Unfair (37 page)

In Montgomery, Alabama, in 1965, Martin Luther King Jr. asserted that “the arc of the moral universe is long, but it bends toward justice.” And it might seem safe to assume that the unfairness explored in this book will be stamped out in society's ceaseless and inevitable march forward. Ten thousand years ago, there was no court or trial to ensure that a man accused of murder received due process—justice was the end of a spear. One thousand years ago, proof of guilt was revealed when a woman's hand festered after being burned with a hot iron. One hundred years ago, black citizens could be barred from the jury box, bar, and bench on account of the color of their skin.
And ten years ago, it was legal in the United States to execute someone who had committed his crime before he was eighteen. Progress, certainly—but this has been no unbroken advance. It has been a journey, uphill and against the wind. It has entailed detours and backtracking—and our current vantage point has much to do with chance. History makes clear that our next destination may, or may not, lie up the mountain.

The decline of the trial by ordeal—the starting point of this book—was not brought about because people suddenly realized that dipping men and women into water to see if they float was a
poor way to assess innocence.
It disappeared because the Catholic Church hierarchy decided that commanding God to work miracles in the service of a human judicial system violated biblical principles.
And what replaced the ordeal was not a system of evidence and reason but something arguably less accurate and humane than what had come before: judicial torture.
For roughly the next half millennium, when a person was strongly suspected of a serious crime, but there were no witnesses, he would be broken on the rack or subjected to the thumbscrew to elicit a confession. Like those who had administered the ordeal, the officials in charge did not see themselves as cruel or unjust.
Like us, they constructed an elaborate structure of seemingly objective rules and procedures that affirmed their righteousness and impartiality.

Yet we are different from those who came before.
And what sets us apart is not the virtue of our current laws—our plea-bargain system, for one, gives innocent defendants a “choice” that's not so different from that offered under judicial torture—but rather our
potential
for virtue.

It would have taken an exceptional person to stand in the common crowd at Soissons as Clement was thrown into the vat and spot injustice. What would have inspired doubt? And what resources would he have had to nurture it and help it spread afield? What evidence could he have mustered? Who would have listened? At a time without mass communication or centralized government, even the most passionate and resolute reformer could not have expected to have much of an impact.

We enjoy magnificent advantages over our forebears in the quest to remedy unfairness. We know much more than they did about human behavior, we possess amazing technologies to track, address, and prevent problems, and we have a greatly enhanced capacity to coordinate actions that affect millions of people.

But for it to matter, we must act.

The arc of history does not bend toward justice unless we bend it.

Nobody cares about criminal law except theorists and habitual criminals
.

—
SIR HENRY MAINE

If you go by the last century of news stories, novels, and movies, Sir Henry's statement ranks up there with the 1962 Decca Records verdict that “the Beatles have no future in show business.” But Sir Henry was right on a certain level: although people may be enthralled by criminal law, they don't really
care
about it. On a list of major concerns, the state of our criminal justice system comes well down the line. The reason is simple enough: most people don't know what's really going on.

I set out to write this book because I became convinced that the truth about our legal system could not remain confined to the academics who studied it or those unfortunate souls who suffered under it; the general public needed to confront the hidden unfairness.

My path was greatly facilitated by numerous scientists and scholars whose work grounds this book. In this illustrious group, Jon Hanson deserves special mention: he introduced me to the field of law and mind sciences and opened my eyes to an array of problems I had never considered. His kindness, brilliance, and generosity changed the trajectory of my professional life: without him, I wouldn't be a law professor.

I am also deeply grateful to my editor, Amanda Cook. It is
hard to imagine a more dedicated, tireless, and thoughtful guardian for this project. Her efforts—and those of her star assistant editor, Emma Berry—have made the book sharper, clearer, and more engaging. With her deft touch and keen instincts, Katya Rice taught me the value of a terrific copyedit. And I owe much to the entire team at Crown who brought the book to market.

I thank Will Lippincott, my agent and friend, whose constant support, strong advocacy, and wise counsel have helped me navigate the world of publishing, and everyone at Lippincott Massie McQuilkin for keeping things on course.

I am indebted to the efforts of a true honor roll of research assistants: Jessica Acheson, Justine Baakman, Kathleen Bichner, Louis Casadia, John Corcoran, Nathaniel Crider, Andrew Davis, Mallory Deardorff, Tudor Farcas, Kyle Gray, Claudia Hage, Seth Haynes, William Holland, Rachel Horton, Patrick Mulqueen, Alexandra Rogin, and Patrick Woolford. Their enthusiasm and hard work kept me going when the mountains of research studies and books seemed to grow taller with each step I took. More broadly, I thank students in my Criminal Law course and my Law and Mind Sciences seminar who challenged me to rethink my assumptions and look at old material with fresh eyes.

