Week 12: Guilty Offenders AND Wrongful Convictions

Question 1

Aims of Incarceration

Answer 1

• More than just punishment
• 5 main goals
  1. incapacitation
  2. retributive justice
  3. deterrent sentencing
  4. rehabilitation
  5. restorative justice

Question 2

Incapacitation

Answer 2

• Aims; to reduce criminal conduct by means of imprisonment or by isolating offenders from the rest of society so that they are unable to commit criminal offences

Applies to home detention also

Two types
1. Collective incapacitation; crime prevention accomplished through sentencing laws that are specific to the crime committed.
Idea is that society should be protected from people who commit a crime for x long

2. Selective incapacitation; prevention of crime through the physical restraint of persons selected for confinement on the basis that they personally will engage in forbidden activities unless physically restrained from doing so.
   - person based
   - involves/relies on a risk assessment being performed
   - considers static and dynamic factors

Question 3

Retributive Justice

Answer 3

Punishment based
- is motivated by the theory. of ‘just deserts’ and dictated by moral outrage
- Not concerned with future outcome, merely that the punishment should fit the crime committed
- restributive justice theories have given rise to victim participation in sentencing (ie. victim impact statements)
- when asked to rank the philosophies they believe should guide sentencing, retribution ranks very highly
(ie. rot in a cell and think about what you’ve done)

This goal drives the argument for lighter sentences based on factors outside of a perpetrators control (eg. genes, gang membership, poverty etc).

Question 4

Deterrent Sentencing

Answer 4

Based on the idea that knowing the punishment for a crime should prevent the offender from doing the crime or prevent future instances of crime

1. Specific Deterrence; Aims to discourage a particular offender from committing crimes
   - looks at a particular offender. They serve a jail sentence and are less likely to re-offend due to a bad prison experience
2. General Deterrence; aims to discourage potential offenders from committing crimes (ie. the gen pop not committing a crime to avoid prison)

Question 5

Does deterrent sentencing work?

Answer 5

• There is emperical uncertainly as to the extent to which punishment prevents future offending in individuals
• to be successful, general deterrence involves emphasising both the punishment and the likelihood of apprehension - if you think you’ll get away with it you won’t be deterred
• Given that offenders underestimate the chances of being caught, high visibility enforcement is needed (eg. road-side breath testing)

Question 6

Rehabilitation

Answer 6

Emphasises changes that can and should be brought about in the criminal’s behaviour in the interests of the community and the criminal
- based on the notion that we can identify and change the social, psychological, psychiatric or other factors outside a person’s control that may have wholly or partially contributed to the criminal behaviour

Question 7

Does Rehabilitation Work

Answer 7

Cognitive-Behavioural Therapy (CHT) - based on the idea that how we think, how we behave and how we feel all interact together and that restructuring thinking can therefore influence these factors and develop more pro-social behaviours

• CBT-based rehab programmes are the most successful for offenders
• important components appears to be problem solving skills, interpersonal skills, social learning and communication skills
• CBT programmes have been successful in treating juvenile offenders, sex offenders and violent offenders

Question 8

Restorative Justice

Answer 8

Aims to re-establish victims, offenders and communities following an offence –> repairing and restoring justice
- ie. Rangitahi courts; Marae, huia, people helping judges to find better punishments that consider the offenders integration with their community culture and identity to restore justice

• uses sentencing circles
• uses indigenous courts
• considers reintegrative shaming (eg. family group conferences in NZ) – where everyone sits down and discusses their experience (both the victims and offenders families are there)

Question 9

Does restorative justice work?

Answer 9

Restorative justice programmes appear to be successful in decreasing recidivism.
For victims, desirable outcomes include; the offender being held accountable, being able to explain the harm caused, receiving an apology, and satisfaction with the way the case was handled

For offenders desirable outcomes include; understanding the harm to the victim, getting to apologise, and satisfaction with the way the case was handled

Question 10

How is sentencing decided i.e. who does it

Answer 10

Many sentences are decided through plea-bargaining
- 90% in the US and ~30% in Australia

• Otherwise, in most criminal cases, sentences are decided by a judge
• unfortunately, judges are vulnerable to the same sorts of biases as jurors

Question 11

Judicial Biases

Answer 11

Male and black offenders are 50% more likely to receive harsher sentences than similarly situation women and white offenders

• the lowest sentences are given to female offenders by female judges
• one study showed that less than 10% of the variance in sentences could be explained by the facts of the case, whereas over half of the variance was explained by characteristics of the judge
• racial bias in NZ is prolific, despite us wanting to turn a blind eye. Maori are more likely to be pulled over, therefore more likely to be apprehended and more likely to end up in court.
  The UN has even acknowledged NZ’s racial bias

Question 12

The Death Penalty

Answer 12

Capital punishment applies in cases of aggravated murder in 27 states of the US
There are 24 states using it but 3 states have a moratorium in place
–> The use of this peaked at about the late 90s and early 2000s and have been falling - fewer people are being sentenced to death now

