Systemic Triage: Implicit Racial Bias in the Criminal Courtroom

Yale Law Journal, 2013

Despite the promise of Gideon, providing "the guiding hand of counsel" to indigent defendants remains unmanageable, largely because the nation's public defender offices are overworked and underfunded. Faced with overwhelming caseloads and inadequate resources, public defenders must engage in triage, deciding which cases deserve attention and which do not. Although scholars have recognized the need to develop standards for making these difficult judgments, they have paid little attention to how implicit, i.e., unconscious, biases may affect those decisions. There is reason to suspect that unconscious biases will influence public defender decisionmaking due to generations of racial stereotypes specific to stigmatized groups and crime. This Essay urges legal scholars and practitioners to consider how implicit biases may influence the rationing of defense entitlements and suggests ways to safeguard against the effects of these unconscious forces.

2017

Racial bias does not have to be explicit to be felt. In the context of the criminal justice system, even implicit bias can have huge impacts on complainants and accused. While judicial impartiality and neutrality are hallowed principles in our judicial system, there is clear evidence of racial bias in judicial decision-making. The prevalence of racial bias throughout the criminal justice system creates the need for explicit considerations of race for the system to produce substantive equality, and for the legal system to apply to and protect all people equally. Sexual assault is an area of law where complainants likely face implicit racial bias. Further, it is possible that there is less perceived societal harm to the sexual assault of minorities. If racial complainants are less likely to be believed, or are less sympathetic complainants, then the criminal justice system will fail to adequately deter crimes against minorities. This thesis asserts that counsel should be advancing the topic of race in the context of sexual assault due to its racialized nature and the pressing need to find a way to reduce its prevalence as the current approach has failed to do over the last ten years or more. If the topic of race is raised, it allows the judge to attempt to counteract any of his potential implicit biases, as well as factor race into his considerations regarding deterrence. The current erasure of race in sentencing impacts both complainants and accused, and may limit the criminal justice systems ability to effectively deter crime. Ultimately, the thesis suggests judges record the race of the accused and complainant in their sentencing decisions for sexual assault. This data on the racial demographics of sexual assault convictions will allow researchers to measure judicial racial bias in sentencing, as to identify whether there is explicit, implicit and/or structure inequality in the criminal justice system such that sexual assaults involving minority complainants are less likely to result in convictions. iii Lay Summary Terms like "rape myths" and "justice gap" have been used to discuss the phenomenon of the under reporting of sexual assault, as well as the inability of the criminal justice system to effectively deal with the sexual assault epidemic in our society. In the context of judicial decision-making, the use of "rape myths" and the resulting "the justice gap" are seen as bias against sexual assault complainants. Rarely discussed, however, is the impact of racial bias, and how this may relate to "rape myths" and "the justice gap". This thesis demonstrates why racial considerations are particularly important in the context of sexual assault, focusing on the impacts of racial bias on complainants. Acknowledging race in judicial decisions would reduce the justice gap for sexual assault by improving the deterrent effect of criminal sentencing and would ultimately improve public confidence in the judiciary's ability to protect all women.

2012

Abstract: The disproportionate incarceration of minorities is one of the American criminal justice system's most established problems. In spite of a societal backdrop in which descriptive claims of a “post-racial” America prosper, the problematic racial dynamics of ...

Law and Human Behavior, 2022

Objectives: In October 2021, APA passed a resolution addressing ways psychologists could work to dismantle systemic racism in criminal legal systems. The present report, developed to inform APA's policy resolution, details the scope of the problem and offers recommendations for policy and psychologists to address the issue by advancing related science and practice. Specifically, it acknowledges the roots of modern-day racial and ethnic disparities in rates of criminalization and punishment for people of color as compared to White people. Next, the report reviews existing theory and research that helps explain the underlying psychological mechanisms driving racial and ethnic disparities in criminal legal systems (e.g., endorsement of negative stereotypes, explicit and implicit bias). It also elucidates how racially disparate treatment generates downstream negative mental health consequences for people of color. Conclusions: Evidence-based recommendations to work toward eliminating systemic racism in the criminal legal systems include (a) rigorous measurement and analysis of disparities; (b) targeted changes in policy, practice, and law; (c) increased access to culturally aware and competent services and interventions; (d) the proliferation of education and training programs regarding racial bias; (e) increased attention to issues of intersectionality; and (f) promotion of diversity and fair-mindedness among criminal legal actors.

2016

Researchers have theorized how judges’ decision-making may result in the disproportionate presence of Blacks and Latinos in the criminal justice system. Yet, we have little evidence about how judges make sense of these disparities and what, if anything, they do to address them. By drawing on 59 interviews with state judges in a Northeastern state, we describe, and trace the implications of, judges’ understandings of racial disparities at arraignment, plea hearings, jury selection, and sentencing. Most judges in our sample attribute disparities, in part, to differential treatment by themselves and/or other criminal justice officials, whereas some judges attribute disparities only to the disparate impact of poverty and differences in offending rates. To address disparities, judges report employing two categories of strategies: noninterventionist and interventionist. Noninterventionist strategies concern only a judge’s own differential treatment, whereas interventionist strategies conc...

International Journal for Court Administration

The New York State Court System (NYSCS), like other court systems, faces diverse issues regarding race, bias, diversity, and inclusion, as the judicial interpretation of justice sometimes differs from the societal interpretation. What the courts interpret as justice is not necessarily what some societies understand as justice. A gap can lie between the courts and society regarding the court's roles in administering justice to eliminate social vices like implicit bias, racial, sexual, cultural, or any form of discrimination/stereotypes. There can, similarly, be a misconception about just and fair-or 'meaningful justice' as the courts define it. 1 George Floyd's death heightened national outcries, going beyond the United States, focused on racial bias and discrimination, diversity, and inclusion. The arrest, prosecution, and conviction of principal actors in the killing of George Floyd intensified divisions between those seeing him as a victim of police brutality and those focusing on his prior criminal history and the incident that led to his death, namely the alleged passing of a false $20 note in a local store transaction. This difference in perceptions of 'right' and 'wrong' according to notions of justice could be seen as raising social misconceptions about courts. It could lead to a loss of public/society's confidence in the court system and judges' roles in society, which widens the gap between courts and society.

Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with behavioral realism. The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the Article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.

Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with behavioral realism. The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the Article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.

2015

The George Washington Law Review, 2015

In their article, “Reasonable but Unconstitutional: Racial Profiling and the Radical Objectivity of Whren v. U.S.,” Professor Chin and Mr. Vernon not only provide a withering critique of the U.S. Supreme Court’s unanimous decision in Whren v. U.S. but they also present novel doctrinal arguments for reversing its problematic dicta that racial discrimination is constitutionally reasonable. Their arguments are compelling and require no extension of current doctrine. For instance, Chin and Vernon embrace Whren’s endorsement of pretextual traffic stops as long as those stops do not involve racial profiling. Additionally, the authors implicitly embrace a central premise of the Courts’ current race jurisprudence, which is that only conscious racism violates the Constitution. Thus, their framework allows the Court to reach the identical outcome in Whren, without sanctioning race-based policing. However, this Response argues that there are some disadvantages to relying upon the Court’s exist...