Racial Discrimination & Whack-a-mole
By Sarah Turberville, Senior Counsel, Criminal Justice Program

At best, many Americans – particularly those in decision-making positions in death penalty jurisdictions across this country – are uncomfortable when it comes to talking about race. Study after study reveals that Americans strive for colorblindness as a cure for racism and bigotry.  And a recent report reveals that the youngest generation to become eligible to serve on juries and to vote – the so-called “millennials” – also believe that different treatment on the basis of race is something that can be alleviated by simply “removing consideration of race from the equation.”

The reality is, however, that attempts to ignore race cannot remedy the unconscious workings of the mind – and one of the more unsavory of these workings is implicit bias. Implicit bias is the process by which “the human mind automatically and unintentionally reacts to different groups in divergent ways….”  For example, “when implicit racial stereotypes are activated, the human mind is incredible of major feats, such a turning an innocent hand into one reaching for a gun.”  And perhaps most importantly, an essential aspect of implicit bias is that it often differs significantly from people’s self-reported attitudes about race (including when those self-stated beliefs encompass egalitarianism and colorblindness). Thus, most of us are completely unaware that an unconscious bias is affecting our decision-making. We say we treat every person equally; meanwhile, our minds go to work segmenting, classifying and assigning values to individuals based on race and ethnicity.

Researchers have examined the effect of implicit bias in a variety of public policy spaces – such as economic and employment decision-making and even on juror deliberations in criminal cases.  They have revealed that implicit biases often operate to discriminate against black defendants in several ways – including undermining the presumption of innocence or evaluating innocuous evidence as evidence of guilt.  Studies have even shown that evidence of guilt was evaluated differently depending upon the lightness or darkness of the skin tone of the defendant.

A new examination of the effect of implicit racial bias and the death penalty should give us all pause as it examines, for the first time, how the human mind unwittingly contributes to racial disparity in capital punishment.  Researchers Justin Levinson, Robert Smith and Danielle Young conducted a study of 445 jury-eligible citizens in six states in which the death penalty is imposed and carried out with the greatest frequency (Alabama, Arizona, California, Florida, Oklahoma and Texas).  They sought to understand if implicit bias may explain why those who murder whites are more likely to receive a death sentence than those who murder blacks and, in some jurisdictions, why black defendants are sentenced to death more frequently than white defendants.

Participants were given two “implicit association tests,” as well as a “mock trial sentencing test” in which they had to determine whether to sentence a defendant to life imprisonment or death. After conducting several statistical analyses, the researchers found that the participants harbored implicit racial stereotypes relative to the “life worth” of defendants and victims.  Jurors tended to associate blacks with lazy, aggressive, and worthless characteristics; they associated whites with virtuous, hardworking and valuable characteristics.

The implicit biases expressed by the participants became exacerbated once the researchers determined who would actually be eligible to serve on a death penalty jury. Unlike an ordinary criminal trial, jurors in capital cases must be “death-qualified” – meaning that they must be willing to impose a death sentence in a given case (thus, jurors who would “automatically” vote for death or never vote for death are to be excluded during jury selection).  On a practical level, the researchers suggest that “death-qualification” actually removes the less biased jurors from the jury pool.  There has long been a concern that death-qualified jurors are more conviction-prone than ordinary juries in non-capital cases.  In this instance, however, the researchers discovered that death-qualification “results in capital jurors with significantly stronger implicit racial biases” serving on the jury. Thus, the process of death-qualification itself, which was a designed as a procedural safeguard to ensure that a fair and impartial jury is selected in a death penalty case, may in fact intensify the influence of race in death penalty decision-making.

These findings threaten the foundation upon which the legitimacy of the death penalty system in America depends.  Jurors are entrusted with the awesome responsibility to determine if another person will live or die.  And this decision is entirely dependent upon jurors’ perceptions of the evidence in aggravation and mitigation of punishment.  But if death penalty jurors unconsciously assign more worth to the lives of whites than to the lives of blacks upon hearing the evidence, then the entire function of the jury as a representation of the community and as a check on arbitrariness is undermined.

This initial examination of implicit bias in the capital case context may be the tip of a much larger iceberg: the decisions of law enforcement during the investigation of homicides, the discretion exercised by prosecutors in any potential capital case, and the decisions of parole boards and governors may also be influenced by implicit biases.  These areas are, as yet, unexamined, but should be.

The critical question now presented is what do we do with these data? All of us harbor implicit biases. For years, an implicit bias test has been available on the internet that serves as a startling – albeit enlightening – tool of self-awareness for any person inclined to take it.  And the idea that we may value white lives more than black lives when determining who should be subject to the death penalty might come as no surprise to some. One need only look at the disparate media attention given to white victims over black victims of homicide; or to white children who go missing verses black children.  But unequal treatment by the press in its quest for greater ratings cannot be compared to disparate treatment, by a government of the people, in determining which of its citizens will be sent to the execution chamber.

We now know that those who are most likely to end up on a death penalty jury harbor the strongest of implicit biases.  In light of these findings, policymakers and courts are now faced with some very serious questions concerning whether the many procedural rules erected after the Supreme Court’s 1972 decision in Furman v. Georgia sufficiently guard against arbitrariness in death sentencing. In the death penalty case of Callins v. Collins (1994), Supreme Court Justice Blackmun opined that “…the problems that were pursued down one hole with procedural rules and verbal formulas have come to the surface somewhere else, just as virulent and pernicious as they were in their original form.” In the area of racial bias – implicit or explicit, we may be experiencing a truly intractable problem as described in Justice Blackmun’s famous lamentation.

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