Globally the death penalty is used in 4 of the most populated nations (eg. Indonesia, china, India and the US) meaning that 60% of people globally live in a nation where the death penalty is used

Question 13

How effective is the death penalty in deterrence

Answer 13

There is conflicting evidence as to whether the death penalty is successful as a collective deterrent (aka general deterrent that puts off ‘would be’ criminals)

Some statistical models indicate that each execution saves 5 to 18 lives (through a combination of general and specific deterrence)

But there is concern is that the death penalty makes killing more acceptable to offenders - aka the brutalisation effect

Question 14

Brutalisation Effect

Answer 14

But there is concern is that the death penalty makes killing more acceptable to offenders - aka the brutalisation effect

Question 15

Deal Penalty Qualification

Answer 15

Looks at how we decide what jurors are used in death sentencing trials.

All death penalties are formed by jurors, not judges - but only death qualified jurors who meet the criteria

To be death qualified, jurors must be
1. Not completely and categorically opposed to the use of the death penalty (so open to it being used)
2. Not of the belie that the death penalty should be used in all capital murder cases (so not convinced it should be used always)

Ther is much concern as to whether people who are death qualified jurors are more prone to conviction that juries that include the ‘excludables’ (or non-qualified jurors) . ie even if death qualified jurors don’t sentence someone to death, are they more likely to deem people as guilty and sentence them to prison time

Question 16

Fitzgerald and Ellsworth (1984) study of death qualified jurors

Answer 16

Sampled 811 eligible jurors
- 64% of the sample supported the use of the death penalty
- 17% of the sample said they could never impose the death penalty (so were excludable)
Then asked the sample a series of questions about the justice system to see if death-qualified jurors have different views than non-death-qualified jurors

They found that death qualified jurors were more likely to;
- favour the prosecutions view
- mistrust criminal defendants
- favour punitive approaches towards offenders
- be more concerned with crime control than due process

Question 17

Cowan et al., 1984 Mock Trial Study

Answer 17

• showed a 2 hour murder trial re-enactment to 288 eligible jurors
• categorised jurors into death qualified and excludable and formed juries of either;
  1. all death qualified jurors
  2. a mix of death qualified and excludable jurors
  Then assessed the verdict of each jury type after watching the 2 hour trial re-enactment

The juries comprised of death qualified jurors (75) were significantly more likely to convict than juries including excludable (53%)

Additionally, mixed juries took a more serious approach in their deliberation, were more critical of eye witness testimony and were better able to remember the evidence

Question 18

Juror Instructions in Capital Cases

Answer 18

In death sentence cases, juors first ascertain guilt, then assess whether the death sentence in appropriate in a second decision.

When it comes to deciding if the death penalty is required, jurors are given complex instructions telling them they need to evaluate aggravating factors and mitigating factors in the crime

Several studies have shown these instructions are often not well understood by jurors and can lead to peripheral processing of evidence - ie. relying unduly on familiar factors to guide decision making (like racial and gender stereotypes)

Question 19

Aggravating and Mitigating Factors in Crime

Answer 19

Aggravating ;
- make the crime seem worse
- ie. a heinous murder
- using a hitman
- when the victim is vulnerable

Mitigating;
- make the crime seem more understandable and less cold blooded
- eg. impaired IQ in the perpetrator
- crime committed under duress
- mental health issues
- showing remorse
- history of abuse or neglect

Question 20

Lynch and Haney 2000

Answer 20

Potential Jurors either presented with a description of a black defendant/white victim murder case, or a white defendant/black victim murder case –> identical case facts

They were presented with death penalty instructions

• comprehension of instructions assessed, then assigned to high or low comprehension group

and the verdict was assessed (death penalty or no death penalty ) for each group

When comprehension of instructions was high, the race of the defendant/victim had no impact on whether or not death was recommended

When comprehension of instructions was low, race played a significant role in decision-making - a black defendant who was murdered, a white victim was almost twice as likely to be put to death than the other way around

Question 21

Common Biases in Thinking

Answer 21

1. Confirmation Biases = Seeking out evidence to confirm one’s beliefs while ignoring disconfirming evidence. (also applies to the way you interpret and remember evidence)
2. Cognitive dissonance = the feeling of discomfort that arises when two beliefs (of a belief and a behaviour) conflict with each other. We act to resolve the dissonance by altering either our belief or our behaviour

Question 22

Bottom-Up versus Top-Down Processing

Answer 22

Bottom-up = the outside data drives the system. Ifnormation is processed at higher and higher levels until a match is finally found with something in memory (only using the data presented)

Top down = occurs when the processing of bottom-up information is mediated by a variety of factors, such as prior experience and knowledge and the person’s beliefs and expectations
- can facilitate the processing of information by making it more efficient and faster
- it can also help us interpret ambiguous information or to fill in missing information

