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January 17, 2019 Article 1

The Unsettling Truth About Our Legal System

What the Mind Sciences Can Teach Teenagers About Criminal Injustice

Adam Benforado

There was a note slipped under our door.  I don’t remember which one of the four of us picked it up: Andy, Nelson, Johannes, or me.  We’ve now scattered: Andy, a lawyer in San Francisco; Johannes, a banker in New York; Nelson, a violinist who seems to be in a different city each week.  But, back then, we were all stuck together in a cramped bunkbed suite that Yale must have been modeled on submarine quarters—four of the hundred sophomore members of Davenport College. 

It was the weekend, a Saturday morning, in December.  It had been warm enough the day before to trick us into thinking that spring had come early.  But it hadn’t.  The winter would be harsh.

The flowers began to pile up at the gate that morning.  People were holding hands that didn’t hold them.  There were red eyes in the dining hall.  It looked just like tragedies do on television.  But these were my friends.  And the dialogue had none of the purposefulness of a scripted show.  Our words were repetitive, unproductive, not moving toward anything, as if each new conversation had to match the last, no more, no less.  No one knew how, but how?  No one knew why, but why?

Suzanne Jovin, 21, bright and beautiful, a senior, one of our own, had been stabbed to death. 

Reading the details, again, almost 20 years later, I am struck by how familiar her last day of life seems.  I often stopped at the store, Krauszer’s, where she likely bought the Fresca they recovered at the crime scene—it was the only place that had them.  I remember well the white pillars of Brewster Hall, where she dropped off a draft of her senior essay that Friday afternoon.  Every day, I walked over the same bricks, flagstones, sidewalks.  How many times did I pass through Phelps Gate or stroll by the Trinity Lutheran Church on Orange Street?  Suzanne had volunteered there in the early part of the evening.  It was the end-of-the-semester pizza party for Best Buddies, an organization that pairs college students with intellectually and developmentally disabled people.  By a little after nine, she was exhausted.  She ran into a classmate on her way to drop off some keys borrowed for the event and told him she was looking forward to a long sleep. 

She never made it to her bed.

It was less than an hour later when the police knocked on the door of the Spanish colonial revival house on the corner of Edgehill and East Rock.  LaJeune Oxley was in the kitchen listening to Bach and when the officer told her that there was a “lady down” just across the street, she had a moment of panic.  “My heart went crazy,” she remembers.  She thought it might be her daughter, Daphne, who had just taken their cairn terrier out for a walk.  She rushed past the cop, out into the street, to the grassy patch where the body lay face down, but when she saw the feet, she held up. 

“I looked at her shoes, low boots, hiking-type shoes, and I knew it wasn’t Daphne.” 

It was a stranger—jeans, boots, a maroon fleece: Suzanne. 

“I didn’t even look for blood.  It did not enter my mind that someone was dead on our street.”  This was, after all, one of the wealthiest and safest neighborhood in the city—a neighborhood of doctors, lawyers, and professors.  There was blood, though, right there, beneath the tree, in the warm night air, two miles from Davenport College. 

Suzanne, the double-major, fluent in four languages, sophisticated, enthusiastic, caring, and loyal, had been stabbed 17 times in her head, neck, and back—the tip of a knife blade broken off in her skull. 

It was the first time I had ever known someone personally who was murdered and it was an awful, rending thing, engendering a wide range of subtle transformations, adjustments, and contractions in my life.  Most notably, it opened a rift between what I’d always been taught and my own experience of the world. 

Like most Americans, I’d largely bought the common story about our justice system.  All victims were equal in the eyes of the law.  Criminals were evil people who freely chose to commit crimes and deserved harsh punishment as a result.  Investigators dispassionately sorted through the evidence, and judges and jurors applied the law objectively to the facts they were given.  The truth emerged through a meritorious clash of prosecutors and defense attorneys.  Bad guys were caught and prisons worked to make us safer.

There had been moments in my earlier teenage years that had challenged the conventional narrative of a fair, logical, and objective criminal justice system.  I’d watched the Rodney King video in disbelief and the riots that followed.  Some of the eighth graders had organized a walkout of our junior high school.  I’d talked about the O.J. verdict with my friends.  But I’d boxed these incidents off, confined them in my memory, as anomalies—exceptions that proved the rule.

Suzanne’s death defied such treatment.  We’d all expected the police would quickly identify the murderer.  We’d learn why Suzanne was attacked.  There’d be a trial and swift justice.  But days and then weeks and then months and then years went by.  The cracks of doubt just seemed to widen, to branch.

Law school provided an opportunity for repair: indeed, in most of my first-year classes, the conventional legal narrative was reinforced.  The house of law was solid, lasting, built by people with incredible wisdom and foresight.  Legal outcomes were determined by the law on the books.  The adversarial system worked.  Human beings acted like rational actors when they entered contracts, weighed the costs and benefits of breaking the law, and decided whether to buy insurance.  Errors were rare; injustices were in the past.

