Book Review: Failed Evidence, by David Harris

Failed Evidence: Why Law Enforcement Resists Science, by David Harris, Professor of Law at the University of Pittsburgh, concerns one of the recurrent themes of this blog—the fact that sound social science research seldom has much effect on public policy. (Check out his seven short videos dealing with main themes of the book.)

Our legal system should be undergoing a crisis of confidence as we continue to discover the number of innocent people who have been sent to jail. DNA evidence has resulted in over 300 exonerations so far, but DNA is only available in 5% of criminal cases, suggesting that we are seeing only the tip of the iceberg. Dr. Harris reviews research which casts doubt on current practices in the three areas that account for the greatest percentage of exonerations: incorrect eyewitness identifications, inaccurate forensic testing, and false confessions.

In all three areas, current practices are deeply flawed, and research suggests straightforward remedies that would greatly decrease errors. Eyewitnesses are usually shown lineups and photospreads using procedures that encourage them to pick the suspect who most closely resembles the perpetrator. The administrator knows which person is suspected and gives positive feedback if the suspect is chosen, which increases the eyewitness's certainty. Forensic tests, i.e., identification of fingerprints, firearms, hair and blood samples, etc., are inherently subjective. The reliability that is sometimes claimed for them occurs only when the second examiner is told in advance of the first one's results. False confessions occur because police question suspects for long periods of time under extreme pressure, and are permitted to lie about evidence. This produces fatigue and confusion, and some innocent suspects confess only to put an end to this painful situation. Because the idea that an innocent person might confess is counterintuitive, I've included this 10 minute video from Saul Kassin which gives further explanation of how it occurs.

Dr. Harris reviews the reasons police officers give “in their own words” for their fierce resistance to such evidence and the remedies they imply: they are too expensive, that they will allow guilty people to go free, the research is less valid than their own personal experience, etc. The most perversely amusing example of police intransigence is their inconsistent reaction to DNA evidence depending on whether it implicates or exonerates the defendant. Since their objections are easily debunked, he speculates about the real reasons for resistance.

These are divided into two categories. Cognitive reasons focus on the thought processes of the individual officer. An example is cognitive dissonance, which occurs when police are told that their past behavior may have sent innocent people to jail. This possibility is vigorously denied, and they attempt to bolster the effectiveness of current practices. Institutional reasons cite the context in which police and prosecutors work. Police officers are evaluated on the basis of the number of arrests they make and prosecurors are judged by their conviction rate. There is nothing in the system that rewards either of them for doing justice by releasing an innocent person.

Dr. Harris then lists 16 recommendations for reform, i.e., videotape all police interrogations from beginning to end, and makes some suggestions for how to make these changes happen. For example, cognitive dissonance may be minimized by focusing on the future rather than past injustices. It's at this point that Dr. Harris begins pulling his punches by compromising in advance with what he believes to be implacable resistance from the law enforcement community.

For example, the following one hour presentation by Dr. Gary Wells explains the process of relative judgment, and why we should replace simultaneous lineups, which result in identification of the suspect who most resembles the perpetrator, with sequential presentations in which the witness makes an independent judgment about each suspect. A meta-analysis of relevant studies confirms that sequential lineups greatly reduce incorrect identifications. However, they also slightly reduce correct identifications, since the simultaneous lineup results in a small percentage of “lucky guesses.” The loss of those lucky guesses is interpreted by law enforcement as letting innocent people go free, which generates resistance. Unfortunately, Dr. Harris's response to this dilemma is to suggests that this recommendation—in my judgment, the most important one of all—be optional, since it is unlikely to be accepted anyway.

By the way, here is the soon-to-be-released study Dr. Wells refers to in his lecture. The upcoming Supreme Court case he mentions did not have a satisfactory outcome.

