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 Excerpted from: Darren Lenard Hutchinson, “Continually Reminded of Their Inferior Position”: Social Dominance, Implicit Bias, Criminality, and Race, 46 Washington University Journal of Law & Policy 23 (2014) (506 Footnotes) (Full Document)


Darren Lenard HutchinsonThe intersection of race and criminal law and enforcement has recently received considerable attention in US media, academic, and public policy discussions. Media outlets, for example, have extensively covered a series of incidents involving the killing of unarmed black males by law enforcement and private citizens. These cases include the killing of Michael Brown, John Crawford, III, Jordan Davis, Eric Garner, Trayvon Martin, and Tamir Rice. Reports of racially charged police killings of black men have generated so much media attention that the Associated Press has named these stories the “top news” of 2014.

These incidents have sparked controversy because the assailants have been acquitted, not charged by prosecutors or grand juries, or charged only after sustained public criticism. In many of these incidents, the suspects claimed that they shot the victims in order to defend themselves or others from a perceived threat of harm. Some media and academic commentators, however, contend that the victims' race caused the suspects' fear. In other words, racial stereotypes that depict black men as violent and dangerous, rather than actual threatening behavior, motivated the killers. The racial explanation for these incidents and the failure or difficulty to indict or convict the assailants has divided the public along historical racial lines. According to many public opinion polls, whites tend to believe the killings were justified, while people of color do not.

These incidents and the resulting national conversation surrounding race are critical issues for legal analysis, particularly in light of the well-documented history of racism within criminal law and enforcement in the United States. Historically, many states explicitly discriminated on the basis of race by enacting laws that criminalized conduct only if the individual who engaged in the activity was a person of color. Statutes also allowed for harsher punishment of persons of color than for whites who committed the same crimes. Even when criminal statutes did not contain racial classifications, legal authorities often enforced these laws more vigorously against defendants of color. Furthermore, the rigor of criminal law enforcement also varied depending upon the race of the victim. Generally, white victimhood sparked harsher legal punishment than criminal conduct that harmed persons of color. Allegations of criminal behavior involving white victims and black defendants often led to the harshest punishments, prosecutions marred by gross deprivations of Due Process and Equal Protection, guilt assessed by biased jurors and judges, and, in many instances, summary punishment of the allegedly culpable person of color by lynch mobs--often with the complicity of state governments.

Although facially discriminatory crime and punishment would violate the Constitution today, historical patterns of racist criminal law enforcement continue. Many white Americans believe that they live in a post-racial society. Academic research and other data repeatedly disprove this perception. Racial inequality and racial discrimination remain prominent features of contemporary American society.

Researchers have tried to explain why racism persists in a society with legal and cultural norms that mandate racial egalitarianism. Research on implicit bias, conducted primarily by sociologists and social psychologists, finds that racism persists in the United States because people discriminate due to nonconscious stereotypes regarding persons of color. This research finds that “implicit” racial stereotypes impact how members of racial groups respond to outsiders. The implicit bias scholars contend that “ingroup” members treat “outgroup” members worse than individuals in their own racial class. Although researchers have made this finding with respect to all racial categories, they have also concluded that members of socially marginal racial groups typically respond more positively to individuals who are privileged by racial hierarchy. For instance, racial minorities favor whites more than whites favor persons of color. Because whites remain the dominant social class in the United States, their ingroup preferences, if acted upon, could cause discriminatory treatment of persons of color even in the absence of conscious bias. If these negative racial stereotypes continue to influence behavior, the implicit bias theory offers a scientific explanation for the pervasiveness of racial discrimination in a society that favors formal racial equality.

Legal scholars and social scientists argue that implicit bias explains strong racial disparities in numerous social contexts that are bound by legal antidiscrimination requirements. These settings include public education, employment, elections and voting, and criminal law and enforcement. With respect to criminal law and enforcement, many scholars assert that implicit racial bias among police, prosecutors, judges, and jurors shape the experiences of persons of color.

The implicit bias literature links past racial discrimination with similar behavior today. While implicit racial prejudice might explain many contemporary acts of racial discrimination, an exclusive focus on bias-motivated individual conduct obscures the complexity of racism, specifically, that it is an institution of oppression. Race is a social construct. Historically, racial construction depicted whites as free, civilized, and citizens, while persons of color were portrayed as savages, violent, promiscuous, slaves, and foreigners. According to implicit bias research, these same constructs impact how many white Americans perceive persons of color today.

The implicit bias research, however, does not take into account the principal motivation for the construction of racial categories--to facilitate and justify group domination. Prior to the Civil Rights Movement, white supremacy denied full citizenship to persons of color and made them inferior in every aspect of American social life. Persons of color routinely experienced private and state violence; received inferior educational opportunities or no education at all; were denied the means for economic betterment; did not have political freedoms; were displaced from their lands; and were treated as property for whites to own and subjugate. If historical racism represented the manifestation of prejudice and domination, it is possible that these factors also influence racial discrimination today. The implicit bias literature, however, neglects to consider the subjugating dimensions of racism. Racism does not represent the aggregate behavior of unknowingly prejudiced individuals. Instead, racism is a structure of oppression and group domination.

