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excerpted from: Jody Armour, Where Bias Lives in the Criminal Law and Its Processes: How Judges and Jurors Socially Construct Black Criminals, 45 American Journal of Criminal Law 203 (Spring, 2018) (218 Footnotes) (Full Document)

JodyArmourIs criminal conviction a reliable test of someone's subjective culpability? Or are criminals socially constructed by factfinders in racially biased ways that make criminal convictions of blacks, for instance, unreliable indicators of their moral blameworthiness? Criminal conviction can seem like a strong and reliable indicator of a black wrongdoer's moral blameworthiness by the following logic:

• Because wrongdoers enjoy a constitutionally protected presumption of innocence in criminal trials, the jury is generally instructed that the State must prove beyond a reasonable doubt not only that a wrongdoer committed a prohibited act but that he or she did so with a certain level of blameworthiness or subjective culpability or mens rea.

• Accordingly, a criminal conviction generally means that a jury found the wrongdoer to be morally blameworthy (that is, to have acted with the necessary mens rea) beyond a reasonable doubt.

• Hence, criminal conviction establishes accurately and reliably--i.e., beyond a reasonable doubt--that a black person deserves blame and contempt.

The hidden and mistaken assumption in this argument, however, is that jurors' judgments of black blameworthiness--and thus their mens rea findings about blacks--are not racially biased. For if jurors' moral judgments about blacks are racially tainted, if black wrongdoers systematically suffer harsher moral evaluations than similarly situated whites, they will more often satisfy the mens rea requirement for criminal conviction, which means that black criminals are “constructed” and not merely “found” in the bias-laden fact “finding” process of a criminal trial, which in turn means that a criminal conviction is unreliable evidence of blameworthiness in cases involving blacks. Put differently, proof of racially-biased moral assessments by ordinary people implies that many black criminals are manufactured in the adjudication process through the racially-biased mens rea findings of ordinary factfinders. As I discuss below, studies on attribution bias and ingroup empathy bias indeed do show that black wrongdoers systematically suffer harsher moral appraisals than similarly situated white wrongdoers.

. . .

This same analysis also reveals how easily investigators who compare punishments meted out to blacks and whites for the same crimes can either completely miss or grossly underestimate such bias. For to the degree that race-based attribution bias infects jury findings about mens rea, much racial discrimination cannot be captured by seemingly neutral statistics about race and sentencing. Thus, even if the sentences meted out to blacks and whites convicted of, say, murder or manslaughter were the same, it would not prove that white and black defendants are treated equally in the adjudication process. Rather, the real discrimination may very well have been swept under the rug of jury findings about the presence or absence of the mens rea-- malice--for murder. These differential diagnoses of wrongdoing as a function of the wrongdoer's race result in racial differences in blame and punishment that are easily hidden from empirical examinations of racial biases in criminal justice. Comparing sentences meted out to whites and blacks convicted of the same crime would not capture it.

For instance, say hypothetically that blacks convicted of negligent homicide get the same sentences as whites convicted of the same crime. By the same token, assume blacks convicted of manslaughter get the same sentences as whites, as do blacks and whites convicted of either 2 or 1 degree murder. Such race-neutrality in sentencing can conceal profound racial discrimination in moral judgments by jurors and factfinders about black wrongdoers. This easily overlooked racial discrimination could be swept under the carpet of jury findings about whether the wrongdoer crossed a significant moral threshold: from, say, ordinary negligence to criminal negligence, or from criminal negligence to ordinary recklessness, or from the ordinary recklessness (for manslaughter) to the “extreme” or depraved heart recklessness (for murder), or from voluntary manslaughter to 2 degree murder. Despite the mistaken claims of some criminal scholars and commentators, each and every one of these liability or grading thresholds requires a direct moral judgment of the wrongdoer. So this kind of racial bias can remain hidden in jury characterizations of a killing as either criminal or not criminal, or, if criminal, either murder, manslaughter, or criminal negligence. The differences between these characterizations turn entirely on differences in the moral appraisals of wrongdoers by jurors, for the mens rea requirement directs jurors to morally appraise a wrongdoer before finding him guilty of any of these grades of criminal homicide.

All this casts serious doubt on the reliability, rationality, and trustworthiness of criminal conviction as a test for identifying morally blameworthy blacks who, according to some commentators, deserve our moral contempt and social ostracism. Although criminal courtrooms are major construction sites for the biased social construction of morally blameworthy blacks through racially differential moral evaluations, other busy construction sites abound, for the same bias that infects moral judgments of blacks by jurors also infects moral judgments of blacks by ordinary people. Whenever the moral turpitude of black wrongdoers becomes the topic of the moment on talk radio, in coffee shops, and around water coolers, another potential site for the biased social construction of black criminals becomes active. Cognitive and social psychology tell us that whether we are official or unofficial factfinders, given our inability to avoid most unconscious bias against certain stereotyped groups, we should approach our moral judgments of members of such groups with grave doubts about our objectivity and impartiality--in a word, with great “epistemic humility.” This epistemic humility should temper our contempt toward black wrongdoers inside and outside the courtroom.

Jody David Armour is the Roy P. Crocker Professor of Law at the University of Southern California.