It's clear that Dr. Harris is not optimistic about the prospects for reform. (Dr. Wells is much more optimistic.) He gives many examples in which police and prosecutors, working through their professional organizationals, have easily defeated reform attempts. The primary victims, innocent people wasting away jail, have no political clout. He ends the book with a chapter in which he presents only three cases in which meaningful reform has taken place. (The Innocence Project lists other examples.) In two of these cases, a conservative politician converted to the cause of reform and was able to use his credibility as a strong advocate of law and order to make it happen. If advocates as sympathetic to police and prosecutors as Dr. Harris are unable to bring about bottom-up change through persuasion, the best hope for social scientists may be to go over their heads, either through federal legislation or court decisions, such as the Miranda ruling, which law enforcement personnel are required to obey.

The Myth of the Conservative Voter

The obvious fact that majority public opinion is unable to prevail in Washington has set off a flurry of research on why the political system is so unresponsive. The latest contribution comes from David Broockman of the University of California, Berkeley, and Christopher Skovron of the University of Michigan. They sent surveys by mail and email to all of the 2012 candidates for state legislatures in the country. The response rate was 19.5% (1907 candidates), which is about double the typical response rate for mail and email surveys. The candidates were asked to estimate what percentage of their constituents would agree with the following statements:

1. Same sex couples should be allowed to marry.
2. Implement a universal healthcare program to guarantee coverage to all Americans, regardless of income.
3. Abolish all federal welfare programs.

They were also asked their own opinions on the first two issues. A new technique called multilevel regression and poststratification (MRP) was used to estimate the attitudes of the citizens in each legislative district. It would obviously be very costly to survey the entire voting population each of the country's 6500 state legislative districts. MRP uses national survey data to determine level of agreement with the three statements based on education, race, gender, social class, religiosity and having voted for Obama. The percentage of people in each of these demographic subgroups in each legislative district is determined from the 2010 census. This generates an accurate estimate of the opinions of the people in each district. Although indirect, this method has been validated against real survey data.

There were positive correlations (rs = .43 to .51) across districts between the candidates' estimates and actual opinions, but they are not very impressive, accounting for only about 20% of the variance. The interesting thing about the data is that the candidates' perceived their constituents to be about 10% more conservative on these issues than they actually were, a difference roughly equal to the average difference between voters in California and Alabama. Stated differently, 60% of citizens would have to favor a liberal policy in order for their legislators to perceive them as a majority.

The responses were analyzed separately for liberal and conservative candidates based on their own answers to political questions. These data are shown in the table above. The horizontal axis represents the actual opinions in each district, and the vertical axis is the politicians' estimates. The black line is perfect accuracy. Anthing below it means the politicians are overestimating their constituents' conservatism. The blue line is the estimates of the liberal politicians, and the red line, the estimates of the conservatives. Although both groups believed their constituents were more conservative than they actually were, the conservatives seemed to be living in another world. They were off by over 20%. Nearly half the conservative candidates believed their district was more conservative than the actual opinions of the most conservative district in the entire country.

These findings may help us understand differences in the personal style of politicians. The well-known tendency of liberal politicians not to stand up for their beliefs contrasts sharply with the overconfidence of conservatives. Both may be explained by their fundamental misperceptions of public opinion.

Candidates were surveyed again after the election, but there was no evidence that they had learned anything. They were no more accurate than before, and their accuracy was unrelated to any of the activities they reported during the campaign, i.e., time spent talking with voters.

The first question about these data is their generalizability. The study should be replicated using federal and local as well as state candidates, and with a wider variety of issues. However, the differences are quite large, so I assume these findings are robust. How can they be explained? Broockman and Skovron do not speculate other than to suggest that political elites are not motivated to learn the attitudes of the people they represent.

Before giving them a political spin, we must be sure these errors are unique to politicians. It's possible that a random sample of the population might make errors of a similar magnitude and direction. If so, the data represent cultural influences to which we are all exposed. For example, the corporate media present an almost unrelentingly conservative view of the American public opinion, insisting that this is a “center-right” nation and referring to right-wing politicians as “moderates.” These data may reflect back what the media inaccurately tell us. The liberal-conservative difference may mean that the media outlets preferred by conservatives are even less accurate than those preferred by liberals.

