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A history of american judicial system and its issues surrounding racial and gender bias

University of Pretoria South Africa. Explicit racial prejudice, however, is only part of the problem. Equally important - and likely more pervasive - is the phenomenon of implicit racial prejudice: Empirical research shows convincingly that these biases against socially disfavoured groups are i pervasive; ii often diverge from consciously reported attitudes and beliefs; and iii influence consequential behaviour towards the subjects of these biases.

The existence of implicit racial prejudices poses a challenge to legal theory and practice. From the standpoint of a legal system that seeks to forbid differential treatment based upon race or other protected traits, if people are in fact treated differently, and worse, because of their race or other protected trait, then the fundamental principle of anti-discrimination has been violated.

It hardly matters that the source of the differential treatment is implicit rather than conscious bias. This article investigates the relevance of this research to the law by means of an empirical account of how implicit racial bias could affect the criminal trial trajectory in the areas of policing, prosecutorial discretion and judicial decision-making. It is the author's hypothesis that this mostly American research also applies to South Africa.

The empirical evidence of implicit biases in every country tested shows that people are systematically implicitly biased in favour of socially privileged groups. Even after 1994 South Africa - similar to the US - continues to be characterised by a pronounced social hierarchy in which Whites overwhelmingly have the highest social status.

The author argues that the law should normatively take cognizance of this issue. After all, the mere fact that we may not be aware of, much less consciously intend, racecontingent behaviour does not magically erase the harm.

The article concludes by addressing the question of the appropriate response of the law and legal role players to the problem of implicit racial bias.

Racial bias; Implicit racial bias; Racism; Implicit Association Test; Prosecutorial Discretion; Judicial Decision-making Virtue is a state of war, and to live in it we have to always combat with ourselves - Jean-Jacques Rousseau 1 Introduction In the previous part of this article 1 I examined the empirical evidence that shows implicit racial bias in society to be systematic, robust and pervasive.

I also made out a case for why the law should take notice of implicit racial bias. In this part I continue the discussion of the relevance to the law of this body of research, with specific focus on implicit bias leading up to and in the courtroom. In this regard I give an empirical account of how implicit bias may potentially influence the criminal litigation trajectory.

Then I consider some legal-normative issues surrounding implicit bias. I conclude by addressing the question of the appropriate response of the law and legal role players to the problem of implicit racial bias. In fact, an extensive body of empirical research in the United States has demonstrated that implicit racial biases may influence the perceptions, judgments and behaviour of police officers, prosecutors and judges, and hence the way in which Black defendants are treated and judged, as compared with their White counterparts.

Firstly, on the basis of a crime report the police investigate particular areas and persons of interest and ultimately arrest a suspect. Secondly, the prosecutor decides to charge the suspect with a particular a history of american judicial system and its issues surrounding racial and gender bias. Thirdly, the prosecutor makes recommendations and the presiding judicial officer makes decisions about bail and pre-trial detention.

  • Also, participants made more mistakes false alarms and shot more unarmed Black targets than unarmed White targets;
  • Without such awareness, and with this bias operating automatically, they could not explicitly control for or correct the potential bias;
  • This would require that judges become internally persuaded that a genuine problem exists.

Fourthly, the defendant decides whether or not to accept a plea bargain after consulting his defence attorney or Legal Aid attorney. Fifthly, the case proceeds to trial, and the presiding officer not only manages the proceedings, but also makes decisions about evidentiary motions, objections, witness credibility and, ultimately, about the defendant's guilt.

Finally, if the accused is convicted, the prosecutor makes sentencing recommendations and the presiding officer ultimately decides upon the appropriate sentence. Clearly, implicit biases need to sway only a few of the countless decisions at each stage along the spectrum of discretionary points to aggregate into a substantial effect.