I am also grateful for the diligent assistance of the librarians and staff of the Drexel Legal Research Center, including Sunita Balija, John Cannan, Steven Thorpe, and especially Lindsay Steussy, for helping track down a wide range of material with admirable speed and efficiency. Jerry Arrison deserves special accolades for his assistance in making my dream of online endnotes a reality.

For their help and encouragement, I thank my colleagues at Drexel and Brooklyn Law, as well as an army of friends who read parts of the proposal and manuscript, guided me toward useful sources, and provided invaluable advice, in particular Adam Alter, Dena Gromet, Peter Leckman, Catherine Price, Dominic Tierney, and Benjamin Wallace-Wells. My collaborator Geoff Goodwin
has played an especially prominent role in shaping my thoughts on the book's core topics. He is as rigorous and bright a scientist as I've met, and I have learned a tremendous amount from him, not because we always agree on things, but because frequently we don't. Our research on punishment was supported by a generous grant from the National Science Foundation, to which I am very grateful.

One of the corollaries to the discussion on the biological and environmental causes of criminal behavior is that our
positive
actions are also indelibly shaped by our families. This book is no exception. I know how lucky I am to have been born into such a wonderful, encouraging, and loving home. Jay, Beth, and Nate, I would not have had the diverse interests, grit, and intelligence to write this book without your presence in my life. I also thank my extended family for their support, including my grandmother, Lenore, a poet, who at ninety still writes me weekly letters: whether genetic or learned, her passion for the written word runs in my veins.

This book is dedicated to my wife, Brooke, and my daughter, Mira. Brooke, you are an amazing woman, my greatest champion, and my greatest comfort. Mira, you are the most wondrous person I've ever met. I love you both more than you can know. My major regret is that my sacrifices in writing this book fell on your shoulders as well. But they were also sacrifices for you: I want you both to live in a better world than the one we have.

The water in the vat:
The full account of the trial of Clement and Evrard appears in the memoirs of eleventh- and twelfth-century critic, theologian, and observer Guibert of Nogent. In reconstructing the events, I rely primarily on the translation of Guibert's autobiography by John F. Benton (based on an earlier translation by C. C. Swinton Bland). John F. Benton, ed.,
Self and Society in Medieval France: The Memoirs of Abbot Guibert of Nogent (1064?–c. 1125)
(New York: Harper & Row, 1970), 214. I am also indebted to several other works. Jay Rubenstein,
Guibert of Nogent: Portrait of a Medieval Mind
(New York: Routledge, 2002); Joseph McAlhany,
Monodies and On the Relics of Saints: The Autobiography and a Manifesto of a French Monk from the Time of the Crusades
, trans. Jay Rubenstein (New York: Penguin Books, 2011); Margaret H. Kerr, Richard D. Forsyth, and Michael J. Plyley, “Cold Water and Hot Iron: Trial by Ordeal in England,”
Journal of Interdisciplinary History
22, no. 4 (1992): 582–83.

But they were still in the church:
Benton,
Self and Society in Medieval France
, 213–14.

Clement and Evrard, who were peasants:
Benton,
Self and Society in Medieval France
, 212.

The charge was heresy:
Benton,
Self and Society in Medieval France
, 212.

That is why:
Benton,
Self and Society in Medieval France
, 212.

But the brothers:
Benton,
Self and Society in Medieval France
, 212.

No, they were emissaries:
Benton,
Self and Society in Medieval France
, 212.

Into idle ears:
Benton,
Self and Society in Medieval France
, 212.

And in the shadows:
Benton,
Self and Society in Medieval France
, 212.

As Abbot Guibert recorded:
Benton,
Self and Society in Medieval France
, 212–13.

Indeed, rumor had it:
Benton,
Self and Society in Medieval France
, 212–13.

Such were the men:
Benton,
Self and Society in Medieval France
, 213.

The brothers had been betrayed:
Benton,
Self and Society in Medieval France
, 213–14.

But these accusers:
Benton,
Self and Society in Medieval France
, 214.

And when questioned by the lord bishop:
Benton,
Self and Society in Medieval France
, 213.

Following the celebration of Mass:
Benton,
Self and Society in Medieval France
, 214.

As they appeared before the water:
Benton,
Self and Society in Medieval France
, 214.

Tears rolled down:
Benton,
Self and Society in Medieval France
, 214.

And Clement and Evrard:
Benton,
Self and Society in Medieval France
, 214.

It was at this moment:
Benton,
Self and Society in Medieval France
, 214.

This was the trial:
Benton,
Self and Society in Medieval France
, 213.

