Unfair (26 page)

Scientists think that the ultimate source of such unconscious bias is found in negative stereotypes that have percolated in our culture since the time of slavery and before and are stoked by a disproportionate number of news stories focused on African Americans and crime.
These stereotypes provide a ready explanation for the black defendant's behavior: his violent and criminal nature.
And when the focus is on the accused's evil disposition, rather than on circumstances not of his making, it is natural to treat him more harshly.
In one recent experiment, researchers had two groups of participants read about a fourteen-year-old with seventeen prior juvenile convictions who raped an elderly woman.
Participants were then asked to what extent, in general, they supported sentences of life without parole for juveniles in non-homicide cases.
The texts given to the groups were identical, aside from one word: for the first group, the defendant was described as black; for the second group, he was described as white.
Participants who had read about the black teenager expressed more support for the severe sentence and for the notion that kids are as blameworthy as adults.

It's upsetting to think that such a minor reference to race could have an impact.
In a real trial, race may become salient in numerous ways, from the defendant's skin color to the coded language used by a prosecutor, judge, or a witness.
Not everyone, though, is equally swayed by such cues.
For some people, describing a defendant as a “violent inner-city criminal,” as opposed to just a “violent criminal,” causes them to favor harsher punishment, while others are not influenced by the racially tinged words at all.
And there is some evidence to suggest that those who are aware that the issue of race is in play—either because they are particularly attuned to race or because the threat of discrimination is made explicit—may resist the tendency to act more punitively toward a black defendant so as not to appear racist.

The fact that referring to Pete as black rather than white could increase the severity of his punishment should not be surprising:
after all, many of us are familiar with lingering racial bias in the criminal justice system. But what if we now do something more subtle. Let's change the shape of Pete's nose, making his nostrils slightly wider and his nose flatter. Could that possibly make a difference?

In a word: yes. It's not just whether you are black; it's
how black
you are.
The broadness of a defendant's nose, the thickness of his lips, and the darkness of his skin have all been correlated with capital-punishment decisions: in cases where the victim is white, the more stereotypically black a defendant's facial features, the more likely he is to receive the death penalty.
The same dynamic is at work with non-capital sentences.
One study found that felons with the most stereotypically black features spent up to eight months longer in prison than those with the least stereotypical faces.

Speaking of noses and lips, what if we gave Pete some good old-fashioned cosmetic surgery? Could making him better looking influence his punishment? The familiar story of the beautiful scofflaw who repeatedly bats her eyes out of speeding tickets is closer to the truth than we would care to admit.
Research shows that the handsomeness of an offender can influence how harshly he is punished—not because people see the attractive defendant as innocent of the crime but because the beautiful are viewed as less blameworthy.
In essence, when you have a pretty face, it can act as a halo, casting a more positive light on your actions. Cesare Lombroso and the other physiognomists we encountered earlier in the book are long since dead, but we still carry their torch. It's not only that we have preconceived notions about the bone structure of evil; it's also that we feel sure we know what virtue looks like.

But even without plastic surgery, Pete might influence those deciding his fate simply by changing his outward demeanor at trial. A man in Pete's position may not show emotion during proceedings for all sorts of reasons, including a sense that appearing contrite is pointless or may make him look guilty.
But, in fact, psychologists have found that nonverbal displays of remorse, as well
as apologies and statements of regret, can encourage a more positive view of a person accused of a crime.
Indeed, when a person does not apologize or act remorseful, experimental participants tend to view him as having a worse character and being more likely to reoffend.
In turn, this can lead participants to advocate less harsh punishment for a contrite or apologetic offender.

We see this in the real world, too, especially in capital trials.
Prosecutors often hammer on the defendant's absence of regret, and jurors often cite it as a critical factor in their decision to impose the death penalty.
And the hard data seems to suggest that those defendants who remain remorseless—who appear cocky or bored or cool, calculated, and controlled—fare worse than those who are emotionally contrite.

Of course, the power of remorse and apology is not reserved for those facing a death sentence.
One recent study showed that people pulled over for speeding who said things to the officer like “I'm sorry” were given lower fines and were more likely to get off with just a warning.

We've been focusing on Pete's appearance, but let's zoom out: imagine that just before the jury was about to deliberate, there was a report on the morning news about an apparent terrorist bombing on the subway in Toronto.
The tragic attack in Canada has no connection at all to Pete or to the trial, but a wealth of psychological research suggests that it may very well affect the way we punish.

Humans occupy a strange place in the animal kingdom: our instincts for self-preservation are similar to those of other species, but we are uniquely aware of our mortality. And thoughts of death are deeply unsettling.
It is terrifying to think that we have only one life to live and that it could be snuffed out in an instant by any number of factors beyond our control: drunk drivers, sharks, lightning, cancer, and the Ebola virus, to name just a few.

Luckily, we have developed the means to quell this overwhelming terror, including our basic cultural belief systems, which provide
our lives with purpose, stability, and order.
Religions, for example, commonly tell us how to lead a meaningful life and avoid dangers, and offer reassurance that death is really not the end.
Our legal institutions offer similar directions for how to be good citizens, protection from threats to our safety, and comfort that our way of life is lasting (even if our physical bodies are not).

The more terror we feel, the more we cling to these belief systems and the more vigorously we defend them. This is why the Canadian tragedy may affect Pete's sentence.
A number of experiments have shown that thoughts of death, like those evoked by reading about a terrorist attack, can lead a person to act more punitively toward criminals—that is, those who already stand as a threat.