Suppose the general public does not make errors that are comparable to these candidates—that is, these biases are unique to politicians. If these politicians are themselves more conservative than the general public, there might be a false consensus effect. False consensus refers to the tendency to assume that other people's opinions are more similar to our own than they actually are, to project our own beliefs onto others. There is reason to believe that political candidates are more conservative than the people they seek to represent, since so much money is required to run for office—either their own money or funds obtained from wealthy donors.

This shades into a second possibility, which we might call the “loudest voices” hypothesis. When considering this hypothesis, remember that money talks too. In fact, the Supremes have ruled that money is speech.

Suppose there are two types of political issues, economic and social. Economic issues are those issues that have major economic consequences, even they are sometimes debated using non-economic arguments. Therefore, they include not just taxation and public spending, but issues like climate change, health care, and foreign policy, including debates over war and peace. In the present study, health care and welfare are economic issues.

When the issue is economic, the loudest voices politicians are exposed to are those of campaign donors, whose views are well to the right of the general public. In fact, politicians may spend much of their time inside a bubble filled with rich contributors and corporate lobbyists. If you spend most of your time talking to these people, you are not likely to arrive at an accurate perception of what the general public thinks.

Social issues are those that have only minor economic consequences, such as abortion, gay rights and gun control. Although they are sometimes called “sideshow issues,” they are as important to some people as economic issues. For example, if you are pregnant, whether you have access to a safe, legal abortion is a matter of life and death. Social issues are represented in this study by gay marriage.

When the issue is social, political pressure comes primarily from grassroots organizations. Sadly, the loudest voices the politicians hear almost invariably come from the right. Conservatives are better organized, perhaps because they hold their attitudes with greater strength. Of course, what we call “grassroots” is sometimes actually astroturf. These groups receive financial and logistical help from the wealthy, since rich people know that they benefit when conservative candidates are elected.

Therefore, the loudest voices hypothesis suggests that, regardless of whether the issue is economic or social, the candidates hear mainly conservative voices. This is especially true of candidates who are themselves to the right of center. You can get a pretty distorted view of public opinion that way. Ask Mitt Romney.

Divide and Conquer

Dr. James Burnham of Duquesne's Business School published a mean-spirited article in the Pittsburgh Post-Gazette in which he points out that the income of Americans over 65 has increased slightly over the past 30 years, while the income of younger Americans has declined. This is illustrated in the chart below. He refers to these trends as “generational theft,” and attributes it largely to the political influence of the American Association of Retired Persons (AARP). The article may make you angry, but if you are going to read this post, you should read Burnham's article first.

The article reminded me of the story of the king who demanded 20 pieces of gold from every member of Group A and 10 pieces of gold from every member of Group B. His spokesman then turned to Group A, pointed at Group B, and asked, “You're not going to let those greedy bastards get away with that, are you?”

Let's be clear about the sources of the “deep-seated fiscal problems” that Dr. Burnham says we must all share the pain of dealing with. The deficit is largely the result of (1) two ill-advised (as well as illegal) foreign wars that were funded with credit cards; (2) a tax cut from which most of us benefitted slightly, but the bulk of which went to the wealthy; and (3) the largest recession since the Great Depression, which was brought on by reckless speculation and some outright fraud committed by our largest banks and investment firms. And how goes the recovery? According to economist Emmanuel Saez, between 2009 and 2011, the incomes of the wealthiest 1% of Americans increased by 11.2%, while the incomes of the remaining 99% of us declined by .4%.

Rather than asking where the money went and how to get it back, Dr. Burnham adopts the mantle of the king's spokesman and applies the divide-and-conquer strategy. The old, he says, are robbing the young. His argument is unpersuasive. While the incomes of older Americans have increased slightly, the recession has had a devastating impact on Americans' retirement savings, causing some of them to delay retirement (which ironically shows up in Burnham's chart as increased income for people over 65).

