Racial Profiling On the Streets, in Court, Even at Your Law

Office

ABA Criminal Justice Section

Probing The Mind

Hon. Bernice Donald – Sixth Circuit Court of AppealsHon. Mark W. Bennett – U.S. Dist. Judge for the N.D.

of Iowa

Explicit v. Implicit BiasA. Stereotyping and discriminatory bias is often conscious

and explicit. A good example of this is Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). When a highly successful woman was denied partnership, her supervisor advised her to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”

B. More often today bias is unstated and hidden. Social scientists also refer to hidden bias as cognitive, automatic, or implicit bias. It is nonetheless powerful and pervasive.

RiddleA father and his son are out driving. They are involved in an accident. The father is killed, and the son is in critical condition. The son is rushed to the hospital and prepared for the operation. The doctor comes in, sees the patient, and exclaims, "I can't operate, it's my son!" How can this be?

Only 35% of over 200 subjects answered the riddle Only 35% of over 200 subjects answered the riddle correctly: the doctor is the boy’s mother.correctly: the doctor is the boy’s mother.

Most popular wrong answers given:

doctor was stepfather

father was gay

“it’s impossible”

What pops into your head when you think of “Doctor”?What pops into your head when you think of “Doctor”?

or

Leena Olive Smith

• Born – 1885 – Kansas• 1905 – moved to

Buxton, Iowa• 1913 Olive Hair Store• 1915 -Real Estate

Agent• 6th floor – Plymouth

Bldg.

• 1916 – Northwestern College of Law

• 7th floor – Plymouth Bldg.

• 1921 – age 35 • First African-

American female lawyer admitted to Minnesota Bar

“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 that 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.

Def’s Mot. for New Trial, State of Minn. v. Haywood, (4th Dist. Ct. 1928) (No. 26241)(filed June 18, 1928)

PROJECT

IMPLICIT

https://implicit.harvard.edu/im

plicit/demo/

PROJECT

IMPLICIT

https://implicit.harvard.edu/im

plicit/demo/

What is Project Implicit?• Yale University, 1998

• Now at Harvard, Virginia, & Washington Universities

• 2003 – took off with research grant from National Institute of Mental Health

• Over 6 million tests since 1998

• Now averaging 15,000 per week

What is Project Implicit (cont.)?

• Virtual Laboratory testing for bias:– Race– Gender– Disability– Age– Religious– Weight– Arab-Muslim– Skin tone– Asian American– Sexuality

I.A.T.• Implicit Association Test

– Implicit bias is found when faster responses are given when African American is paired with “bad” than when African American is paired with “good”

I.A.T. • Implicit Association Test

– Implicit bias is found when faster responses are given when African American is paired with “bad” than when African American is paired with “good”

– I.A.T. findings:• Implicit biases are pervasive• People are often unaware of their implicit biases• Implicit biases predict behavior• People differ in levels of implicit bias

– Validity of the I.A.T.

A Peek Into the

Emerging Neuroscience

of Implicit BiasA Peek Into the

Emerging Neuroscience

of Implicit Bias

fMRI

Prejudice Network

Stereotyping Network

Social Science Research

Social Science Research

The “Big Five” Orchestras

Are Emily & Greg More Employable than Lakisha & Jamal?

Racial Discrimination Among NBA Referees

Physicians and Implicit Bias• First use of the I.A.T. to systematically observe the behavior

of health care professionals– Atlanta/Boston – 220 internal and emergency residents– Clinical Vignette:

• Mr. Thompson• 50 year old• Presents with sharp/stabbing pain

– Does implicit or explicit race bias predict a physician’s decision to clot bust using thrombolytic drugs?

– Explicit bias: doctors expressed equal preference for black and white

– Implicit racial bias was medium or large in magnitude

Alexander Green, et. al., Implicit Bias among Physicians and its Prediction of Thrombolysis Decisions for Black and White Patients, 22 Journal of General Internal Medicine 1231 (2007).

Shooter Bias Studies

The turban effect: The Influence of Muslim headgear in the shooter

bias paradigm

Christian Unkelbach et al., The Turban Effect: The Influence of Muslim Headgear

and Induced Affect on Aggressive Responses in the Shooter Bias Paradigm, 44 J. EXPERIMENTAL SOC. PSYCHOL. 1409

(2008)

Shooter Bias (cont.)

• Two Follow-up studies– First Study:

• ERP’s (event-related brain potentials)– Stereotypes affect shooter bias through those

portions of the brain that influence threat and conflict detection processes

– Black targets seem more threatening than White targets

– White targets conflict more strongly with the tendency to shoot than Black targets

Event –related Potentials and the Decision to Shoot: the Role of Threat Perception and Cognitive Control , 42 Journal of Experimental Social Psychology 120, 127 (2006).

Shooter Bias (cont.)