But as I gained more experience and began to look more critically at what I was being taught, the doubt reappeared.  Much of the great edifice of the law—the case holdings, statutes, and guiding legal principles—seemed to rest on untested assumptions.  I started studying psychology and neuroscience—and when I became a law professor, I began running experiments—to understand how real jurors, judges, police officers, and others made decisions and where things went wrong.  The further I progressed in my career, the clearer it became that this scientific account of human behavior did not support the legal one—quite the opposite. 

Justice wasn’t blind at all: black people faced greater police brutality and got longer sentences, more attractive witnesses were more likely to be believed, overweight female defendants were judged more harshly.  Jurors and detectives, tasked with determining credibility, were actually quite poor at detecting deceit and tended to focus on irrelevant cues like averted gaze and jittery limbs.  There was no such thing as an unbiased judge: every member of the bench was looking through lenses tinted by their identities and experiences.  And factors meant to be irrelevant frequently tipped the scales.  People whose parole hearings were first thing in the morning were far more likely to be granted release than those who had the bad luck of being scheduled at the end of the day.  Watching footage of an interrogation with the camera placed behind the suspect meant that you were significantly more likely to deem a resulting confession to be coerced than if you viewed footage shot from behind the interrogator.

If our legal forebears had benefitted from the latest insights from neuroscience, they would never have organized our system around blame, with its prescientific building blocks of free will, mens rea, and the like.  When you understand that all behavior ultimately derives from electrochemical interactions between neurons, and begin to appreciate the connection between dysfunction in particular areas of the brain and criminal actions, the dividing lines we set between good men and bad men, compelled behavior and chosen acts, sanity and insanity become highly suspect. 

In so many ways, we are not the people we believe ourselves to be, and our system does not deliver what we promise. 

            Nearly two decades later, I look back and see the investigation of Suzanne’s death in a very different light.  I wonder now, for example, how much confirmation bias doomed the search for the killer.  Humans have an incredible ability to fill in gaps and reach conclusions based on a very limited amount of information.  That rush to judgment can be incredibly helpful in certain circumstances—say, deciding whether your kid is choking or whether a dog running towards you is likely to bite—but it can be catastrophic for a murder investigation.  Ironically, the less facts we have, the simpler it is for us to come up with a coherent narrative and the more confident we are likely to be in its accuracy.  Compounding the problem, we tend not to revisit our starting assumptions: instead, we seek information that reinforces what we already believe to be true and minimize and ignore contrary details.  This has been shown to affect everyone from Supreme Court justices, who selectively sort through the evidence when they go in search of legislative facts, like whether police chases are inherently dangerous, to forensic analysists, who are more likely to find a fingerprint match when they know that the sample came from someone who already confessed.  This tunnel vision can be a particular problem for detectives when they narrow their focus to a particular suspect early on in a case. 

Within four days, the police had set their attention on James Van de Velde, Suzanne’s senior thesis advisor, a political scientist who lived a half-a-mile from the crime scene.  His name was leaked to the press and we all then saw him through the frame of guilt.  Just like the police, my friends and I easily concocted a believable story: he must have been having a relationship with Suzanne or perhaps she spurned him—these things happened at universities, after all.  The “proof” was easy to find.  He’d worked in the intelligence community; the CIA must have trained him how to kill without leaving any evidence.  No one could vouch for his whereabouts that night.  Several people in the poli-sci department told the New York Times (anonymously) that “they found him frosty.”

Every fact supporting a theory of guilt was catalogued and when things didn’t quite line-up, the police seemed to look to make them fit.  James Van Pelt had seen a small red car speeding away from the scene where Suzanne’s body had been found.  But when he talked to the police, he reported that “[t]hey kind of tried to tilt me a couple of times by suggesting maybe I didn’t see a red sedan, as I said—maybe I saw a Jeep, a red Jeep, which is I guess what Van de Velde has.”  Similarly, one of Van de Velde’s students, Alison Cole, recalled that she was repeatedly pressured by detectives to explain her relationship with her professor and “when [she] answered multiple times that it was strictly teacher-student, they would say: ‘Are you sure?  You won’t get in trouble.’”  These types of interactions can seem innocuous, but psychological research suggests that they can and do lead to wrongful convictions.  Memory is incredible fragile and malleable, and subtle signals and suggestions from the police can alter witness accounts.  Indeed, when police provide false information to a witness—telling him, for example, that Van de Velde had been fired from Stanford for sexual harassment, as one of Van de Velde’s other students reported the New Haven Police did—that can alter his own recall of events.  When they show an image of a suspect to an eyewitness that can sway her to select that person in a later identification.  The witness’s memory has potentially been corrupted and, if she picks the suspect out, there’s no way to know if she’s remembering the original criminal or the photo she was shown.  In this case, the Hartford Courant reported that a woman who had seen a man running from near the crime scene was presented with a photograph of Van de Velde and then taken to his office for an in-person view.  When she stuck to her guns saying that the man she’d seen wasn’t the professor, the detectives didn’t follow up—in all likelihood because they had their sights set on Van de Velde and her account didn’t fit that frame.     