Burnham's supports his claim that young people's incomes are declining by citing the wages of 15- to 24-year-olds. That decline is in part a result of our failure to raise the minimum wage to keep pace with inflation. Even if it could be shown that the wages of people under 40 are declining, I doubt that the AARP had anything to do with it. Our young people have had the misfortune of entering the labor market after the 1% had consolidated their hold on all branches of government. Through their campaign contributions and lobbying activities, they were able to implement policies that shipped good jobs overseas, severely damaged unions, and, in general, benefitted themselves at the expense of everyone else. As a result, while worker productivity has increased, wages have stagnated.

Burnham is correct in pointing out that younger Americans have been saddled with an increasingly large burden of college loan debt. This has resulted from a massive shift in the cost of higher education from the government to the student. This shift includes reductions in government support for higher education (especially at the state level) and fewer grants and interest subsidies for college students. Meanwhile the federal government allows banks to charge highly profitable rates for student loans, while guaranteeing them against the risk of default. It is the banks that have benefitted most from this policy shift, not retired people.

Suppose retired Americans took Dr. Burnham's advice and voluntarily accepted major cuts to Social Security and Medicare. Where would that money go? Would it be redistributed to young people in the form of higher wages or college grants-in-aid? Don't hold your breath. If it were used to pay down the deficit, it would be redistributed largely to the 1%.

Since I wrote most of this post (three days ago), my former IUP colleague Charles McCollester has written a reply to Burnham that is much more persuasive than what you just read. I highly recommend it.

Do We Still Need the Voting Rights Act? (Does a Bear Shit in the Woods?)

Last week, at the very moment President Obama was unveiling a statue of Rosa Parks at the Capitol, the conservative majority on the Supreme Court was expressing its determination to undo one of the signature achievements of the civil rights era—the Voting Rights Act (VRA) of 1965, which prohibits “denial or abridgement of the right of any citizen of the United States to vote on account of race or color.”

Dick Gregory at a Voting Rights Act rally on February 27
Photo by SEIU International

The challenge, Shelby County v. Holder, is to Section 5 of the VRA, which requires all or part of 16 states with a history of racial discrimination to clear in advance with the Justice Department any changes in their election laws that might affect the right of racial minorities to vote. Localities that have not had a VRA challenge to their laws for ten years can “bail out” from Section 5—that is, they are no longer required to obtain preclearance. Like the rest of the country, they come under the default option, Section 2.

The good news about Section 2 is that it only requires the plaintiff to prove a discriminatory effect, rather than discriminatory intent. Discriminatory intent is almost impossible to prove, since elected officials seldom publicly admit an intention to violate the law. But the bad news about Section 2 is that you can only challenge voting discrimination after the fact, when the damage has already been done. It is the preclearance provision in Section 5 which gives the VRA its real power by shifting the burden of proof onto those who would change the law to demonstrate that the change does not have discriminatory impact.

Shelby County v. Holder was brought forward by the Project on Fair Representation, a conservative legal organization that is funded exclusively by Donors Trust, which also contributes to the American Legislative Exchange Council (ALEC), Americans for Prosperity, and Americans for Tax Reform. While contributions to Donors Trust are anonymous, its supporters are suspected to be a who's who of wealthy conservatives, including the Koch brothers. Project on Fair Representation received $1.2 million from the Donors Trust between 2006 and 2011.

Shelby County, Alabama, is challenging Section 5 on two somewhat inconsistent grounds. First, they are saying that voting discrimination against African-Americans is no longer a problem in the South. It seldom happens. Secondly, they are saying that this thing that seldom happens also happens in the rest of the country as well, and therefore, Section 5 discriminates against the states that are subject to its provisions.

Both of these claims are empirical questions. How many cases have been brought against states and communities under the VRA from 1965 to the present? Has this number changed over time? How does the number of cases among the regions subject to Section 5 compare to the number of cases in the rest of the country? The only non-empirical question raised by the case is how many cases of racial discrimination would be few enough to justify abandoning Section 5.

