The science of injustice

Following the recent cases of police brutality toward black Americans, we all should be worried about unfairness in the criminal justice system. Racism is evident not only in everyday police practices, but also in criminal investigation, prosecutorial discretion, jury verdicts, and sentencing. And the perceived unfairness is not limited to treatment of minorities—hence the joke, “A conservative is a liberal who has been mugged; a liberal is a conservative who has been arrested.” Although judges and lawyers are familiar with the shortcomings of our criminal justice processes, Drexel University law professor Adam Benforado wrote Unfair because “most people don’t know what’s really going on” and need “to confront the hidden unfairness.”

For Benforado, the path back to fairness and justice is not simply to become aware of the things that regularly go wrong in the legal system. He wants us to understand the source of the perennial failures of criminal law and thus why so many reform efforts fail. Unfair does have an encyclopedic aspect to it—in story after story Benforado identifies harms caused by the common mistakes of police, prosecutors, judges, juries, eyewitnesses, expert witnesses, and prison administrators. But the point is more than to reveal these injustices.

Many of us assume that existing procedural safeguards and punishment techniques are fine except for occasional cases of “lying cops, lazy investigators, corrupt judges, biased witnesses, and self-aggrandizing lawyers.” However,  Benforado contends that injustice “is built into our legal structures,” and “its origins lie . . . within the mind of each and every one of us.” He is arguing here against the Enlightenment view that we are rational beings in control of our thoughts and beliefs.