            Equally unsettling, in interviewing Van de Velde himself, the police appear to have relied on deeply flawed, but commonly used, interrogation techniques that psychologists have shown to be highly coercive and lead to false confessions.  As appears to have been the case here, a suspect like Van de Velde is usually brought in and given a series of softball questions meant to allow detectives to assess whether the suspect is lying.  One of the problems is that detectives, as discussed above, struggle with that task, relying on inaccurate tells.  Just as important, once they decide the suspect is lying, investigators aren’t meant to revisit that assumption, but instead simply to extract a confession by employing minimization and maximization strategies—a sort of good cop / bad cop routine.  As Van de Velde described later, the detectives pressed him hard to confess, showing him graphic photographs of Suzanne’s body and saying things like, “We know it wasn’t the thesis, we know it wasn’t the thesis.  Just tell us what it was.”  There is no evidence that they were trying to force him to admit to a crime he didn’t commit.  They just wanted to close the case and they thought Van de Velde was their guy.  Unfortunately, good intentions are not enough: decent people with the most meritorious of motivations can create terrible injustice. 

            We are all walking around with blinders that make it hard to recognize where we are going astray.  Consider the wildly inconsistent assessments of Van de Velde’s behavior made by both the police and public.  When he initially talked to the police for hours without a lawyer by his side that was taken as a sign of clear guilt—in the words of former New Haven Police Chief Nicholas Pastore, “How many innocent people do you know who will sit there and answer questions for four hours?”  When Van de Velde then hired a prominent criminal defender, Ira Grudberg, that, too, was a sign of clear guilt.  No one seemed to notice the contradiction because that’s how our minds work. 

I wrote my book, Unfair: The New Science of Criminal Injustice, because I am convinced that everyone needs to understand the nature and magnitude of the threat our justice system faces.  And that’s why I’ve been traveling around the country speaking with judges, prosecutors, defenders, forensic scientists, and members of the general public.  Even people working in the system do not grasp the scope of the problems or the realistic steps we can take to address them. 

In advocating for evidence-based reforms to policing, adjudication, and corrections, many of the most rewarding interactions I’ve had have been with non-experts—indeed, with young people. 

These exchanges are rarer than I’d like.  And I think a big part of that has to do with a reluctance to bring the disconcerting research from the mind sciences to young people. “We need to protect them—it’s just too heavy,” I’ve heard people say.  “Let’s show students all the ways things work well first, before we disillusion them,” others add. 

I strongly disagree. 

For one thing, many teenagers have already experienced or are experiencing our failed criminal justice system.  We know this from the survey data and I know this from teaching young people, who, every semester, tell me about sexual assaults they have suffered, attempted murders they have witnessed, robberies and break-ins they’ve lived through.  They have friends and family members locked up behind bars.  They have parents, cousins, and partners who are cops, prison guards, and defenders.  It seems particularly absurd to argue that kids need to be protected from learning the truth about police stops, prosecutions, and prisons, when we don’t protect them from actually being stopped by the police, charged as an adult, and sent to an adult correctional facility. 

The critics are wrong that young people aren’t capable of being part of the conversation on criminal justice reform.  There is no neuroscientific or psychological evidence to suggest that teenagers are incapable of understanding the key issues and what is at stake.  Indeed, when I’ve given talks recently about the cutting-edge of criminal justice—the potential to use virtual reality to control for biased assessments at trial, the dangers of fabricated audio and video evidence, the potential for algorithms to assess guilt—I’ve noticed a very distinct pattern of understanding by age: the younger the audience members, the more familiar they are with the underlying technology and the sharper the questions that they ask.  

When it comes to reform, teenagers also have more of a stake in the outcome.  A teenager is far more likely to be the victim of a violent crime, far more likely to be harassed by the police, and far more likely to be arrested than someone older than 65.  And a teenager today has many more years to live with the consequences of our failed policies than a retiree, whether that’s measured in tax dollars spent on mass incarceration, depressed educational attainment and lost economic productivity in high crime neighborhoods, wrongful convictions, or lives lost to gun violence. 

Young people deserve to be told the truth, even the painful truths that shake their faith in our existing institutions and norms.  As a law professor, I see one of my main jobs as teaching skepticism.  The best lawyers have a skeptical eye.  The problem is that in law there is a particularly strong deference to the status quo—indeed, to the past.  My students come in assuming that the cases in my Criminal Law casebook were all decided correctly and that the criminal code provisions we study are fair and effective.  They assume that the people who gave us our laws, precedents, and procedures were smarter and more enlightened than they are.  That’s a dangerous mindset and we would do well—all of us—to combat it.  In nearly every other field of inquiry innovation is encouraged and rewarded.  So why not in law?  Imagine if students in computer science or biomedical engineering or automotive design were told to focus on the past, to accept the existing solutions as optimal, to focus simply on mastering the tools as they exist.  It wouldn’t make sense and it doesn’t make sense for our future judges, lawyers, police officers, and corrections workers either.  They, too, need an innovation outlook. 

Just as psychology and neuroscience have revealed the flaws in our criminal justice architecture, they can also offer a new blueprint for remaking the system based upon a realistic model of human behavior.  If the next generation embraces evidence-based best practices and has the courage to challenge convention, we will have the chance to achieve the justice we seek and that Suzanne has long been denied.