For the sake of manageability, I focus on some of the more striking experimental results that might feature during the police encounter, in the exercise of prosecutorial discretion, and in judicial decision-making at trial and sentencing. He seemed suspicious, so they decided to question him. Moments later, Diallo lay dead. The officers, believing that he was reaching for a gun, had fired 41 shots at him, 19 of which struck home.

The item that Diallo was reaching for was not a gun, but his wallet. The officers were charged with second-degree murder. Their principal defence was that they genuinely believed their lives to be in danger. Their argument succeeded and they were acquitted.

Of course, Diallo was by no means the only incident of white police officers mistakenly and fatally shooting an unarmed Black person in the United States in recent memory.

In fact, there are a number of highly publicised incidents almost every year. Information compiled by the Bureau of Justice Statistics indicates that African Americans are four times more likely than Whites to die during an encounter with a law enforcement officer.

A history of american judicial system and its issues surrounding racial and gender bias

In the wake of this incident, several laboratories created controlled environments analogous to the police officers' situation to examine the psychological underpinnings of implicit racial bias that could lead to such devastating results.

Eberhardt et al 12 demonstrated the bi-directional activation between "Black" and "criminality". When participants were subliminally primed with a Black male face as opposed to a White male face or no face at all, they were able to more quickly distinguish the faint outline of a weapon that slowly emerged from visual static. Thus, by implicitly thinking "Black", the participants more quickly saw a weapon.

  1. Information compiled by the Bureau of Justice Statistics indicates that African Americans are four times more likely than Whites to die during an encounter with a law enforcement officer. Finally, if the accused is convicted, the prosecutor makes sentencing recommendations and the presiding officer ultimately decides upon the appropriate sentence.
  2. They found troubling differences between the race and gender composition of the courts and the communities they serve.
  3. Conversely, they failed to shoot more armed White targets misses than armed Black targets. As described above, empirical research bears out that most Americans and, as I argue below, this is likely the case for most South Africans as well hold implicit racial stereotypes that associate Blacks with aggression and hostility and, specifically, that associate Blacks with weapons.

Interestingly, this phenomenon also occurred in the reverse. Thus, not only did the idea of "Black" trigger weapons, but participants being subliminally primed with drawings of weapons also triggered visual attention more quickly to Black male faces than White male faces.

It bears repeating that in this study the primes were all flashed subliminally.

Participants are confronted with photographs of an individual a "target" holding an object, superimposed on various city landscapes such as bust stops and parks. If the object is a weapon, the participant has to press one key to shoot. If the object is harmless such as a cell phone, wallet or cold drink the participant must press another key to holster the weapon.

Not surprisingly, under severe time pressure the participants made mistakes. However, their mistakes were not randomly distributed. Shooting behaviour systematically correlated with the race of the target. Participants were quicker to shoot when the target was Black than when the target was White.

Also, participants made more mistakes false alarms and shot more unarmed Black targets than unarmed White targets. Conversely, they failed to shoot more armed White targets misses than armed Black targets. This suggests that shooter bias is firmly rooted in the culturally held implicit racial stereotype linking Blacks to danger. This charging power is inherently an expression of mercy, ie should the legitimate power of the State be reined in or not?

It is trite that prosecutors exercise vast and largely un-reviewable discretion in their charging and plea-bargaining decisions. The deceased became angry and warned the suspect that "He's going to get it!

The suspect, believing that the deceased was reaching for a gun, pulled out his own handgun and fatally shot the deceased. In order to assess the strength of the self-defence claim to determine whether charges should be brought for murder or whether a plea-bargain for manslaughter or some other less serious offence might be appropriate, prosecutors must make an instinctual judgment: This judgment is not made in a race-neutral vacuum.

As described above, empirical research bears out that most Americans and, as I argue below, this is likely the case for most South Africans as well hold implicit racial stereotypes that associate Blacks with aggression and hostility and, specifically, that associate Blacks with weapons. Applying this research to the scenario above, it is more than likely that prosecutors would perceive the Black victim as having reached for a weapon.

