Blind injustice: the Supreme Court, implicit racial bias, and the racial disparity in the criminal justice system.

• Author: Clemons, John Tyler

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." (1) This statement by Chief Justice John Roberts in 2007 is alluring in both its grammatical symmetry and its logical simplicity. Yet it encapsulates the naivete of the view of racial discrimination currently held by the majority of the justices of the Supreme Court of the United States. Chief Justice Roberts's assertion contains the implied assumption that the only racial discrimination that exists--or at least the only kind that matters under the Constitution--is explicit and susceptible to conscious control. Decades of psychological research has demonstrated that the most insidious form of racial bias is actually implicit and subconscious, however. (2) Moreover, research has consistently shown that such racial bias--termed "implicit racial bias" by the psychological literature--is capable of affecting conscious behavior and exists independently of individuals' conscious and explicit beliefs about racial equality. (3) By clinging to an outdated and incomplete definition of racial discrimination, the Court has made a series of decisions that have permitted and exacerbated the damage that implicit racial bias wreaks on racial minorities.

The most dramatic and devastating mark of implicit racial bias on the black American community is the racial disparity that permeates every level of the criminal justice system. Failure to acknowledge and account for implicit racial bias has led the Court to expand the discretion of criminal justice actors over the past half century, vastly widening the array of opportunities for implicit racial bias to influence their decisions. (4) At the same time, the Court has rejected one of its most powerful tools for controlling the effects of such bias, spurning disparate impact theory in favor of an intent-based standard that is all but impossible for plaintiffs to meet. (5) To fulfill its constitutional duty and give true meaning to the Equal Protection Clause of the Fourteenth Amendment, the Court must recognize the influence of implicit racial bias on the criminal justice system and change constitutional course accordingly.

This Note begins with an overview of the racial disparity in the American criminal justice system. Part II gives a brief introduction to implicit racial bias, while Part III summarizes the limited research that has been conducted thus far to document its influence on criminal justice actors. Part IV analyzes the key decisions of the Court that have permitted and exacerbated the impact of implicit racial bias on the justice system, culminating in Part V, which shows the cumulative effects of the Court's decisions by analyzing the New York Police Department's "stop-and-frisk" policy and one federal judge's struggle to curtail that policy's racially disparate impact in light of the Supreme Court's precedents. Finally, Part VI argues that the Court should begin to address the reality of implicit racial bias by reigning in criminal justice actors' discretion and by refocusing its equal protection analysis on disparate impact rather than intent.

1. THE CURRENT RACIAL DISPARITY IN THE CRIMINAL JUSTICE SYSTEM

   Vast racial disparity permeates every level of our criminal justice system. Black Americans constitute roughly twelve percent of the American population, (6) but nearly forty percent of incarcerated Americans are black. (7) Black males are six times more likely to be incarcerated than white males and 2.5 times more likely than Hispanic males. (8) In individual terms, the impact of such statistics is staggering: one in three black men born today will be incarcerated in his lifetime, compared to one in six Hispanic men and one in seventeen white men. (9) Racial disparities among incarcerated women are less substantial than among men but remain prevalent. (10) The cumulative effect of such disparity is that today--fifty years after the passage of the Civil Rights Act and 150 years after the ratification of the Reconstruction Amendments--more black Americans are under correctional control than were enslaved in 1850. (11)

   The perspective encapsulated in Chief Justice Roberts's 2007 statement offers a deceptively simple explanation for these alarming statistics. This perspective assumes that our criminal laws operate with some measure of neutrality and that a disproportionate number of black Americans are incarcerated largely because black Americans commit a disproportionate share of crimes. Those who would seek refuge in that assumption face a serious dilemma, however: it is counterfactual. Research has consistently revealed that black and white Americans abuse and sell illegal drugs at similar rates, for instance. (12) Nevertheless, the black drug arrest rate more than quadrupled in the period from 1980 to 2000, while the white drug arrest rate remained virtually constant. (13) Furthermore, traditionally higher rates of violent and property crimes among black Americans may be better explained by higher rates of low socioeconomic status than race; disadvantaged neighborhoods experience higher rates of crime regardless of racial composition. (14) To the extent that they exist, higher crime rates among black Americans are insufficient to explain the racial disparity in the criminal justice system. (15)

   Such a conclusion should be deeply troubling. If higher crime rates cannot explain the higher percentage of incarcerated black Americans, the racial disparity in incarceration becomes elevated from a secondary to a primary effect of the criminal justice system. In other words, something about the way the system is administered is contributing to the incarceration of a disproportionate number of black Americans. This is hardly a novel claim. For years, jurists have warned that certain elements of the criminal justice system may function in ways that disproportionately disadvantage minority defendants--from the crisis in indigent defense funding to the enactment of harsh mandatory minimum sentences. (16) Such systemic critiques are valid and warrant the attention of all whose duty it is to ensure that the criminal justice system functions in a racially just manner.

   Yet a growing body of research at the nexus between law and psychology has begun to reveal a more fundamental source of the racial disparity in the criminal justice system. Disturbingly, that research suggests that one of the primary sources of the disparity is internal, residing within each key actor in the criminal justice system from police officers and prosecutors to judges and juries. (17) Termed "implicit racial bias" by the bulk of psychological literature, (18) that sinister, surreptitious force taints the criminal justice decision-making of even the best intentioned among us.

2. INTRODUCTION TO IMPLICIT RACIAL BIAS

   In order to understand implicit racial bias and its effects on the criminal justice system, one must first understand the more fundamental concepts that form its psychological foundation. At the heart of that foundation are "implicit associations," the subconscious relationships our minds draw between nouns and adjectives. (19) Implicit associations are the categories into which humans place the people, places, and things in our lives to help our brains make sense of the world. (20) As our experiences validate those associations over time, they become programmed into our subconscious minds: our brains know that sugar is sweet, a weeping person is sad, and fire is hot without having to exert conscious effort. (21) The ability to form implicit associations is thus a useful tool in our everyday lives because it frees our conscious minds for higher functions by allowing more basic functions to operate automatically. (22)

   Implicit associations are distinct from explicit attitudes, which are the consciously controlled views we express on a given subject. (23) Indeed, it is possible for an individual to possess completely different implicit associations and explicit attitudes about a given subject, particularly when socially sensitive subject matter is involved. (24) Because few modern Americans will admit to possessing negative explicit attitudes toward racial minorities, for instance, psychologists have devised a method of bypassing an individual's conscious attitudes to ascertain her implicit associations: the Implicit Association Test ("IAT"). (25) The IAT purports to measure implicit associations by comparing the differences in reaction times as individuals sort various words related to a given subject into categories. (26) Shorter reaction times indicate that individuals' brains are performing the categorization more quickly--subconsciously, even--and therefore that the individuals possess a relatively strong implicit association between the word and the category. (27) Since the difference between conscious and subconscious reaction times may be mere milliseconds, there is little opportunity for test subjects to manipulate the results of the IAT, even if they know what is being measured and are motivated to do so. (28) Though the IAT is not totally immune from criticism, it has been almost unanimously embraced by the psychological community and verified in numerous studies since its emergence in 1998. (29)

   Because our brains make implicit associations more quickly than we form conscious thoughts and intentions, implicit associations can affect our behavior. (30) One can envision implicit association and conscious behavior in a kind of a race with one another: when implicit association "wins" by happening more quickly, conscious behavior patterns are skewed through its lens. (31) The process whereby implicit associations affect external behavior is analogous to the well-documented "Stroop Effect," the phenomenon in which an individual mistakenly names the color word in front of her when her instructions were to name the color of the ink. (32) Because the brain reads text more...