As the ninth-century theologian:
Arthur C. Howland, ed.,
Ordeals, Compurgation, Excommunication and Interdict
(Philadelphia: University of Pennsylvania, 1901), 11. Hincmar was Archbishop of Rheims and a leader in both ecclesiastical and secular affairs. James C. Prichard,
The Life and Times of Hincmar, Archbishop of Rheims
(London: A. A. Masson, 1849), 8–9.

Baptismal water was pure:
Howland,
Ordeals, Compurgation, Excommunication
, 11.

An accused person like Clement:
Kerr, Forsyth, and Plyley, “Cold Water and Hot Iron,” 582–83; Henry Charles Lea,
The Ordeal
(Philadelphia: University of Pennsylvania Press, 1973), 72.

According to Hincmar:
Howland,
Ordeals, Compurgation, Excommunication
, 11.

In some versions of the trial:
Kerr, Forsyth, and Plyley, “Cold Water and Hot Iron,” 582–83; Rebecca V. Colman, “Reason and Unreason in Early Medieval Law,”
Journal of Interdisciplinary History
4, no. 4 (1974): 589; Lea,
The Ordeal
, 72.

He “floated like a stick”:
Benton,
Self and Society in Medieval France
, 214. As Abbot Guibert recorded later, “At this sight, the whole church was filled with unbounded joy. [The brothers'] notoriety had brought together such an assembly of both sexes that no one present could remember seeing one like it before.” Benton,
Self and Society in Medieval France
, 214.

Evrard, watching his brother's fate, decided to confess his error, rather than undergo the submersion. Benton,
Self and Society in Medieval France
, 214. The blessed water that had rejected Clement must just as surely reject him, too. Peter Brown, “Society and the Supernatural: A Medieval Change,”
Daedalus
104, no. 2 (1975): 139.

With the trial complete, the brothers were brought directly to the prison, where they were joined by two other “established heretics from the village of Dormans” who had been foolish enough to come to watch the proceedings and were seized in short order. Benton,
Self and Society in Medieval France
, 214.

The matter, however, was not yet settled. Benton,
Self and Society in Medieval France
, 214. The ordeal provided the judgment of God, but not the sentence. Robert Bartlett,
Trial by Fire and Water: The Medieval Judicial Ordeal
(Oxford: Clarendon Press, 1986), 23. To determine the proper strategy for dealing with the heretics, Abbot Guibert and the lord bishop sought out the wisdom of the Council of Beauvais. Benton,
Self and Society in Medieval France
, 214.

However, with the guilt of the men determined, the townspeople had no interest in further deliberations and rushed upon the prison, seizing all four men. A great fire had been built outside
the city and Clement and Evrard were “burned…to ashes.” Benton,
Self and Society in Medieval France
, 214. In the closing line on the incident, Abbot Guibert offered his support for the actions of the mob toward the brothers: “To prevent the spreading of the cancer, God's people showed a righteous zeal against them.” Benton,
Self and Society in Medieval France
, 214.

Here were the most esteemed:
Peter T. Leeson, “Ordeals,”
Journal of Law and Economics
55 (2012): 708.

And here was a neutral process:
Colman, “Reason and Unreason in Early Medieval Law,” 585–86.

Witnesses could lie and judges could bow:
Colman, “Reason and Unreason in Early Medieval Law,” 586.

In an era in which the divine:
Ian C. Pilarczyk, “Between a Rock and a Hot Place: The Role of Subjectivity and Rationality in the Medieval Ordeal by Hot Iron,”
Anglo-American Law Review
25 (1996): 111; Peter Leeson, “Justice, Medieval Style: The Case that ‘Trial by Ordeal' Actually Worked,”
Boston Globe
, January 31, 2010,
http://www.boston.com/​bostonglobe/ideas/articles/2010/01​/31/justice_medieval_style/
; Colman, “Reason and Unreason in Early Medieval Law,” 582 n. 34; Pilarczyk, “Between a Rock and a Hot Place,” 111. For those undergoing a hot ordeal, the hand that had been exposed to the heat was then bound and inspected after three days for signs of guilt: severe damage, festering, and the like. Colman, “Reason and Unreason in Early Medieval Law,” 582 n. 34.

To achieve the proper result:
Pilarczyk, “Between a Rock and a Hot Place,” 94; Robert C. Palmer, “Trial by Ordeal,”
Michigan Law Review
87 (1989): 1548.

With no dominant governmental authority:
Pilarczyk, “Between a Rock and a Hot Place,” 107-08.

But godly action:
The pervasiveness of these beliefs may explain the numerous examples of individuals voluntarily undergoing trial by ordeal, in lieu of other means of proof. Colman, “Reason and Unreason in Early Medieval Law,” 585.

Moreover, with an ordeal like Clement's:
Brown, “Society and the Supernatural,” 138.

