Imagine if your doctor approached your complaint of chest pains with a conception of the human body from two or three hundred years ago. That’s essentially what police officers, jurors, and judges do every day when it comes to diagnosing whether someone is lying or a memory is accurate or a person deserves jail time. Much of our legal system is based on unsupported gut intuitions about how human beings behave that have been around for generations.
No one questions the wisdom of researchers’ developing new, more effective medicines. But the law seems different. The unstated assumption is that those who wrote our codes and shaped our institutions of criminal justice were somehow more enlightened than we are today.
The consequences of that mind-set are devastating. Operating on incorrect models of behavior, we end up training our detectives in interrogation techniques that lead to false confessions and employing identification procedures that contaminate witnesses’ memories. We convince judges and jurors that being objective is a choice, when numerous biases operate beyond our conscious awareness or control. We purport to execute only those who most deserve it, but walk down death row and you won’t see the worst of the worst. You’ll see people with ineffective lawyers; you’ll see a disproportionate number of people who just happen to have darker skin and thicker lips; you’ll see innocent people — one out of 25 by the best estimate.
Our approach to criminal justice is failing us.
The good news is that we possess the tools to make meaningful changes in our police, courtroom, and correctional practices. Insights from psychology and neuroscience are allowing us to develop a more realistic understanding of how witnesses, detectives, and others think and act. Even if our legal founders were better angels, they did not have the methods of modern science to test hypotheses, the ability to collect and analyze real-world data, and the capacity to restructure existing frameworks broadly, rapidly, and effectively.
We can make numerous empirically grounded changes right now. If the color of a person’s skin influences where bail is set, as the latest research suggests, we should consider blind bail hearings, much as orchestras do to avoid similar bias in auditions. If prosecutors are susceptible to forces that encourage dishonesty, and routinely fail to turn over evidence of innocence, we should bypass them and have crime-lab reports sent directly to the defense. If police officers subtly influence witnesses, we should adopt computer-administered lineups.
But embracing an evidence-based approach to justice also implies a more fundamental realignment of our legal system: reconceiving the fight against crime in public-health terms.
The more insight we gain into the genetic and environmental influences on criminal behavior, the more a disease model seems appropriate, and the harder it is to justify a world in which bad acts are assumed to reflect the freely made choices of evil people and offenders are treated with scorn.
Every year, we learn more about the role of toxic substances and nutritional deficiencies in cognitive dysfunction linked to criminal behavior. It is not a coincidence that more than half of those in prison have had a traumatic brain injury and nearly a quarter of the correctional population suffers from severe mental illness. It is not a coincidence that those who are incarcerated are disproportionately uneducated, poor, and survivors of childhood abuse and neglect.
And while we already acknowledge that some harmful acts are not the product of free will — the man whose sudden seizure causes him to drop his baby cannot be said to have chosen to assault his child — the lines we draw between compelled behavior and intentional conduct are a convenient fiction. They simply reflect the divide between the unmistakable, documented influences on human actions and the determinants that remain hidden. The fact that it is very difficult to figure out the particular nexus of factors that led a person to pull that trigger, kick in that back door, or write that bad check does not mean that he freely chose to commit a crime.
We need to quit wasting time trying to sort out who deserves blame and get out of the payback business. Instead, we should focus on remedying the harm, rehabilitating the criminal, discouraging others from taking similar actions, and treating the conditions that precipitated the crime in the first place.
This may sound revolutionary, but it’s really not so different from how we handle outbreaks of disease. When a dangerous virus overwhelms a town, causation is relevant, but blame isn’t. We don’t treat someone who has contracted Ebola or dengue fever as sinful. We get to work restoring the person’s health, preventing new cases, and trying to eliminate root causes. When an individual poses a particular threat to the public, we quarantine him until he’s no longer a danger, but we don’t subject him to poor treatment and contempt on the grounds that he is a wicked person who deserves it.
Other countries are already showing us the path forward. The penal systems of Germany and the Netherlands are organized around resocialization and rehabilitation. Prisoners are treated with dignity and have their rights to vote, work, and receive benefits restored when they are released — things they need to become productive citizens.
In Norway’s Halden prison, inmates — including rapists and murderers — are locked in their cells only in the evening and spend their days working, studying, cooking, exercising, or playing music. Rather than being denied positive human contact as punishment, they are encouraged to maintain their family connections. And the staff members at Halden act as mentors, not enforcers, helping prisoners to overcome their problems and prepare to reintegrate back into society. The logic is simple: Place people in monstrous conditions, and you’ll create monsters.
In the United States, we can catch a glimpse of the public-health model at work in the form of problem-solving courts, which have been around since the 1990s and which explicitly reject harsh punishment in favor of focused treatment for underlying problems like mental illness and drug abuse. The key stakeholders — prosecutors, defense attorneys, judges, and offenders — are not cast as adversaries, but as partners, working together to develop a path forward. And the results seem clear: reduced recidivism and reduced cost.
Abandoning blame as an organizing principle also frees us to focus on the needs of those harmed by crimes, who have long been shunted to the side of the criminal-justice process and treated as mere props in the effort to gain a conviction. Helping victims to heal should be a central aim of our system. In some cases, that may mean facilitating apologies and aiding victims in forgiving those who have committed crimes against them. Recent research suggests that such actions can be far more effective at repairing the harm than retributive punishment of the offender. In fact, granting forgiveness may provide a victim with a heightened sense of justice, as well as improved psychological well-being. In other cases, catering to a victim’s needs may mean figuring out how the perpetrator can provide restitution. Even if offenders are not treated as blameworthy, they ought to mitigate the impact of what they’ve done.
Most important, a public-health model of crime allows us to shift resources from punishment to prevention. A reactive criminal-justice system, like the one we have now, is doomed to always come up short. There is no execution that can compensate for a victim’s murder. There is no appeal process that can restore the lost years of a wrongful conviction. In the future, our major tools for fighting crime will not be police officers, trials, and incarceration, but better prenatal intervention, improved schools, and widely available mental-health care. That will make for duller episodes of Law & Order, but it will leave us far safer and more just.
Author Bio: Adam Benforado is an associate professor of law at Drexel University. He is the author of Unfair: The New Science of Criminal Injustice (Crown, 2015).