• Two Follow-up studies

Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to Shoot, 92 Journal of Personality and Social Psychology 1006 (2007).

– Second Study:• Comparing police officers with community

members and university students • Shooter bias exists for community

members/university students but not for police officers

• Police officers showed no racial bias, implicit or otherwise, in their decisions to shoot the armed and not shoot the unarmed – regardless of race

Misremembering Facts

Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 DUKE L.J. 345

(2007)

Looking Deathworthy

Jennifer L. Eberhardt et al., Looking Deathworthy: Perceived Stereotypicality

of Black Defendants Predicts Capital-Sentencing Outcomes, 17 PSYCHOL. SCI.

383 (2006)

Implicit Bias and Ambiguous Evidence

Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone,

Implicit Racial Bias, And Judgments of Ambiguous Evidence, 112 W. VA. L. REV.

307 (2010)

Levinson Empirical Study• Participants read two unrelated stories: one about a fistfight the

second about a employee who was terminated• Independent variable: race of story protagonist • Fight story - William, a Caucasian; Tyronne, an African-American• Employment termination story: Brenda, a Caucasian; Keisha, an

African-American• Participants misremembered certain legally relevant and

important facts in a racially biased manner• Participants who read about Tyronne recalled 80.2% of

aggression facts• Participants who read about William recalled 68.8% of aggression

facts• Participants falsely remembered Brenda being Employee of the

Month 17% of the time and Keisha 10%

Levinson Study (Cont.)

• Memory bias and explicit racial preference (SDO Scale) not typically correlated

• One surprising correlation: Participants who favored racial equality on SDO Scale more likely to have false memory that Tyronne kicked James and less likely to accurately recall that Tyronne was trying to push James rather than punch him.

Stereotypes Drive Recall Errors and False Memory Generation

• People recall stereotype-consistent information more easily than stereotype-inconsistent information

• Stereotypical crimes: White crimes: ecstasy usage & identity fraud; Black crimes: crack usage and shoplifting; and race neutral crimes: marijuana usage and joyriding

• Study presented participants with above crime scenarios• Race of crime perpetrator varied• Participants more likely to recall race of perpetrator when

matched with racial stereotype

People Are More Likely to Generate False Memories When the Contents Are Consistent with Stereotypes About the

Content or Actor in the Memory

• False memories and stereotypes go hand in hand based on brain function

• Stereotype-consistent information is stored in broad brain schemas - not deeply encoded in brain

Presumption of Innocence

Justin D. Levinson et al., Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit

Association Test, 8 OHIO ST. J. CRIM. L. 187 (2010)

Does Unconscious Racial Bias Affect Trial Judges?

Jeffrey J. Rachlinski, Sheri Lynn Johnson, Andrew J. Wistrich & Chris Guthrie, Does Unconscious

Racial Bias Affect Trial Judges?, 84 Notre Dame L. Rev. 1195 (2009)

This article reports the results of the first study of implicit racial bias among judges

IAT Testing Results

• Results of IAT testing:1. Strong White preference among White judges

2. No real preference among Black judges

3. Black judges comparable IAT scores as Blacks on the internet

4. White judges statistically stronger White preference than Whites on the internet

William T. Pizzi et al., Discrimination In Sentencing On The Basis Of Afrocentric

Features, 10 MICH. J. RACE & L. 327 (2005)

L. Song Richardson & Phillip Atiba Goff, Implicit Racial Bias In Public Defender

Triage, 122 YALE L.J. 2626 (2013)

My approach

to implicit bias

in the

courtroom

My approach

to implicit bias

in the

courtroom

ABC – What Would You Do? Hosted by John Quinones

• Stolen Bike Scenario – Friday, May 7, 2010 – Repeat, July 8, 2011

I will not decide the issues in this case based on biases. - This includes gut feelings, prejudices, stereotypes, personal likes or dislikes, sympathies, or generalizations.

You must decide during your deliberations whether or not the prosecution has proved the guilt of each defendant on each offense charged beyond a reasonable doubt. In making your

decision, you are the sole judges of the facts. You must not decide this case based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluation of that evidence, your reason and common sense, and these instructions.

Do not decide the case based on “implicit biases.” As we discussed in jury selection, everyone, including me, has feelings, assumptions, perceptions, fears, and stereotypes, that is, “implicit biases,” that we may not be aware of. These hidden thoughts can impact what we see and hear, how we remember what we see and hear, and how we make important decisions. Because you are making very important decisions in this case, I strongly encourage you to evaluate the evidence carefully and to resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluation of that evidence, your reason and common sense, and these instructions. Our system of justice is counting on you to render a fair decision based on the evidence, not on biases

“The arc of the moral universe is long but it bends towards

justice”

Rev. Martin Luther King, Jr. (Jan. 15, 1929 – April 4, 1968)

February 18, 1957