a little past nine, and Jerry was wearing his slippers. He was just fetching something from his car. But he paused.
    There, between the bare ginkgo trees, was a pale, gray-haired man flat on his back in the dim light