Unfair examines the flaws in the American criminal justice system through a scientific lens. Benforado explores how psychological biases, unreliable eyewitness testimony, and flawed interrogation techniques lead to wrongful convictions. He argues that even when the system works as designed, it produces unfair outcomes. While some readers found the proposed solutions impractical, many praised the book's compelling case studies and accessible writing style. Critics noted the lack of in-text citations, but overall, reviewers considered it an important, thought-provoking read for anyone interested in criminal justice reform.
Our criminal justice system is built on flawed assumptions about human behavior
Eyewitness testimony and confessions are often unreliable
Hidden biases influence every stage of the legal process
Brain structure and development play a crucial role in criminal behavior
Our punitive approach to justice often backfires
The adversarial legal system can undermine the search for truth
Technology and science offer new tools to improve the justice system
Empathy and rehabilitation should be central to criminal justice reform
We feel confident that we know our judicial system. We know why people commit crimes, how to identify the guilty, and what makes a good judge. And we know where we still have work to do.
Mistaken beliefs. Our justice system operates on several key assumptions that science has shown to be false:
That people are rational actors who carefully weigh the costs and benefits of their actions
That we can accurately detect lies and determine guilt based on a person's demeanor
That harsh punishments deter crime
That confessions and eyewitness accounts are reliable evidence
Hidden influences. In reality, human behavior and decision-making are shaped by:
Unconscious biases and mental shortcuts
Environmental and situational factors
Brain structure and development
Mental illness and cognitive impairments
These factors are often invisible to us but have an enormous impact on criminal behavior and how we respond to it. Our failure to account for them leads to unfair and ineffective outcomes.
To achieve the proper result, all-seeing God, who controlled the natural elements, would direct those elements to behave in an unusual manner: hot iron would fail to burn the innocent hand; cold water would prevent the guilty from sinking.
Memory is malleable. Despite our intuitions, human memory does not work like a video camera:
Memories can be distorted by suggestion, leading questions, and the passage of time
People can develop false memories of events that never occurred
Stress and trauma can impair memory formation and recall
False confessions. Innocent people sometimes confess to crimes they didn't commit due to:
Coercive interrogation techniques
Mental illness or cognitive impairment
Fear and exhaustion
Belief that they can later prove their innocence
These problems are compounded by the fact that juries tend to view confessions and eyewitness testimony as highly reliable forms of evidence. This can lead to wrongful convictions even when other evidence points to innocence.
We are masters at jumping to conclusions based on an extremely limited amount of evidence. The automatic processes in our brain (commonly referred to as System 1) quickly take in the scene and then reach a conclusion about the victim based on what is right in front of us, without considering what we might be missing.
Pervasive influence. Unconscious biases affect:
Police decisions about who to stop, search, and arrest
Prosecutor choices about charges and plea bargains
Jury selection and deliberations
Judicial rulings and sentencing
Types of bias. Common biases in the justice system include:
Racial and ethnic bias
Gender bias
Class bias
Confirmation bias (seeking information that confirms existing beliefs)
Anchoring (being influenced by initial information)
These biases operate below the level of conscious awareness, making them difficult to detect and counteract. Even well-intentioned professionals who believe they are being objective can be swayed by them.
Our thoughts, beliefs, and actions are simply the product of roughly 100 billion neurons, each with its associated synapses, sending out and receiving neurotransmitters. If some of these electrochemical reactions don't occur in the normal way, because of, say, a tumor or a traumatic brain injury, a person may lack empathy, or hear voices, or have trouble remembering things.
Biological factors. Criminal behavior is influenced by:
Genetic predispositions
Brain structure abnormalities
Neurotransmitter imbalances
Traumatic brain injuries
Developmental issues. The brain continues developing into the mid-20s, affecting:
Impulse control
Risk assessment
Emotional regulation
Decision-making
These biological realities challenge our notions of free will and moral culpability. They suggest that many criminals may have diminished capacity to control their actions or understand their consequences.
We are swimming in a sea of dishonesty. At this very moment there are people right in front of us—strangers and those we know; our idols, our enemies, and our friends—behaving badly: employees lying on their time sheets or padding their expense accounts; athletes feigning fouls to win penalties or taking performance-enhancing drugs to gain an edge; cheating spouses and partners; men and women engaging in insurance fraud and tax fraud and defrauding their elderly relatives; millions of Americans downloading billions of songs and videos that they did not pay for.
Counterproductive punishment. Harsh sentences and inhumane prison conditions often:
Fail to deter crime
Make rehabilitation more difficult
Increase recidivism rates
Destroy families and communities
Alternative approaches. More effective strategies include:
Addressing root causes of crime (poverty, mental illness, addiction)
Focusing on rehabilitation and reintegration
Using restorative justice practices
Implementing evidence-based interventions
Our retributive instinct for punishment often overrides more rational, effective approaches to reducing crime and helping offenders become productive members of society.
We expend so much energy battling, reforming, and strictly enforcing our procedural protections that we lose sight of the fact that they are merely a means to an end. A judge will let you off of your shoplifting charge if the police stepped into your home and seized evidence without a warrant, but a court will rarely intervene in the obviously unjust situation of a man being sent to prison for the rest of his life for stealing a few DVDs.
Winning vs. truth-seeking. The adversarial system incentivizes:
Concealing unfavorable evidence
Attacking witness credibility regardless of truthfulness
Using procedural tactics to exclude relevant information
Unintended consequences. Adversarial procedures can lead to:
Wrongful convictions of the innocent
Acquittals of the guilty on technicalities
Focus on "winning" rather than justice
While designed to protect rights, the adversarial system can actually obscure the truth and produce unjust outcomes. Alternative models that prioritize collaborative fact-finding may be more effective.
Growing experimental evidence suggests that knowing that we are being watched can help us behave in the right way. Indeed, contrary to the Supreme Court majority's belief that Connick's supervisory shortcomings were not to blame for Thompson's wrongful conviction, there is good reason to think that effective oversight in the D.A.'s office might have prevented the injustice Thompson suffered.
Scientific advances. New technologies and research methods include:
Brain imaging to understand criminal behavior
DNA analysis for more accurate identification
Body cameras to monitor police conduct
Data analysis to detect patterns of bias
Evidence-based practices. Science can inform:
More effective rehabilitation programs
Improved interrogation techniques
Better methods for evaluating evidence
Strategies for reducing cognitive biases
While technology alone cannot solve all problems in the justice system, it offers powerful new tools for enhancing accuracy, fairness, and accountability when properly applied.
The reason is simple: Germany and the Netherlands, like Norway, have organized their penal system around resocialization and rehabilitation. It's right there in their laws. Germany's Prison Act, for example, makes rehabilitating the inmate the sole aim of incarceration; protecting the public is simply a natural outgrowth of ensuring the inmate's successful transition back into society upon release.
Humanizing offenders. Recognizing the humanity of criminals:
Reduces dehumanization and harsh treatment
Encourages addressing root causes of crime
Promotes more effective rehabilitation
Rehabilitation focus. Prioritizing rehabilitation over punishment:
Reduces recidivism rates
Helps offenders become productive citizens
Is more cost-effective long-term
Aligns with scientific understanding of behavior
Countries that have adopted more humane, rehabilitation-focused approaches have seen better outcomes in terms of reduced crime and successful reintegration of offenders. Shifting from a punitive to a rehabilitative model requires overcoming deep-seated instincts for retribution, but offers a more effective and ethical approach to justice.