The VRA has been reauthorized by Congress four times, most recently in 2006, when it was renewed for 25 years. At that time, Congress held 21 hearing over 10 months, compiling 21,000 pages of testimony on voting discrimination. The VRA renewal passed by a vote of 98-0 in the Senate and 390-33 in the House, suggesting that Congress at least was persuaded that will still need the VRA.

The best source of data on violations of the VRA is the research of Morgan Kousser, who has compiled an exhaustive list of 4,141 voting rights cases. Of these, 90%, and 93.4% of successful challenges (those which resulted in a judgment of discrimination), occurred in jurisdictions covered by Section 5. This is not surprising, since you can only bring a Section 5 challenge in those localities. More persuasive, however, is the fact that 83.3% of the successful Section 2 cases, which can be filed anywhere in the country, came from jurisdictions subject to Section 5 oversight. (By the way, there have been 20 violations of the VRA in Shelby County since 1975, the most recent having occurred in 2008.)

Chief Justice Roberts turned the relatively clear question before the Court into a confusing abstraction by asking the Justice Department lawyer whether he thought “the citizens in the South are more racist than citizens in the North.” (Roberts was referring to individual racism, or racial prejudice, rather than institutional racism.) There are a number of reasons why this is the wrong question.

• Individual racism is difficult to measure. It can be measured in several different ways which vary in their subtlety. In general, the more transparent the question and the more consciously controllable the answer, the less prejudice there will appear to be.
• Prejudice is an attitude while discrimination is a behavior. For a variety of reasons, social psychologists have found the correlation between attitudes and behavior to be fairly weak. In other words, people say one thing and do another.
• It is not the behavior of all citizens of the South or North that is at issue. It is the behavior of their elected representatives. Citizens influence their representatives indirectly, and often only after the fact.
• Voting discrimination can be motivated by many other goals in addition to personal prejudice, i.e., a desire to obtain a partisan advantage for one's political party.

Now would seem to be a particularly bad time to overturn Section 5. The increasing racialization of politics since the 2008 election has resulted in a greater concentration of the most prejudiced Americans in the Republican party, the majority party in most of the Section 5 jurisdictions. The ability of Republicans to win national elections is threatened by demography—by the greater number of young people and minorities in the voting pool. As a result, they have been attempting more sophisticated voter suppression methods. As Ari Berman reports, six of the nine states fully covered under Section 5 passed new statewide voting restrictions affecting minorities after 2010: voter ID laws (Alabama, Mississippi, South Carolina, Texas and Virginia), restrictions on voter registration (Alabama and Texas), and limits on early voting (Georgia).

Only one third of the noncovered jurisdictions have passed voter suppression laws since 2010. Of course, that's still too many, as Pennsylvania residents know all too well. One of the more reliable ways of discouraging voting, creating long waiting lines at the polls, disproportionately affects Black and Latino voters, and to my knowledge has never been challenged by the VRA. If anything, we need to expand the scope of Section 5 of the VRA to include all the states and to include all strategies that have a discriminatory effect on voting.

Post Script

By now, you have probably heard about Justice Scalia's reference to the VRA as “the perpetuation of racial entitlement.” This was initially interpreted to mean that voting is, for Blacks at least, a privilege rather than a right. However, if we look at his remarks in context, a different agenda emerges.

Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process. I don't think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless—unless a court can say it does not comport with the Constitution. . . .It's—it's a concern that this is not the kind of a question you can leave to Congress.

Scalia seems to be saying that Congress cannot be trusted not to pander to political correctness. Therefore, it is up to wiser men like himself to overrule their judgment. This is a strange argument coming from someone who has previously argued against judicial activism, or legislating from the bench. But Scalia has never let the Constitution get in the way of his political ideology. In this respect, he has become an even greater embarrassment to the country than Justice Thomas, who at least has the good sense to keep his mouth shut.

Hugo Chavez (1954-2013)

Photo by The Guardian