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January 01, 2017

Confronting Implicit Bias: An Imperative for Judges in Capital Prosecutions

by Gregory S. Parks, Hon. Andre M. Davis

The esteemed lawyer Jonathan Rapping, founder and director of the non-profit Gideon’s Promise, has often said that the most obvi­ous feature of our legal system is the disparate treatment of African Ameri­cans. In no context is this observation more true and profound than in the administration of capital punishment. Therefore, our evolving appreciation for the adverse effects of automatic, subconscious, and implicit bias in vir­tually every domain of civic life holds important lessons for criminal justice policymakers, advocates, and judges, all of whom are involved in our death penalty system. The assumption that human thoughts are accessible to con­scious awareness and that behavior is largely governed by conscious voli­tion has been debunked in recent years. Reports of a person’s cognitive pro­cesses are often inconsistent with his or her “actual” judgments. Many psy­chological influences on judgment and decision making operate wholly out­side of conscious awareness.

One way in which subconscious judgments manifest is in the context of judgments of groups of individu­als, particularly “out-groups.” Some reasons for this are evolutionary or neuropsychological; some emerge from our earliest experiences with our parents’ values and attitudes, which become our shared values, or from the media that washes over us on a con­sistent basis. Given our racial legacy, it should be no surprise that 75–90 per­cent of whites, 65 percent of Asian and Latino Americans, and 35–60 percent of blacks harbor automatic, implicit negative judgments of blacks and posi­tive ones of whites, regardless of many people’s expressed support of egalitar­ian norms.

Even more, the social scientific lit­erature underscores that blacks (and not whites) are implicitly perceived as a threat and hostile, which is particularly important to consider in the context of racial disparities in death penalty sen­tencing—the punishment that should be reserved for the most “threatening” people or horrific crimes. For exam­ple, on neuroimaging measures, whites show more activation in the region of the brain associated with fear when they view black faces. Where there is a confrontation between people, whites also implicitly construe those interac­tions as more aggressive and hostile when there is a black perpetrator.

In the context of our criminal jus­tice system, the research is even starker. Whites implicitly associate blacks (and not whites) with images of non-human primates, and the more easily they do so, the more inclined they are to endorse police violence against blacks. Not surprisingly, in studies of actual cases in Florida, Georgia, and Pennsylvania, researchers found that inmates with more prototypi­cally black facial features (thicker lips, wider noses, etc.) were given longer (eight-month) sentences than those with less prototypically black features. Another study found that not only do blacks receive sentences 4.25 percent higher than whites, but medium- and dark-skinned blacks also receive sentences that are 4.8 percent higher than those for whites. Interestingly, light-skinned blacks receive sentences almost of the same severity as whites. Researchers also found that in cases involving a white victim, the more prototypically black the defendant was perceived to be, the more likely he or she was sentenced to death.

While perhaps surprising, it is worth noting that even many capital defense attorneys have demonstrated high levels of implicit, anti-black bias. Accordingly, it may be unsurprising that other partici­pants in the criminal adjudication process also have biases that influence their deci­sion making. Significantly, jury studies demonstrate that race has predicted juror judgments: where looking at the same evi­dence, jurors have deemed such as more indicative of guilt with respect to black/ darker skin–toned defendants. This is another reason it is important to have racially diverse juries in capital cases, which Batson v. Kentucky and its progeny make clear is not simply a latent desire, but a constitutional mandate. In fact, one idea gaining traction is the use of preliminary instructions during voir dire to educate prospective jurors about implicit bias.

Finally, and perhaps most importantly, judges are not exempt from these biases. In a study of trial court judges, researcher found that judges with greater implicit anti-black biases meted out harsher punishments. However, where race was a front-and-center issue in the case, judges seemed able to override their biases and come to a fairer sentence.

Despite the unquestioned power and authority of prosecutors, we sub­mit that judges are the real engineers of the criminal justice train. Fortunately, the judicial system is trying to improve what judges know about this research and to eradicate the insidious effects of implicit bias in the justice system. At a minimum, we believe it is imperative that judges:

  • Attend to their own mindset and be more humble in wanting to learn;
  • Slow down the frequent rush to judgments in and out of the courtroom, as speed and urgency heighten the effects of bias; and
  • Activate their conscious motiva­tions to be fair and aware.

Beyond these rudimentary but important prescriptions, judges must recall that they are the guardians of the presumption of innocence, the indispensable foundation for our sys­tem of justice. Thus, judges must truly embody this presumption for the jury in their words, body language, and atti­tudes displayed in the courtroom, as jurors often take their behavioral and attitudinal cues from judges. So unless judges work to recognize the implicit biases first in themselves and then in the other actors critical to the criminal justice system, the goal of fundamen­tal fairness will be put in jeopardy. This is a risk we cannot afford, particularly when it comes to our use of the most severe punishment. 

Gregory S. Parks, JD, PhD, is an associate professor of law at Wake Forest University School of Law. The Honorable Andre M. Davis is a senior circuit judge with the United States Court of Appeals for the Fourth Circuit.