Criminal Justice
Our criminal justice system is far from color-blind. According to statistics from the Bureau of Justice, African Americans comprise 40% and Latinos 20% of the American prison population – with African Americans incarcerated at a rate of 5.6 times and Latinos 1.8 times the rate of whites. A high proportion of those in prison are there for drug offenses and yet five times as many drug users are white.
Many of the disparities in the prison population are a result of the decision to criminalize drug use and to target both specific conducts and areas. Mandatory minimum sentences for crack cocaine are higher across the board than for powder cocaine, despite the drugs being essentially the same substance. Furthermore, even though a large portion of drug use occurs in suburban basements, urban neighborhoods are the repeated targets of increased police presences. These issues are the subjects of on-going political debate and the link between race and these policy decisions is of critical importance.
Other differences, however, are not the result of policy decisions but rather the presence of implicit bias at critical points in our criminal justice system. Social psychologists and legal scholars have conducted implicit bias research on issues of: jury make-up, conviction rates, and sentencing lengths. These studies show that lawyers are prone to use peremptory challenges to purposefully shape a jury’s racial makeup, that white jurors are frequently more likely to convict black defendants and impose harsher prison sentences than white defendants accused of identical crimes. Most disturbingly, experiments have also shown that people of all races including actual police officers are quicker to shoot black suspects that white ones.
These studies also begin to point the way to combating implicit bias’s role in creating dramatic racial disparities in our prison systems. When whites are primed to be aware of the possibility that they may treat people of color differently, they tend to act cautiously to avoid behaving in a prejudiced manner. In other words, if whites are aware that they may act in a biased way (or that they may be seen as having been biased), they resist and act according to consciously held egalitarian norms. This work is only at its early stages, however, and more research is needed.
Fruitful areas of research include: prosecutorial discretion – the questions of which crimes are prosecuted, the severity of charges, and the outcomes of plea bargains, whether “voir dire” (jury questioning and selection) and jury instructions offer opportunities for priming to avoid the operation of implicit bias; and whether language in openings and closings by criminal defense lawyers might also lead to a decrease in implicit bias.
Race and the Construction of Juries
Samuel R. Sommers of Tufts University has conducted numerous studies on the role of race in the construction of juries. In a series of experiments, Sommers demonstrated that in the vast majority of cases lawyers will use peremptories to strike a potential juror based solely on race or gender, preferring white jurors to identical black jurors when the defendant is black and male jurors to identical female jurors.
Most Americans would assume that race should not be a determining factor in who sits on a jury. It wasn’t until 1986 in Batson v. Kentucky, that the Supreme Court confirmed that could not use racial considerations in shaping juries. The jury selection process, however, offers lawyers numerous opportunities to skirt the prohibitions outlined in Batson. Lawyers have two mechanisms for shaping juries during what is called the “voir dire” process. The first is a challenge for cause, where the lawyer convinces the judge that a juror will not be impartial. Second is what’s called a peremptory challenge (or simply “peremptories” in the plural). Unlike challenges for cause, these are limited in number, but lawyers are allowed to strike jurors without cause. Peremptory challenges can themselves be challenged by opposing counsel, at which point the judge can decide whether or not race was the determinant for the challenge.
Despite the Batson prohibition, race- and gender-based stereotypes likely continue to govern how lawyers choose which jurors to strike. These stereotypes are still taught to law students and lawyers informally as part of “juror lore”. As Sommers explains, “many jury selection manuals include explicit instructions to consider race” and, because of implicit social cognition, lawyers may use stereotyping to categorize jurors without conscious knowledge.
In Race-Based Judgements, Race Neutral Justifications, Sommers and Norton found in experiments involving college students, law students and practicing attorneys that in a case with a black defendant, a juror will be struck 63% of the time when he is black while a white juror with an otherwise identical profile was struck only 47% of the time.
Their experiments involved a series of rigorous steps designed to control all factors other than race. First, Sommers and Norton created a robbery/assault trial with a black defendant. Next, they gathered a preliminary focus group of college students. They presented the students with the mock trial materials and seven mock juror profiles, none of whom had a specified race. The students then rated the mock jurors for desirability.
Sommers and Norton chose two juror profiles that the group rated equally desirable. This pretesting was done to help ensure that factors other than race would not skew the test results. The mock robbery assault case had no witnesses, and relied heavily on DNA and other forensic evidence. Of the two juror profiles selected, Juror #1 was a journalist who had written a lengthy exposé of police misconduct. Juror #2 was an advertising executive who was skeptical of statistical evidence as statistics could be manipulated.
Next they convened three groups, one of college students, one of law students and one of practicing attorneys. Each group was split into two sub-groups. Group A received materials in which Juror #1 was black and Juror #2 was white, and Group B received materials in which the races were reversed. The materials the groups received were otherwise identical. The six groups were each asked which jurors they would strike.
The experiment showed that all three groups were vastly more likely to strike whichever mock juror was black. Attorneys, for example, struck juror #1 79% of the time when he was black, but struck him only 43% of the time when he was white. Since all other factors remained constant other than race, race is the only feasible explanation for this shift. As to the second hypothesis, when asked for a justification for their choices, fewer than 10% of respondents in all three groups cited race as a factor. 73% of all participants cited Juror #1’s police misconduct exposé when this Juror was Black (vs. only 49% when this Juror was White) and 48% cited Juror #2’s discomfort with statistics as their reason when he was Black (vs. only 23% when he was White). (For a general readership discussion of this study which puts it in historical and legal context, see Sommers and Norton’s Race and Jury Selection.)