How else might a community assess:
Brown, “Society and the Supernatural,” 137; Bartlett,
Trial by Fire and Water
, 22–23, 52; Leeson, “Ordeals,” 695; Kerr, Forsyth, and Plyley, “Cold Water and Hot Iron,” 574–75; Pilarczyk, “Between a Rock and a Hot Place,” 93–94, 107; Colman, “Reason and Unreason in Early Medieval Law,” 584; Palmer, “Trial by Ordeal,” 1550.

The legitimacy of the ordeal was bolstered by the fact that it appeared to work so well. Some people floated and some did not—and those who floated were rarely in a position to offer counter evidence after the fact to prove that they were actually innocent. Leeson, “Ordeals,” 705. Neither of the two types of cases that leant themselves to the ordeal posed much of a risk of subsequent developments contradicting or otherwise undermining the judgment. The first category involved crimes such as adultery, surreptitious murder, witchcraft, arson, housebreaking, and heresy, where there might not be explicit evidence or even a direct witness. Pilarczyk, “Between a Rock and a Hot Place,” 93; Colman, “Reason and Unreason in Early Medieval Law,” 583; Bartlett,
Trial by Fire and Water
, 30. Towns like Soissons faced invisible yet dangerous threats, and the normal judicial tools were simply not up to the task. Bartlett,
Trial by Fire and Water
, 22–23. By the twelfth century, particularly in areas of northern France and the Rhineland, heresy cases like Clement and Evrard's were regularly adjudicated through trial by ordeal. Bartlett,
Trial by Fire and Water
, 22–23, 52. The second set of cases were those in which the accused was disqualified from the normal procedures of swearing an oath or could not assemble others to attest to his innocence. Colman, “Reason and Unreason in Early Medieval
Law,” 584. In other words, the people most likely to undergo the ordeal were those least likely to have the relevant connections or power to contest the validity of the proceedings or the final judgment: slaves or other unfree persons, outsiders (foreigners), and those who were of general ill-repute who could not get others to swear on their behalf. Colman, “Reason and Unreason in Early Medieval Law,” 584; Palmer, “Trial by Ordeal,” 1550; Kerr, Forsyth, and Plyley, “Cold Water and Hot Iron,” 574–75.

There was no apparent alternative:
Although European legal systems subjected men and women to physical tests of guilt for more than a thousand years, the heyday of the ordeal was between the ninth and thirteenth centuries. Leeson, “Justice, Medieval Style”; Bartlett,
Trial by Fire and Water
, 13.

Innocent men and women:
Pilarczyk, “Between a Rock and a Hot Place,” 106.

Women and heavyset men:
Leeson, “Ordeals,” 707. Although a few modern scholars have attempted to show that under certain circumstances, ordeals could have led to accurate outcomes, there is little evidence that they were able to accurately distinguish guilt and innocence—and much reason to surmise that they did not. Pilarczyk, “Between a Rock and a Hot Place,” 110.

Even if the process had been valid:
Pilarczyk, “Between a Rock and a Hot Place,” 110.

What interest does society have:
Benton,
Self and Society in Medieval France
, 212.

In a scene from
Monty Python
:
Radlegry Balko, “Trial by Ordeal: The Surprising Accuracy of the Dark Ages' Trial by Fire Rituals,”
Reason.com
, February 1, 2010,
http://reason.com/​archives/2010/02​/01/trial-by-ordeal
; “Witch Village,”
Monty Python and the Holy Grail
, Special Edition, Disc 1, directed by Terry Gilliam and Terry Jones (1975; Culver City, CA: Columbia TriStar Home Entertainment, 2001), DVD.

The joyous crowd rushes off:
Balko, “Trial by Ordeal”; “Witch Village,”
Monty Python and the Holy Grail
.

They will examine our processes:
Balko, “Trial by Ordeal”; “Witch Village,”
Monty Python and the Holy Grail
.

In one study, researchers asked:
Although I have focused on two sets of participants, there were seven groups in total who were each given an assessment of the mental patient with slightly different wording. Paul Slovic, John Monahan, and Donald G. MacGregor, “Violence Risk Assessment and Risk Communication: The Effects of Using Actual Cases, Providing Instruction, and Employing Probability Versus Frequency Formats,”
Law and Human Behavior
24 (2000): 285–87.

Both groups were provided with:
Slovic, Monahan, and MacGregor, “Violence Risk Assessment,” 287.

The only difference was:
Slovic, Monahan, and MacGregor, “Violence Risk Assessment,” 287.

Those who considered the risk:
Forty-one percent of those who considered the risk of violence as a frequency determined that Mr. Jones should not be released versus 21 percent of those who considered the risk of violence as a probability. Slovic, Monahan, and MacGregor, “Violence Risk Assessment,” 288.