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May 5, 2012

"The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion"

The title of this post is the title of this very timely new piece by Professors Robert J. Smith and Justin D. Levinson, which is now available via SSRN. I call this piece "very timely" not only because of last month's landmark ruling concerning the North Carolina Racial Justice Act (basics here and here), but also because of all the significant recent empirical scholarship linking federal sentencing disparities principally to the exercise of prosecutorial discretion (examples discussed here and here). Here is the abstract of this important new piece:

The disproportionate incarceration of minorities is one of the American criminal justice system’s most established problems.  In spite of a societal backdrop in which descriptive claims of a “post-racial” America prosper, the problematic racial dynamics of criminal justice persist.  The numbers are stark and clear: one out of every twenty-nine black adult women and men are currently incarcerated compared with only one out of every 194 whites.  But less clear are the causes of these disparities.  For decades, scholars have struggled to understand why America prosecutes and incarcerates minorities at such massive rates.  Perspectives on this troubling issue cover an incredibly wide range of themes, spanning from racist discussions of “biological differences” to thoughtful considerations of structural racism.  A scientific revolution, however, has generated new interest with regard to how upstanding people — including judges, jurors, lawyers, and police — may discriminate without intending to do so.  This implicit bias revolution has created new opportunities to empirically investigate how actors within the legal system can perpetuate discrimination in ways that have been — until now — almost impossible to detect.

The idea that prosecutors might be partially responsible for propagating inequality in the criminal justice system is far from new.  Until now, however, it has been difficult to explain in detail why prosecutors — the vast majority of whom would never intend to hold double-standards based on race — might nonetheless be unwitting propagators of bias. From the arrest of a suspect to the sentencing of a defendant, consider the range of discretion-based decisions that prosecutors must make on a daily basis: Should an arrested citizen be charged with a crime?  At what level should bail be recommended? Should bail be opposed?  What crime or crimes will be charged?  Should charges be dropped?  Should a plea bargain be offered or negotiated?  Which prosecuting attorney will prosecute which alleged crime?  What will the trial strategy be?  Will minority jurors be challenged for cause or with peremptory challenges?  What sentence will be recommended?

This range of discretion offers a starting point from which to investigate how implicit bias might infect the prosecutorial process.  In this Article, we examine implicit bias in the daily decisions of prosecutors, focusing on prosecutorial discretion points and specifically connecting each of them to implicit bias.  We argue that implicit racial attitudes and stereotypes skew prosecutorial decisions in a range of racially biased ways.  We then conclude by suggesting possible avenues for future research and considering potential remedies aimed at reducing the impact of implicit racial bias on prosecutorial decision-making.

A few recent related posts:

May 5, 2012 at 01:02 PM | Permalink


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Implicit bias is a tricky concept. Detecting it accurately even more so. See, e.g., Jon Klick's paper, Strong Claims, Weak Evidence:


Posted by: Steve Erickson | May 5, 2012 3:29:25 PM

I wonder, if in all of this, anyone has considered Rene' Gerards' thesis of the scapegoat and the ancient Greek class denominated 'pharmakos'?
I would commend to your attention "The Gerard Reader" http://www.amazon.com/The-Girard-Reader-Rene/dp/0824516346/ref=sr_1_1?s=books&ie=UTF8&qid=1336304969&sr=1-1
It might illuminate some of this.

Posted by: tim rudisill | May 6, 2012 7:55:01 AM

From the opposite direction:

There are more black victims, especially of murder. And Black criminals are being under prosecuted. The black victim gets less police protection, investigation, and charging. The racial disparity exists, according to data, of excessive leniency when the victim is black.

With a six fold higher rate of murder, this argument is ridiculous. Only valid in the Twilight Zone, upside down world where the lawyer works. If we could only get rid of this pro-criminal, government make work, know nothing, really stupid, rent seeking nightmare, there would be far more punishment of black criminals than today.

Posted by: Supremacy Claus | May 7, 2012 6:27:07 AM

The paper Steve Erickson flags in the first comment above drew this response.

Posted by: Michael Drake | May 7, 2012 12:10:31 PM

Michael Drake --

What Steve said was, "Implicit bias is a tricky concept. Detecting it accurately even more so."

Do you disagree with that?

