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Excerpted From: Mark W. Bennett, The Implicit Racial Bias in Sentencing: The next Frontier, 126 Yale Law Journal Forum 391 (January 31, 2017) (76 Footnotes) (Full Document)

MarkWBennett02A prominent life scientist recently declared that the Higgs boson particle, the Internet, and implicit bias are the three most important discoveries of the past half-century. In President Obama's commencement address at Howard University last year, Obama stated: “And we knew ... that even the good cops with the best of intentions--including, by the way, African-American police officers--might have unconscious biases, as we all do.” Why has implicit racial bias worked its way into a presidential address? More importantly, after focusing so long on explicit biases, what do we need to know and do about the pervasive problem of implicit racial bias in the courtroom?

As I and many others, including Professor L. Song Richardson, argue, implicit racial bias is now the most pervasive problem affecting the criminal justice system. In her review of Nicole Gonzalez Van Cleve's book Crook County: Racism and Injustice in America's Largest Criminal Court, Professor Richardson eloquently discusses the explicit racial bias that Van Cleve vividly portrays happening in Cook County, Illinois courtrooms. As Professor Richardson, in her insightful critique, reveals, the pernicious and invisible-to-the-naked-eye effects of implicit bias in the shadows of the courtrooms and courthouses in Cook County--which Gonzalez Van Cleve does not address--present the more vexing problems. While the structural racial bias resulting from the “systemic triage” that Professor Richardson explores is an urgent problem, so too is the next frontier--the emerging discovery of implicit racial bias arising out of the relationship between skin tone, Afrocentric features, and sentencing.

Social scientists, academics, lawyers, judges, and court administrators have recently demonstrated a heightened interest in implicit bias. While the recognition and limited study of implicit racial bias in the courtroom is not much older than the discovery of the Higgs boson, at least one criminal defense lawyer recognized it in a motion for new trial nearly ninety years ago. Lena Olive Smith--the first black female member of the Minnesota bar, a renowned civil rights lawyer of her time, and one of my personal heroes--called attention to the racial dynamics of a 1928 state court prosecution in which a black man was tried for raping a white woman before an all-white jury. In a motion for a new trial, Smith wrote:

The court fully realizes I am sure, that the very fact that the defendant was a colored boy and the prosecutrix a white woman, and the entire panel composed of white men--there was a delicate situation to begin with, and counsel for the State took advantage of this delicate situation .... [P]erhaps [the jurors] were, with a few exceptions, conscientious in their expressions [of no race prejudice]; yet it is common knowledge a feeling can be so dormant and subjected to one's sub-consciousness, that one is wholly ignorant of its existence. But if the proper stimulus is applied, it comes to the front, and more often than not one is deceived in believing that it is justice speaking to him; when in fact it is prejudice, blinding him to all justice and fairness.

The definition Smith offers of implicit bias (albeit not labeled as such) matches any contemporary cognitive scholars' definition.

While scholars have started to look at a host of implicit bias issues in the courtroom, most have done so with mock juries or studies that more closely resemble social science labs than real courtrooms. This Essay focuses on a single aspect of implicit racial bias in the courtroom: judicial sentencing.

Three critical points articulated by Professor Richardson are important to reiterate. First, implicit racial bias and other implicit biases exist even, and sometimes particularly, in egalitarian individuals. In fact, such individuals are less likely to be aware of these implicit biases, because they lack explicit biases. I am a prime example. Given my personal relationships and professional background as a former civil rights attorney, I did not consider myself racially biased. You can imagine how shocked I was, after taking my first Black/White Implicit Association Test (IAT) more than a decade ago, to discover I had strong anti-black implicit biases. Second, the effects of implicit biases in the courtroom are invisible to the naked eye. Finally, Professor Richardson is correct that, in extremely busy courts like Cook County, Illinois, where courtroom participants are overwhelmed with more cases than proper resources, such conditions create a rich environment for systemic implicit racial biases to thrive and infect every aspect of courtroom criminal proceedings. Professor Richardson astutely observes that multi-tasking courtroom professionals in Cook County and other overwhelmed criminal courts face time pressures that prompt them to make quick discretionary decisions--“the classic situations in which implicit biases are likely to influence decisions and judgments.” However, the corollary is not true. No cognitive social scientist or implicit bias scholar has suggested that implicit biases arise only when there are severe time pressures. Thus, it would be unwise to assume implicit bias in courtrooms exists in Pittsburgh, but not Pocatello, and in Chicago, but not Chico.

In this Essay, I will first briefly discuss the IAT and its objective role as the most recognized, studied, and accepted test in revealing implicit racial bias. Next, I turn to cognitive blind spots, especially judicial blind spots, that lead to implicit racial bias in sentencing. Cutting edge empirical studies of inmate populations in several states strongly suggest implicit racial bias contributes to increases in the length of sentences based on offenders' darker skin tone and more pronounced Afrocentric features.

. . .

Professor Gonzalez Van Cleve's ethnography, Crook County: Racism and Injustice in America's Largest Criminal Court, reveals massive overt racism in the criminal courts of Cook County. Professor Richardson's critique of the book establishes that, in addition to overt racism, there are more serious problems of implicit racial bias in the criminal justice system that Professor Gonzalez Van Cleve did not address. I fully concur and offer my own critique that, at least for sentencing discrimination, the new frontier in empirical research strongly suggests that skin tone and Afrocentric facial features are important and crucial variables underlying implicit racial bias. As cognitive social scientists and members of the academy explore this new frontier, and as judges are educated and informed about the effects of skin tone and Afrocentric features in judicial decision-making, it is my hope that these important issues will be lifted from the shadows of American courtrooms and judges' subconsciousness.

Mark W. Bennett is in his twenty-third year as a district judge in the U.S. District Court for the Northern District of Iowa.