'The Peter Parker Problem': With great (judicial) power comes great responsibility

What does that Spiderman story have to do with judges setting bail? From a psychological perspective, as it turns out, everything!

Since everyone is looking for diversions while American society shuts down over the coronavirus, here's an interesting article I read recently that merits Grits readers' attention. Check out "The Peter Parker Problem." The premise: After Peter failed to help police apprehend a criminal who ran right past him and later killed his uncle,

Peter is sure he caused his uncle’s death. Even though this seems natural, stop to consider whether it is. First, Peter emphasizes his agency in not stopping the thief. But what about the agency of the thief? The thief decided to rob Uncle Ben, the thief decided to kill Ben when the robbery went wrong, and the theif planned to make his money through theft. Second, Peter overweights the likelihood of the thief killing his uncle because it happened. But how was Peter to know, as the thief was running down the hall, that the thief would kill anyone, much less his uncle? There was no particular evidence of violence at the time, and thieves as a class are not automatically violent. Third, Peter’s sense of responsibility is amplified by proximity (“I was so close”)—he would feel differently if he had been far away in place and time (seeing the thief run away from a distance, for example, even if he could have caught the thief if he sprinted). Peter thinks about the tragedy in terms of simple, one-to-one causes (“If only I had stopped him”) rather than many-to-many or other problems (e.g., “If only we had better gun control”). He thinks about the cause in terms of choices (dispositionism—e.g., “If I only I had done something”) rather than situational factors that would be equally effective (“If only the elevator had been out of order, or if only Uncle Ben had gotten food poisoning last night and not gone out of the house today, or if only he had left five minutes later or five minutes earlier, or if only the thief had killed someone else or Uncle Ben had been killed by a different perp.”).

Santa Clara University law professor David Ball argues (citations omitted) that

Criminal law is rife with examples of this kind of “just in case” thinking. California prison officials denied medical parole to a quadriplegic man on the grounds that he posed a threat to public safety, just in case he were to “possibly use his vocal cords, which are not paralyzed, to order crimes, maybe attacks on state employees.” Police officers stopped and frisked hundreds of thousands of mostly black and brown people in New York just in case some of them had weapons, even though the overwhelming majority didn’t. The United States Supreme Court held that it was reasonable to strip search someone wrongly arrested on a bench warrant because he could have been smuggling drugs—just in case, that is, he anticipated both the clerical error and the timing of the enforcement of the bench warrant and secreted drugs in his rectum. A well-known law professor argued that we should allow torture just in case we come across a situation where we know that there is a bomb, we know that it is going to go off soon, we know that the person we’ve detained knows all about it and won’t tell us unless we torture him—but, despite knowing almost everything about the scheme, we just don’t know where the bomb is. (Sometimes the claims of safety risks, particularly in a carceral context, are even less developed.) And if these harms never arrive? We got lucky—this time.

This article confronts a question which has thwarted many a reformer, particularly related to pretrial detention and parole decisions: what if risk assessments by actors in the justice system are really "psychological, not actuarial? What if different decisions about these populations (and the differences in how we view them) are not based in different assessments of risk, but about the psychological heuristics we use to analyze them?"

The current system, argues Ball, doesn't so much assess risk as "invoke" it as an excuse to ignore other risks. For example, the risk that "Detainees get longer sentences, they plead guilty more often, they are at risk for violence in jails if they suffer from mental illnesses and, even if the case is dismissed, they suffer economic losses from foregone work during detention. Though these losses are substantial, they are less salient. It is harder to keep them front of mind."

The article explores experimental research by behavioral psychologists on regret and counterfactuals to provide a compelling case for what's really driving high rates of pretrial detention.

Good stuff. Give it a read.