By contrast, IAT findings suggest that people hold positive stereotypes about Whites, such as "law-abiding", "trustworthy" and "successful", and specifically that they dissociate Whites and weapons. Of course, these dynamics would be amplified in a cross-racial shooting, because implicit racial bias would affect the evaluation of both the suspect and the victim's behaviour. I do not suggest that prosecutors consciously think about a Black suspect or victim and consciously decide that Blacks are hostile and violent, and therefore that they are more likely to shoot or that they can more justifiably be shot.

In fact, most prosecutors would expressly - and genuinely - disavow such conscious thought processes. However, as emphasised in the first part of this contribution, these negative stereotypes operate subconsciously and automatically. That is what makes implicit racial bias so insidious. What about defence attorneys? In general one might think that - because they are frequently put in the role of interacting with clients belonging to disfavoured social groups and because they are often ideologically and professionally committed to racial equality - defence attorneys as a group might have implicit racial biases materially different from the rest of the population.

However, Eisenberg and Johnson found evidence to the contrary. As measured by the IAT, capital punishment defence attorneys show implicit racial bias against Blacks approximately to the same extent as does the population at large. If ordinary adults carry a "bigot in the brain", as an article in Scientific American Mind referred to implicit biases, then data collected by Rachlinski et al 29 suggest that: Before returning to the Rachlinski et al study, let us consider a broader statistical overview of evidence of racial bias in bail setting and sentencing which, in the United States as in South Africa, falls squarely within the purview of the trial judge.

Blair and her colleagues 35 took photographs from a database of criminals convicted in Florida and asked participants to judge how Afrocentric both Black and White defendants look on a scale from one to nine.

The goal was to determine whether race correlated with actual sentencing. After controlling for the seriousness of the a history of american judicial system and its issues surrounding racial and gender bias and other factors, the researchers found that the race of the defendant was statistically insignificant. Thus, White and Black defendants were sentenced without discrimination based upon race. However, they found another curious correlation: If judges are motivated to avoid racial discrimination, they may be on guard against the danger of treating similarly situated Black and White defendants disparately.

By contrast, judges have no conscious awareness that Afrocentric features might trigger implicit negative stereotypes of criminality and violence that could influence their judgment.

Without such awareness, and with this bias operating automatically, they could not explicitly control for or correct the potential bias. The researchers then asked them to make decisions in two hypothetical court scenarios in which the race of the legal actor was ambiguous and was subliminally primed.

Lastly, they were asked to decide a hypothetical case in which the race of the legal actor was explicitly stated as either Black or White. Firstly, judges, like the rest of us, carry implicit biases concerning race. The researchers found a "strong white preference" among the White judges - in fact "significantly stronger" than that observed among White participants on the IAT generally.

Indeed, the research findings with regard to the ways in which implicit racial bias might influence decision-making in criminal cases are substantial and robust. All these studies, in the aggregate, suggest that implicit racial bias in the trial process is a problem worth worrying about.

It is my hypothesis, which is of course subject to empirical verification in the course of time, that the research results in the United States would generally hold true for South Africa as well. The empirical evidence of implicit biases in every country tested 47 clearly shows that these biases are not randomly oriented. Rather, people are systematically implicitly biased in favour of socially privileged groups, ie groups higher in the social hierarchy. A 2011 study reveals that Black, Coloured and White children showed highly similar race preferences: Since the end of apartheid, South Africa has overcome great obstacles and made many strides in overcoming social injustices.

However, demographic data reveal that, even post 1994, South Africa continues to be characterised by a pronounced social hierarchy in which Whites overwhelmingly have the highest social status. Although there are large income disparities in the United States as well, South Africa's racial hierarchy predicated on wealth is particularly extreme. In South Africa race appears to be a social category that is particularly deeply associated with differences in wealth.

In addition to children's general tendency to associate higher status racial groups with higher value belongings, South African children tend to prefer individuals who are members of these higher status racial groups ie White over Coloured and Coloured over Black.