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Excerpted From: Jeanelly Nuñez, Scanning for Bias: A Neuroscientific Response to Policing with Implicit Bias, 27 Cardozo Journal of Equal Rights & Social Justice 295 (Spring, 2021) (200 Footnotes) (Full Document)


JeanellyNuñez“I can't breathe” were the words an unarmed Black man screamed eleven times before being choked to death by a New York City police officer. On July 17, 2014, Officer Daniel Pantaleo executed a fatal chokehold on forty-three-year-old Eric Garner in an attempt to arrest and detain him for selling untaxed loose cigarettes. Although video footage shows Eric Garner refusing to cooperate with--and pulling away from--several police officers, the video also evinces Officer Pantaleo's immediate decision to wrestle Eric Garner to the ground and place him in a chokehold, a practice which the New York City Police Department banned in 1993. The physical attack concludes with Eric Garner's oral plea for more air until eventually his lifeless body falls limp. Eric Garner was unarmed and appeared to show no physical or combative threat, other than being a Black man.

Six years later, on May 25, 2020, George Floyd echoed Eric Garner's similar plead when he encountered four Minneapolis police officers. However, this time, an unarmed George Floyd screamed “I can't breathe” thirty times before losing consciousness and dying. Officer Derek Chauvin chose to restrain Mr. Floyd, a forty-six-year-old Black man, by pinning his knee to Mr. Floyd's neck for a total of eight minutes and fifteen seconds. This neck-pinning maneuver is no longer allowed in most Minnesota law-enforcement agencies, but Minneapolis still allows this maneuver as a “non-deadly force option.”

Unfortunately, these are stories the world knows far too well, as Black Americans are 2.5 times more likely to be killed during police encounters than White Americans. Yet, despite various high-profile cases and increased video evidence, police officers are rarely prosecuted, let alone convicted, for shooting deaths. This Article attempts to directly respond to this widespread public health crisis by addressing the disparate effect of policing on communities of color and endeavoring to dismantle the racism associated with policing. Specifically, this Article proactively proposes that mandatory neuroimaging thresholds aimed at detecting strong racial biases be implemented into the pre-employment screening process of police officers, in an effort to flag and potentially eliminate strongly biased applicants from the candidate pool.

This Article begins by examining the numerical data surrounding racial injustices by illustrating how men of color are much more likely than their white counterparts to fall victim to fatal police violence, drug arrests, traffic and Terry stops, and imprisonment. Part II then highlights the extent to which race influences police contact and provides a first look at implicit racial bias and its unavoidable connection to policing. Part III explores the neuroscience behind racial bias and helps dissect the genesis of bias. Part IV then proceeds by appraising how brain scanning technology and psychological testing can be used to detect strong racial biases and how such technology and testing should be incorporated into the policing pre-employment screening process. Part V concludes by investigating the potential challenges to the proposed form of pre-employment screening by comparing the reliability and validity of current pre-employment practices for police officers with neuroscientific testing.

[. . .]

On September 22, 2020, former President Donald Trump issued an executive order banning anti-bias training for not only federal workers but also for corporations doing business with the government. During Donald Trump's first presidential debate with Joe Biden, Trump stated that he ended it because “it's racist.” The executive order targeted sensitivity training that is “rooted in the pernicious and false belief that America is an irredeemably racist and sexist country.” Notwithstanding the former President's perspective, police responses to the June 2020 Black Lives Matter protests and the January 6, 2021 breach of the U.S. Capitol Building illustrate the peremptory need for bias reform. George Floyd's death on May 25, 2020 ignited hundreds of protests across the country, some of which resulted in black protestors being tear gassed, shot with rubber bullets, and arrested. Conversely, a few days before President-Elect Joe Biden's inauguration, police officers were seen taking selfies with the Donald Trump supporters who stormed the U.S. Capitol while Congress validated President-Elect Joe Biden's electoral victory.

Implicit bias is not quackery. During the first presidential debate, in September of 2016, Hillary Clinton discussed how implicit bias in policing can have “fatal consequences.” More recently, at the vice-presidential debate between Kamala Harris and Mike Pence in October of 2020, Senator Harris reiterated her initiative on training law enforcement on implicit bias because “Joe Biden and [Kamala Harris] recognize that implicit bias exists.” The United States Department of Justice has also integrated training for more than 28,000 of its employees on how unconscious biases influence policing. And in 2015, the Supreme Court notably referenced implicit bias in a ruling allowing federal action against housing policies that have a disparate impact and are being overtly discriminating.

The ideas and science behind implicit racial bias are gaining a strong foothold in modern-day society. Therefore, it is not a foreign concept to emphasize the need for police reform within the context of preemptively addressing and testing for implicit racial bias. In sum, the data and evidence proffered by this Article proves that men of color die at a disproportionate rate as a result of police violence in comparison to White men. The evidence also suggests that testing for implicit bias is becoming substantively more reliable, especially when compared to other examinations such as polygraph tests. Yet, notwithstanding the polygraph's unreliability, police departments have still chosen to implement polygraph tests into their application process. This Article proposed that instead of utilizing a knowingly undependable exam, police departments should introduce fMRI measuring and IATs into their screening processes to detect for strong indications for racial bias. However, at the outset, the New York City Police Department should launch a pilot program requiring police officers to undergo pre-employment neuroimaging screening in order to truly gauge the testing's capabilities, feasibility, cost, and consequences. This initiative would be similar to the 2014 body camera pilot program implemented in five of New York City's police precincts, which was ultimately rolled out across the entire city. Policing is inextricably connected to race and any propositions aimed at exposing and remedying the effects of racially biased policing should be embraced.

J.D. Seton Hall University School of Law, 2020; B.A. Rutgers University, 2015. This Article was written as a third-year student thesis at Seton Hall Law School.

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