While implicit bias theory has substantially influenced contemporary legal scholarship regarding racial discrimination, other theories within social psychology could help scholars develop a more nuanced understanding of racial inequality. In particular, scholarship that examines the institutional or systemic nature of racism could complement implicit bias research and its primary focus on individual decision-making.

Among other schools of thought within social psychology literature, “social dominance theory” offers a lot of promise. Social dominance theorists contend that human societies inevitably organize into groups and that these groups are arranged relationally as dominate and subordinate. Powerful groups create social norms that preserve their advantaged status and their access to superior resources, such as safe and clean housing, quality healthcare, wealth, and political power. Subordinate social groups, by contrast, tend only to have access to inferior social resources, including nonperforming schools, unsafe neighborhoods with poor housing stock, low-quality healthcare, and limited political power. Social dominance theorists also argue that privileged groups create “legitimizing myths” that justify the unequal distribution of resources.

Law is an important instrument of social domination. Constitutional law doctrines, for example, make it extremely difficult for persons of color to challenge racial discrimination, but impose few barriers for whites who wish to contest the legality of racial egalitarian remedies. Criminal law and enforcement also help to maintain group-based inequality. Blacks and Latinos constitute a disproportionate share of people in the United States who have fallen within the supervision of criminal law and enforcement. This disparate pattern contributes greatly to the unequal status that persons of color occupy in the United States. For instance, racially disparate criminalization forces a disproportionate number of blacks and Latinos to perform unpaid labor; deprives them of the right to vote; severely constricts their ability to find employment upon release; impedes their educational attainment; and often leaves them physically injured and psychologically traumatized. Thus, criminalization in the twenty-first century United States perpetuates many of the same injuries caused by legalized white supremacy in early American history. That the nation now subscribes to formal racial equality does not alter these similarities. Indeed, some social dominance scholars contend that incarceration, just one aspect of criminal law and enforcement, is the most consistent example of group domination in the United States and in most other human societies. Social dominance research, therefore, could strengthen the scholarly analysis of racism within criminal law and enforcement.

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective acceptance of group-based inequality. Because racial inequality within criminal law and enforcement reinforces the vulnerability of persons of color and replicates historical injuries caused by explicitly racist practices, legal theorists whose work analyzes the intersection of criminality and racial subordination could find that social dominance theory allows for a rich discussion of these issues.

This Article proceeds in four principle parts. Part II analyzes the general theory of implicit bias and provides examples of its use in legal scholarship, including debates regarding criminal law and enforcement. Part II also discusses some academic critiques of implicit bias research and responses to those criticisms. Part II concludes by discussing the limitations of using implicit bias in legal analysis. Specifically, by focusing on the unwitting discriminator, implicit bias literature fails to account for the structural dimensions of racism.

Part III encourages legal scholars to consider other social psychology research that could complement the use of implicit bias theory. In particular, social dominance theory, which explains the persistence of group hierarchy across human societies, could help legal scholars to elaborate the role of criminal law and enforcement in facilitating racial subordination.

Part IV draws upon empirical research and specific incidents of violence against black men and demonstrates the shortcomings of legal scholarship that relies exclusively on implicit bias theory to explain racial inequality in contemporary criminal law and enforcement. Part IV then argues that legal theorists should utilize implicit bias and social dominance theories in tandem in order to develop more comprehensive explanations of and remedies for racial disparities within criminal law and enforcement.

. . .

This Article argues that implicit racial biases and social domination both contribute to the existence of racial hierarchy in the United States. Antidiscrimination law, however, only finds culpability when individuals purposefully act with racial animus. Racial animus is difficult to prove because racial stereotypes typically exist nonconsciously. Yet these implicit racial attitudes can and do influence behavior. Courts and lawmakers, however, immunize racial discrimination from legal invalidation because they refuse to refashion the law to address the pervasiveness of implicit bias.

Group-based social hierarchy also remains a central feature of racism in the United States. Social dominance theory illustrates how criminal law and enforcement perpetuate the subordination of persons of color. The same impulse that fueled racist criminal law and enforcement in the past--the desire to maintain white supremacy--continues to affect law and policy today. Individual people alone do not cause racial subordination. Instead, powerful groups and institutions structure race relations.

The killing of Trayvon Martin and Michael Brown and similar recent incidents demonstrate that implicit biases make persons of color vulnerable to acts of individual violence. An individuated analysis of the deaths of Martin and Brown and the innocence of their killers, however, does not comprehensively explain these tragedies. These incidents demonstrate that criminal law and enforcement continue to perpetuate racial subordination. In other words, these homicides, although perpetrated by individuals, are not isolated events. Instead, they constitute acts of institutional racism that support the maintenance of white supremacy.

Legal scholars who use social science literature such as implicit bias theory to supply an empirical foundation for racial justice advocacy should also engage scholarship, such as social dominance theory, that analyzes group-based social hierarchy. Because social dominance theory addresses the structural nature of inequality, this research could enhance legal scholarship regarding contemporary racism and lead to more helpful policies designed to ameliorate the conditions of racial hierarchy.

Stephen C. O'Connell Chair & Professor of Law, University of Florida Levin College of Law.