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Unconscious Racial Bias Taints the Legal System

A recently published analysis finds reasons for concern at three levels of the legal process.
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(Photo: aerogondo2/Shutterstock)

(Photo: aerogondo2/Shutterstock)

In the wake of the deaths of Michael Brown and Eric Garner, angry demonstrators and subdued academics alike have charged that the American legal process is tainted by racism. But polls suggest most white Americans don’t see things that way, leading to something of a standoff.

Putting aside the details of these individual cases, the charge of systemic bias cries out for evidence. As a recently published paper—one written before the latest expressions of outrage--points out, the behavioral sciences provide just that.

In an overview of recent research, Tufts University psychologists Samuel Sommers and Satia Marotta write that, while overt prejudice is surely a factor in some cases, “unconscious—or implicit—racial biases can also taint legal decision-making.”

“All of us, regardless of personal ideology or professional oath, are susceptible to such biases, even when making life-and-death decisions,” they write in the journal Policy Insights From the Behavioral and Brain Sciences.

"Of the more than four millions stops the NYPD conducted between 2004 and 2012, 52 percent were of African-Americans and 31 percent of Latinos, despite respective general population rates in the city of 23 percent and 29 percent."

Sommers and Marotta examine the way unconscious racism influences decision making at three levels of the legal process: policing; the decision of district attorneys to press charges; and the conduct and outcomes of criminal trials.

Starting with the police, the researchers cite the U.S. District Court’s 2013 ruling on the New York Police Department’s “Stop and Frisk” policy. “Of the more than four millions stops the NYPD conducted between 2004 and 2012,” they write, “52 percent were of African-Americans and 31 percent of Latinos, despite respective general population rates in the city of 23 percent and 29 percent—and although stops of African-Americans and Latinos were actually less likely to yield weapons or contraband than were stops of whites.”

That same data showed that “use of force occurred in 23 percent of stops of African-Americans and 24 percent of stops of Latinos, but in only 17 percent of stops of whites.” This pattern was found in spite of the fact that “African-Americans and Latino New Yorkers were actually less likely to possess contraband than their white counterparts.”

The researchers point to two ways to address this issue: Using hiring decisions to shape “more diverse police forces,” and making changes in how young officers are trained. “Experience with simulated building searches, in which officers interact with actors, some of whom ‘attack’ using weapons with non-lethal ammunition, does predict reduced bias,” they report.

Conscious or unconscious racism also plays a role in how a black person is treated once arrested. The researchers point to a 2008 study that found “prosecutors more likely to charge capital murder, and seek the death penalty, in cases with black defendants and/or white victims. This, combined with the fact that more than 90 percent of all guilty verdicts result from plea bargains and not juries, demonstrates a clear need for further study of how race shapes attorney perceptions and decision-making,” Sommers and Marotta write. They report there is “a dearth of data on prosecutorial discretion."

“Race can influence what happens in court as well,” the researchers add, noting a 2005 analysis of 34 studies that finds “a small, but significant, effect for racial bias in both verdict and sentencing decisions.”

In addition, a 2008 study found that “in almost 200 actual juries in felony cases with black defendants ... the greater the percentage of whites on a jury, the more likely it was to convict a black defendant. This association persisted regardless of crime type, or strength of prosecution case.”

One obvious way to counteract this apparent bias, the researchers write, is more racially diverse juries. They note that, in a 2006 study, whites on racially mixed juries were “more skeptical of a black defendant’s guilt” than those on all-white juries.

In addition, a 2009 study found that “judges themselves can effectively compensate for implicit bias when reminded and motivated.” Sommers and Marotta note that efforts are underway in some jurisdictions “to tailor (jury) instructions specifically to curtail unconscious bias.”

So there are reasonable grounds for optimism that unconscious racism can be reduced, if not eliminated, in the criminal justice system. But doing so will take time, commitment—and an acknowledgment that, no matter how noble our intentions, none of us are totally free of bias.