Norton, Sommers and Sara Brauner later created an identical experiment measuring the impact of gender bias on jury selection. This was done because women are stereotypically viewed as sympathetic to defendants. This study, Bias in Jury Selection: Justifying Prohibited Peremptory Challenges found that, when all other factors are controlled for, gender became the main reason behind a juror challenge. As in the race study, the majority of participants listed whatever unique negative characteristic a juror happened to have. In addition, Norton and colleagues tested whether explicit instructions to disregard gender had any impact on juror challenges. They repeated the same experiment, but kept the juror gender constant so that Juror #1 was always female and Juror #2 was always male. The variable introduced was the instructions given the participants. Half of them received explicit instruction not to consider gender, while the other half did not. They found that explicit instructions against using gender did not help eliminate bias and in fact only made people justify their biased choices even more.
Sommers and Norton propose three solutions worthy of further study. First is “Consciousness Raising”: making attorneys aware of how bias, stereotyping and prejudice affect their decisions. Sommers and Norton are quick to point out that juror lore specifically centers on encouraging stereotyping and prejudice, so while Consciousness Raising may be applicable to some professions, it may be ill-suited to attorneys. Second is “Category Masking”: hiding the jurors from attorneys during voir dire so they do not know what their races or genders are, a current practice in other fields. Sommers and Norton suggest that lawyers could also be given greater leeway on what kinds of questions to ask to make voir dire a more accurate process. Finally, there is “Affirmative jury selection”, which would entail reorienting the system of voir dire towards selecting jurors instead of eliminating them with diversity as a stated goal. Of all of the proposed solutions, this is the least likely to happen as it means changing over a hundred years of judicial custom.
The Impact of Racial Priming in Jury Deliberations
In a study investigating the role of priming in shaping jury deliberations, Sommers and Ellsworth found that when cases involving black defendants are overtly racialized, white jurors are less likely to convict and, when convicting, impose lighter sentences. When cases involving black defendants are not overtly racialized, both conviction and sentencing rates skyrocket. The study, White Juror Bias, also points to the value of diversity in juries to ensure fairness.
Sommers and Ellsworth considered that because “many whites embrace an egalitarian value system and a desire to appear nonprejudiced,” overt racial issues serve as a reminder to whites not to behave in a prejudicial manner. This lead to the following hypotheses:
Run-of-the-mill trials of Black defendants in which racial issues are not obvious are more likely to elicit prejudicial responses from Whites. Societal norms about racial attitudes still have a profound effect on White jurors’ judgments of Black defendants in racially-charged cases…. When race is not salient in a trial, contemporary norms of egalitarianism are not necessarily trigged. In these cases, Whites will be more likely to render judgments tainted by the racial stereotypes and prejudice that linger in the consciousness of even the least overtly prejudiced of individuals.
To test this, they devised an experiment in which 156 mock jurors were told to consider a case in which a man had struck his girlfriend in a bar. For half of the jurors, the man was white and the girlfriend black, for the other half, their races were reversed. Within these groups, half of the trial materials included the information that the man yelled “you know better than to talk that way about a White (or Black) man in front of his friends”, thus explicitly racializing the case. The other half contained no racial cues.
The mock jurors were then asked to say how they would find in the case. In the race-salient condition (when race was specifically mentioned) 75% of the jurors voted to convict the white defendant, and roughly 73% of jurors voted to convict the black defendant. When race wasn’t mentioned, the conviction rate for the black defendant increased to 87%, while it decreased to around 68% for the white defendant. In other words, when race is overtly mentioned in a trial, jurors’ conscious egalitarianism checks whatever unconscious racial bias they may hold. If race isn’t an overt issue at trial, however, “contemporary norms of egalitarianism are not necessarily triggered” and unconscious bias may rule the day.
Sommers and Ellsworth did a second test involving an interracial battery case. As before, half the jurors received a white defendant and half a black defendant, and then half of each group got a race-salient version of events and a non-race-salient version of events. How this test differed is that the trial was made race-salient not by the incident itself, but rather “through the testimony of a defense witness about the defendant’s minority status on his high school basketball team”. The outcomes described in the first test repeated themselves, even more dramatically. A black defendant was convicted roughly 66% of the time in the race-salient condition, but was convicted 90% of the time in the non-race-salient condition.
Next they asked participants to offer sentencing guidelines. In the race-salient condition, the black and white defendants were both recommended a little over three years in jail. In the non-race-salient condition, the white sentence length remained the same, but the black sentence length shot up to four and a half years in prison.
The most obvious implication of this study is the need for diversity in juries. Beyond the fact that bias is likely to work differently with black jurors (and should be further studied) “the mere presence of Black jurors might be a normative cue that makes [cases] race salient and reminds many White about their egalitarian values.” Another perhaps uncomfortable implication is that “playing the race card”, so long as it is not done in a way that triggers white juror resentment, may actually be a helpful tactic to lawyers with black defendants.
>>Read more on Criminal Justice: Shooting Bias
