A. Charging Decisions

The first decision that a prosecutor makes in most criminal cases is whether to charge the suspect, and if so, with what charge. In some cases the decision involves whether to charge the suspect at all. This power is an expression of mercy--holding back the legitimate power of the State. But as the United States Supreme Court noted in McCleskey v. Kemp,"[T]he power to be lenient [also] is the power to Empirical studies confirm that the Court's observation has played out; prosecutors are less likely to charge white suspects than black suspects. These findings are true even when statistically controlled for prior criminal record. Faced with such discrepancies in charging decisions, the question becomes: If two suspects with substantially similar backgrounds are arrested for identical crimes in the same jurisdiction, how can the suspect's race possibly matter? One possibility is that implicit bias is at play.

1. Charge or Release?

In order to understand the role that implicit racial bias might play in a decision of whether to charge a suspect with a crime, consider an ambiguous case of self-defense. Imagine two homicide cases with identical facts except the race of the victim: one is black and the other is white. The suspect in each case claims self-defense, specifically alleging that he accidently bumped into the deceased outside of a bar at night, at which point the deceased warned, "You better watch yourself, or you're going to get yours."The suspect contends that the deceased then reached toward his waist and began to pull out a shiny object. The suspect, thinking the deceased was reaching for a weapon, fired his own handgun in what turned out to be a fatal shot. No gun was located near the victim's body, but police found a silver cell phone several feet from the deceased.

Prosecutors must assess the strength of a potential self-defense claim to determine whether they should bring charges at all, and if so, whether to offer a plea to manslaughter or another less serious charge. Assessing the strength of a possible self-defense claim requires an instinctual judgment: did the suspect reasonably believe that the deceased was reaching for a weapon? Recall our discussion of research indicating that Americans implicitly associate black citizens with aggression and hostility. Additional empirical research shows that people specifically associate blacks with guns and other weapons. For example, thousands of IATs taken online over the years have confirmed that the vast majority of Americans implicitly associate blacks with weapons and whites with harmless objects. Other studies using priming methodology support this finding. Keith Payne, for example, found that when participants viewed rapidly flashing photos of black faces immediately before seeing photos of guns, they were significantly faster at identifying the guns than after being primed by white faces. Applying this research to the scenario above, one could predict that a person perceived to be hostile and implicitly associated with weapons--a black person--would be perceived by prosecutors as likely reaching for a weapon.

The research, especially IAT findings that people implicitly dissociate whites and weapons, also suggests that prosecutors might be more likely to believe that the white victim was reaching for his cell phone, and thus, that the suspect acted unreasonably in shooting the deceased. So, switch the facts and assume that both victims are white. If suspect one is black, because Americans associate black citizens with hostility and aggression, then the prosecutor might be inclined to believe that the black suspect acted too quickly in shooting the unarmed man, while the same prosecutor might be inclined to believe that the white suspect--not only unencumbered by these negative associations but also bolstered by positive stereotypes such as lawful, trustworthy, and successful--acted reasonably in discharging his weapon. Of course, these dynamics would be amplified in a cross-racial shooting because stereotypes affect the evaluation of both the suspect's and the victim's behavior. A white victim would be more likely to be perceived as reaching for a cell phone, and a black victim would be more likely to be perceived as reacting unreasonably in discharging his weapon.

Implicit racial bias might also affect prosecutorial discretion in the charging decision in a non-self-defense scenario. Consider a case in which the prosecutor must decide whether to charge a suspect with forcible rape. According to the suspect, after a romantic dinner and a movie, the complaining witness invited him back to her house. They entered her bedroom. The complaining witness grabbed his crotch area and started kissing him. He directed her onto the bed and began taking off her (and then his) clothes and began having intercourse. After roughly one minute, she slapped his face. Taking this as a sign of sexual play, he slapped her back. After roughly another minute, he saw tears rolling down her face, immediately stopped having intercourse and asked her, "What's wrong?"

The witness tells a different story. She contends that the suspect closed the door after they entered the bedroom. He approached her quickly as though he was going to shove her against the door. She put up her hand in a defensive posture and struck him in the crotch area. He began kissing her. At first she tried to pull away, but then she "just sort of stopped resisting." He shoved her onto the bed and began taking off her (and then his) clothes. She said it "all happened so quickly" that she didn't know what was happening and felt like she was in "shock." She slapped his face as hard as she could muster. He then slapped her across the face with such force that she thought "my jaw had shattered." She began to sob. After a pause, he asked her, "What is wrong?" and then rolled off from on top of her. She began to sob very loudly. How does the prosecutor evaluate whether to charge this crime as a rape or consider the conduct to represent a reasonable mistake?

As prosecutors process the contested facts of the case, they cannot help but consider both the rape suspect and the complaining witness. Regarding the race of the suspect, research confirms that people associate the crime of rape with black perpetrators. A study by Jeanine Skorinko and Barbara Spellman found that when asked to identify societal conceptions of criminals for certain crimes, participants overwhelmingly selected black perpetrators as being associated with the crime of rape. After reading the competing statements of the suspect and the complaining witness, and seeing the mug shot of the suspect, a black male, prosecutors might implicitly associate black male with sexual aggression and insatiability, and even, as the research suggests, specifically with the crime of rape. It is not that the prosecutors consciously think about the black suspect and purposefully decide that black males are rapists. Rather, the associations are automatic; the prosecutors might "sense" aggression in the interaction or might have an instinctual reaction that the suspect is an incorrigible offender, but those thoughts are not necessarily consciously linked to race. And, again, it matters who the complaining witness is too. White women historically have been portrayed as pure and sexually modest. Black women, by contrast, are stereotyped as promiscuous and seductive. If the complainant in a rape case is a black woman, the prosecutor might implicitly associate the victim with such stereotypes and unintentionally devalue the accusation.