I’ve been writing for a decade now about America’s broken criminal justice system and the way it is virtually guaranteed to convict innocent people. Kali Holloway does a good job of explaining the science behind why that is, from the way we interrogate suspects to the problems with eyewitness testimony to the absurd uses of forensic science with no evidence to support it.
A national conversation around criminal justice in the United States, a country that jails more of its population than any other country in the world, by percentage and in number, is long overdue. In his new book, Unfair: The New Science Of Criminal Injustice, Drexel University associate professor of law Adam Benforado looks closely at the science at work in our justice system. His research reveals that not only do race and class have a tremendous impact on access to justice, issues such as juror life experience and the fatigue level of parole boards can mean the literal difference between freedom and incarceration — and sometimes, life and death — for those who find themselves caught up in the system.
In an interview on NPR’s Fresh Air, Benforado discussed the heavy emphasis placed on confessions in convictions, despite the fact that they aren’t always reliable evidence of guilt. “[O]ne of the things we know from psychology is that juries place great, great weight in confessions,” says Benforado. “What we also know is that confessions can be a very bad way to convict a person. Sometimes we get it wrong.”
The Innocence Project, which is responsible for more than 330 exonerations, notes that “more than 1 out of 4 people wrongfully convicted but later exonerated by DNA evidence made a false confession or incriminating statement.” Saul Kassin, a professor of psychology at John Jay College of Criminal Justice who has dedicated much of his career to researching false confessions, told Time magazine in a 2013 interview that often, “[o]nce the confession is taken, it trumps everything else…its effects cannot be reversed.”
A significant part of the problem is the way in which confessions are obtained. Benforado says the interrogation process is essentially divided into two parts. In the initial stage, police tend to focus on behaviors that might indicate a suspect is lying. However, the methods for determining deception are rooted in false ideas about body language and the use of leading lines of questioning.
“[Police] bring in the suspect, usually into a small, windowless room, and they ask them some provocative questions meant to reveal deceit,” Benforado explains. “And the problem here is the things that detectives tend to focus on or are told to focus on, which are demeanor elements like jittery limbs or averted gaze, tend to actually be terrible ways to determine whether someone is lying. So quite frequently someone who’s committed a horrible crime will look you straight in the eye and tell you that they’re innocent.”
With this incredibly fallible means of establishing that a person is lying already in place, law enforcement officers move on to what Benforado considers the second stage of the interrogation. “And the focus there is simply on gaining an admission of guilt,” he says. “It’s not primarily about collecting more information, revisiting that possibility that maybe this person didn’t do it. It’s all about getting to that admission that we need. And the techniques that are used here can be roughly summarized as sort of the classic good-cop, bad-cop routine, what’s referred to as maximization and minimization. And we know from laboratory experiments that this can be highly coercive. And the people who are particularly vulnerable tend to be people with low IQs, people who are young, teenagers, people with a history of mental health problems.”
The ACLU points out why mental disability often leads to false confessions. As I wrote in a previous article about death row exonerations, mentally disabled people “are more likely to confess to crimes they didn’t commit in order to appease interrogators. Their limited mental competence makes them less capable of fully comprehending the law and their legal rights…[a]nd they are more easily coerced and bullied.” In a 2004 study of 125 false confessions — the most expansive published research on the issue to date — researchers found that “when suspects falsely confessed and then pled ‘not guilty’ and proceeded to trial, the conviction rate was 81 percent.”
The clear takeaway here is that false confessions of guilt, while not terribly difficult to obtain, can be nearly impossible to undo or erase. The same study found that the overwhelming majority, 89 percent, of false confessions were observed in cases involving rape and/or murder. The prevalence of these sorts of false confessions was attributed to the “strong pressure on police to solve cases involving violent crime.”
And that’s just one single aspect of it. Add to that faulty forensic science, the serious problems with handling eyewitness testimony, the use of drug-sniffing dogs that are wildly inaccurate, the 4th Amendment becoming a dead letter, the use of reasonable suspicion rather than probable cause as a standard for many searches, the implicit bias that leads to massive racial inequities in who is stopped, searched and targeted, the completely failing indigent defense system, prosecutors who overcharge, the 95% rate of plea bargains, and much more, and you have a recipe for a criminal justice system in which justice simply is not possible on a consistent basis.