In one study, researchers asked a group of judges from Arizona to set bond in a hypothetical prostitution case.
Before considering the facts of the case, however, half of the judges were given a personality test in which they were reminded of their own mortality.
The judges who had been subconsciously induced to think about death set bond at $455, on average, whereas those who had not been so induced set bond at a small fraction of that figure—just $50.
The researchers theorized that after being primed to consider their own mortality, judges were prompted to defend their worldviews and to treat someone who seemed to endanger the establishment more harshly.
Had this been a real case, the impact on the defendant in question would most likely have been significant: for someone struggling to make ends meet, a higher bond can mean awaiting trial in jail.

While subtle reminders of death have been shown to increase the severity of punishment across a wide range of scenarios, from assaults to drunk driving, not all legal decision-makers are influenced in the same way.
Those with very high self-esteem, for example, seem less susceptible to mortality cues, arguably because their strong sense of self helps them manage their fear.
And some people simply do not view prostitutes and other criminals as
particularly threatening.
In fact, when an offense actually aligns with a decision-maker's worldview—think of a hate crime against a gay couple presided over by a vehemently anti-gay judge—that decision-maker may be more lenient to the offender.

As a general matter, though, when judges and jurors are faced with thoughts of death, it is often going to be at the expense of the accused. What is especially
problematic for defendants is that there are so many ways in which decision-makers can be reminded of their mortality.
An external event like a plane crash, epidemic, or war can certainly affect a verdict or sentence, but cues from inside the courtroom can be just as powerful.
For one thing, many crimes involve interpersonal violence, and it is hard not to think about one's own vulnerability when hearing the details of a stickup, violent assault, or murder, like the one Pete was accused of committing.

Attorneys and witnesses regularly help the process along.
A prosecutor may emphasize that two victims of a drunk-driving accident could have been killed, or may ask jurors to put themselves in the victim's place.
Likewise, a witness may describe the impact of a murder on the victim's family.

The mortality dynamic may be strongest in capital cases.
Not only are thoughts of death inevitable in such instances, but the defendants tend to be members of outgroups—the mentally ill, drug addicts, racial minorities, and the poor—who are naturally seen as greater threats.
In addition, only those who are willing to impose the death penalty are allowed to serve on capital juries, and there is reason to believe that such individuals are more strongly affected by mortality-related prompts. Pro—death penalty juries are, indeed, more prone to convict. Logic would suggest that when a defendant's life is at stake, the checks we've built into the system would mitigate the effects of these hidden biases: jurors are aware of the heightened costs of erring, judges know that their decisions are more likely to be appealed and scrutinized by appellate courts, the attorneys involved in the case tend to be more experienced,
and the proceedings generally receive greater attention from the public and the press. Yet the gravity of the situation provides no such salve to the accused; in fact, the seriousness of the crime can actually make things worse.

This dynamic may itself be amplified by something lurking in the background of every criminal law case—belief in evil.
Recall our problematic “mug shot” view of criminality: when something horrible happens, we are inclined to see an evil person as the source.
This notion allows us to maintain our reassuring belief in a just world, in which harms have a clear and recognizable origin that can be readily addressed.
It is far more unsettling to think that most of us are capable of committing serious crimes—even though that is what research on the power of situational influences suggests.

In trying to understand the “myth of evil,” researchers have catalogued the underlying assumptions that many of us share, including the idea that some people are born evil and that evil people derive pleasure from their bad acts. These beliefs inform our drives to punish: if you believe in the existence of pure evil, it stands to reason that you will tend to support harsh punishment and view efforts at reforming offenders as pointless.
And that's exactly what the research shows, both when people are asked to consider matters in the abstract and when they're tasked with sentencing a real person.
In one study, the potency of people's belief in evil predicted the likelihood that they would support the execution of Nidal Malik Hasan, the man responsible for shooting and killing thirteen people at Fort Hood.

Though much of the public believes that evil is an immutable trait, whether we view someone as evil can be influenced by subtle cues.
Even seemingly insignificant things like an offender's wardrobe, taste in music, and favorite books (think Goth appearance, enjoyment of heavy metal, and interest in occult literature) can encourage some people to view the offender as more evil and prompt more severe punishment.
Damien Echols, the accused
ringleader of a group of teenagers convicted of murdering three eight-year-old boys in Arkansas in 1993, might have received the death penalty in any case—but in light of the research, it is hard to ignore the possible impact of his first name, black clothes, love of heavy metal, and interest in witchcraft, all of which were raised at trial.

The implications are disconcerting.
People with an ardent belief in pure evil are active participants in determining sentences, reviewing punishments, and setting policy.
It matters when a governor or president evaluating petitions for clemency from death-row inmates thinks—as George W. Bush did—that “good and evil are present in this world, and between the two there can be no compromise.”
And it matters when a sitting Supreme Court justice wholeheartedly believes that the Devil is a real person, as Justice Antonin Scalia does.

Such individuals are at a distinct disadvantage when it comes to appreciating the various forces outside of an offender's control that may have led him to commit a terrible act.
And this creates a tragic paradox in which those who are more likely to see evil in others are more likely to commit evil acts themselves—supporting or perpetrating cruel acts against people whose crimes ultimately reflect not their corrupted dispositions but their genetic and environmental bad luck.

So, in light of all this, are our beliefs and motivations really that different from those of our medieval French counterparts who tried and executed a pig?

The Harvard psychologist Steven Pinker has offered a convincing argument that, viewed against the backdrop of human history, the modern world is relatively peaceful.
One of the driving forces behind the decrease in violence, he argues, is the transfer of punishment responsibilities to a disinterested third party.
And it seems obvious that the modern judicial system, with its judges,
jurors, police, lawyers, and correctional officers, has indeed preempted much of the bloody individual and group retaliation that characterized our past. But if outward behavior has changed, it is less clear how our brains have fared.