Tuesday, September 26, 2017

Andrea D. Lyon

Excerpted from: Andrea D. Lyon, Race Bias and the Importance of Consciousness for Criminal Defense Attorneys, 35 Seattle University Law Review 755 (Spring, 2012) (51 Footnotes omitted)

 

This Part will explore the foundational concepts behind racial bias in the criminal justice system. It will first clarify the definition of racial bias and how it manifests both explicitly and implicitly in our lives. Next, this Part will discuss who in the criminal justice system has racial bias-- prosecutors, judges, and defense lawyers alike.

 

A. What Is Racial Bias?

Although overt racism is still palpable in today's world, unconscious racism and biases often play a role in our everyday decisions. Racial biases might cause us to "treat members of different racial groups There are two different types of bias: explicit and implicit. Explicit bias refers to the kinds of bias that people knowingly express and sometimes embrace. This type of bias has prompted many procedural safeguards in the criminal justice system. In Batson v. Kentucky, for example, the United States Supreme Court held that when the defense believes the prosecution is exercising peremptory challenges on the basis of racial discrimination, the defense is permitted to object. If the trial judge finds a prima facie case of racially motivated peremptory strikes, the prosecution must then provide "race-neutral" reasons for the exclusions. This safeguard is meant to discourage the explicit bias expressed when a prosecutor removes people of color from the jury simply because of their race. While explicit bias like this does exist within the criminal justice system and is potentially the reason for some racial disparities, it is not the only culprit.

Implicit bias is also to blame, yet it is less visible. Usually, implicit bias is so subtle or ingrained that those who hold the bias are not aware of it. Implicit biases are especially difficult to discuss because even when we are in touch with them, we are unlikely to admit to or address our own implicit racial biases. This is challenging when addressing racial disparities in the criminal justice system because "[o]nce activated, implicit stereotypes and attitudes can negatively influence individuals' judgments and behaviors toward racial minorities in ways that they are unaware of and largely unable to Biases can influence one's interpretation of benign behavior, causing one to read identical behaviors differently based on the race of the actor.

Moreover, studies have shown that we engage in "race loyalty," assuming the best in people who match our race because of our desire to see our race (and ourselves) positively:

[A] decision maker is engaged in what [researchers] call a form of "racial loyalty" in which "he attributes the more positive stereotype of the white person" as superior, more qualified (despite the same credentials), more intelligent, more deserving and more hardworking in order "to avoid attributing negative characteristics to white people and himself."To avoid lowering his own self-image, the racially identifying decision-maker must elevate the white applicant over the black applicant. This loyalty to other white people occurs in order to fulfill the individual's quest for a positive self-image.

This research alone shows the importance for all people, especially those in the criminal justice system, to understand racial bias and how it affects the conduct and opinions of the beholder.

B. Who Has Racial Bias?

No one is immune from racial bias. Researchers have found that most people, even those who embrace nondiscrimination norms, hold implicit biases. In fact, research shows that people from all racial backgrounds "have implicit biases in the form of stereotypes and prejudices that can negatively and nonconsciously affect [their] Thus, implicit bias is not just a problem for white people--people of all colors have racial bias, even biases toward people that look like them. Even those within marginalized groups have biases against one another because they internalize the majority's stereotypes.

Legal actors are not exempt from racial bias. Numerous studies have detected racial bias among police officers, prosecutors, and judges. One study showed that police officers, like the general public, have a bias that "often assumes young black men are more dangerous or aggressive than Applying these implicit biases to prosecutors, they often assume that nonwhite jurors will be bad for their case if the defendant is also nonwhite. This bias is even institutionalized in some prosecutors' offices, where prosecutors are instructed to come up with race-neutral explanations for striking black jurors to avoid Batson challenges. This tactic is rooted in the race-biased assumption that black jurors will identify with black defendants.

Even judges--legal actors who are supposed to remain the most unbiased and egalitarian actors in the legal system--possess racial biases:

Judges in particular want to believe that they can be fair to everyone and perform their duties in a colorblind manner. However, judges are not immune from the same racial biases affecting most Americans. In light of this reality, efforts to identify and mitigate or eliminate racial bias on the part of a judge or an attorney pose unique problems.

In another study, researchers completed a multipart analysis involving a large sample of trial judges from around the country. Researchers found that "judges harbor the same kinds of implicit biases as others; that these biases can influence their judgment; but that given sufficient motivation, judges can compensate for the influence of these While these findings are disheartening, they also lend hope to the idea that these biases are not invisible or immutable. Actors in the legal system can acknowledge some of their biases and overcome them.

During my years of trial experience, I have encountered firsthand the biases of these legal actors. But I have also observed racial biases in myself and other defense lawyers, and it usually comes with either a lack of awareness or a resistance to addressing these biases. As shown in the literature above, little has been written or discussed about the racial biases of defense lawyers, and how those biases could negatively affect our clients if we do not acknowledge and monitor them.

This Article aims to begin filling the gap in the discourse and to make a case for why acknowledging and controlling racial biases is especially imperative for criminal defense lawyers.

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