Beyond that, these rote cries of "RACISM!!!" are getting weary for their bleating repetition. It's just a standard issue smear used by the Left to try to intimidate the opposition -- the New McCarthyism. The Old McCarthyism wasn't all that impressive, and the modern version, even less so.

Posted by: Bill Otis | May 7, 2012 12:46:38 PM

Bill, no, I don't disagree that implicit racism is a "tricky concept." So is quantum mechanics. Trickiness is no argument against. And indeed, the trickiness inherent in detecting an implicit attitude is the raison d'être of instruments like the IAT!

Aside from all that, your stated concern about the supposed "smear" of implicit racism (which is a psychological feature characteristic of humans that at least a priori has no political valence) is a bit rich coming as it does amidst your blanket condemnation of "the Left" as "the New McCarthyi[tes]." I myself appreciate the irony. But others might find it, I dunno, wearying.

Posted by: Michael Drake | May 7, 2012 5:32:32 PM

Michael --

"Bill, no, I don't disagree that implicit racism is a 'tricky concept.' So is quantum mechanics. Trickiness is no argument against."

Of course it is. And if you're up to quantum mechanics, more power to you. I'm not, and I strongly suspect the rest of the board isn't either. I can spot a smear, however, and the rote charge of racism against conservatives is No. 1 on the list these days.

"Aside from all that, your stated concern about the supposed 'smear' of implicit racism (which is a psychological feature characteristic of humans that at least a priori has no political valence) is a bit rich..."

I don't know if it's rich. If it is, Obama, Mr. Hope-and-Change, will attack it, the rich being, ya know, evil and stuff.

But moving right along...You know perfectly well that the charge of racism is SOP for liberals these days, and you equally know that its purpose is to intimidate -- not to start a discussion, but to end it by bullying. I'd be happy to repeat that under oath. Think you could convict me of perjury?

"... coming as it does amidst your blanket condemnation of "the Left" as "the New McCarthyi[tes]." I myself appreciate the irony. But others might find it, I dunno, wearying."

Then they should head to the gym. I'm glad that you, at least, appreciate the irony, for there is much to appreciate. We can start with the Left's campus speech codes, which actually seek to INSTITUTIONALIZE McCarthyism.

Do you love it?

Posted by: Bill Otis | May 7, 2012 8:07:24 PM

All -isms are folk statistics, 80% true, 80% of the time. All PC comes from case law intimidation of the lawyer of the folks and the truth. So hire Jews to play on your professional basketball team, and have a a black man manage your money. You will deserve the consequences. Those of you citing Bob Cousy of the Celtics or Ken Chenault, CEO of American Express will only be making the point by their rarity.

School speech codes reflect the fear of being successfully sued by minorities, gays, and feminists. Why does the fear exist? Because judges handed over $millions to these lawyer entitled interest groups after someone made an off color joke. If people do not like PC, thank the bench for it. I would like to see a direct action group go after rent seekers on bench. To deter. They are little more than a criminal syndicate, with all self help actions being justified by ethics, formal logic, and policy.

The first serious step to control the out of control lawyer profession is to enact constitutional provisions ending all tort immunities of the judges and prosecutors. These are the most incompetent service providers of all service providers. They are in total failure, and the victims of their carelessness should be made whole from their personal assets, not from taxpayer funds.

Posted by: Supremacy Claus | May 8, 2012 2:14:47 AM

Let's remember that the criminal justice system exists to secure public safety by first preventing crime, catching offenders, separating the guilty from the innocent, and punishing justly. It is not the place to solve myriad social ills.

With that said, the problem of incarcerating too many minorities has little to do with "bias" in the criminal justice system and almost everything to do with social ills the criminal justice system inherits. Until we focus on those problems, our incarceration rates won't change. Moreover we will waste tons of money studying the wrong issue and trying fix the wrong end of the funnel.

I know this from a career's experience as a prosecutor, and more specifically from litigating bias claims re: the jury selection process, the death penalty, and a sentencing study I participated in while on a committee studying racial bias in our state's criminal justice system. All of those studies debunked the notion that the system was biased, but strongly indicated that the result reflect issues in society that the criminal justice system does not cause and is ill-equipped to address.

Posted by: Harry Weller | May 8, 2012 1:44:28 PM

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