But do we want forensic scientists to fill in missing information with top-down processing

Question 23

Contextual Bias

Answer 23

= When a decision is influenced by factors outside the task at hand

Question 24

Madrid Bombing 2004

Answer 24

Trian bombings kills ~200 and injured many many more.
They found a bad with a detonator with fingerprints on it

Police believed it matched Brendan Mayfield, a lawyer they had been monitoring as he had recently represented a terrorist and converted to Islam.
His fingerprints and the ones from the bag were shown to 4 experts who may have been influenced by contextual bias
This is because they ;
1. were told the other experts found a match
2. Were given case details that may have biased their match
Brendan was not the perpetrator despite all 4 experts matching his fingerprint

Question 25

NAS Report 2009 View on Contextual Bias

Answer 25

The forensiv science disciplines are just beginning to become aware of contextual bias and the dangers it poses. The traps created by such biases can be very subtle, and typically one is not aware that his or her judgement is being affected

Question 26

Why is forensics vulnerable to contextual bias?

Answer 26

1. Evidence is often highly ambiguous; evidence is often incomplete, nothing is obvious, so we rely on top-down processing (and bias)
2. Lack of objective standards; there is a lot of subjectivity when it comes to what constitutes a match in say fingerprints. Even the same examiner at 2 points in time don’t agree with themselves
3. Numerous contextual cues; people experience a lot of biasing info in forensics settings (experts see nothing in isolation)
4. Perceptions of infallibility; Belief that physical evidence is always right - eg. CSI effect
5. Limited potential for mistakes to be immediately identified ; with expertise we learn better when we make mistakes but this doesn’t occur often in forensics where someone realised they made a mistake

Question 27

Dror, Peron, Hind and Charlton 2005 ; Matching fingerprints

Answer 27

Participants asked to decide if two fingerprints matched or not
There was 96 trials (pairs of fingerprints) to work with.
They first manipulated task difficulty
50% were non-ambiguous
50% were ambiguous (aka not enough info to make a decision)

Then they manipulated contextual information (control low emotion, high emotion and high emotion + subliminal)

Found that the number of matches on ambiguous prints increased when prints were shown with more emotional imagery

No effect of contextual manipulations when the task was non-ambiguous
When the task was ambiguous those in the ‘high emotion’ condition and the ‘high emotion + subliminal’ condition were more likely to find a match

Tells us that;
Contextual information actively biases the way gaps are filled, but was not sufficient to override clear bottom-up information

Question 28

Osborne and Zajac 2016 replication study

Answer 28

replicated dror and colleagues work who presented their blocks in all the same order to avoid contamination between blocks (by working up to the highest emotion images)
So, needed to test if this was an order effect, or whether participants were simply increasing their matches over time regardless of the emotional content.

This study repeated Dror et al with 200 undergraduate students (larger sample)
Had half the participants did the same study as dror et al
The other half received no contextual information in any of the blocks to see if their threshold for a match decreased over time

For unambiguous pairs, context had no influence on matches for either the control or experimental group.
In ambiguous trials, the control group did not show the same trend as experimental group (with experimental matches increasing with emotional context but not in the control group)

Results suggested hat dror and colleagues findings were due to emotional context, rather than people making more matches over time
Further evidence shows that the photos need to be crime-related for the effect to occur - emotional context on its own is not enough (no effect if shown not disaster victims)

Question 29

How are experts different to the standard population

Answer 29

• They filter. out irrelevant information
• they simplify things
• they utilize past experience
• they do things more quickly
• but unfortunately these things come at a cost (as less likely to notice issues)

Question 30

The cost of expertise

Answer 30

Automaticity increases
- decisions become less easily articulated (less able to explain why they made their decisions)
- experts have more defined expectations
- experts rely less on the data and more on other factors
- experts make more ‘snap’ judgements
- all these things can make experts more vulnerable to bias

But unfortunately;
- experts tend to be highly confident in their abilities
- experts tend to believe that they are immune to bias
(they don’t realise they’re susceptible)

Question 31

Options to mitigate expert bias and whether these work

Answer 31

• Awareness; doesn’t work - for example in visual illusions, we can be aware of the illusion but still don’t see the correct thing
• Formal bias appraisals for forensic scientists - test to see if they’re biased. This is also a weak measure as we often do things differently in a test than in real life so it may not accurately reflect things
• Sneaky bias appraisals for forensic scientists - doing a test where the expert doesn’t know they’re being tested. ie. airport security - but this isn’t always possible
• Peer review - cross-check results with others. ie. having multiple examiners check a fingerprint. however, presently cross-checking tends to only occur when the first expert finds a match and the first examiner gets to pick the second examiner (source of bias). Evidence suggests that with the present selection method only 1% of examiner 2’s disagreed with examiner 1. Then, 15 - 20% of the 2nd examiner disagreed with the first examiner when a fairer method is used