If we’re honest with ourselves, because of the history of our country, and because of the images we receive as we’re growing up etcetera—oftentimes there’s a presumption that Black men are dangerous. And so, that has to be worked through. And so police officers who are getting that training end up being able to engage and de-escalate encounters more effectively.
—President Barack Obama
In the past few years, technology and social media have allowed the world to see the victimization of unarmed Black men and women by law enforcement. High-profile cases such as those of Eric Garner, Michael Brown, Tamir Rice, John Crawford, Walter Scott, Freddie Gray, and Sandra Bland have sparked social movements, protests, demonstrations, and public discourse as it relates to race and the fight against social injustice. Those movements have forced many people to address, or at the very least acknowledge, that there is a racial bias problem in America and that it impacts our entire society, especially the criminal justice system.
Although “overt racism” is not as prevalent now as it was during other periods in American history, psychologists have discovered that a person may not consciously be aware that his or her own seemingly unbiased actions are embedded in racist stereotypes. Implicit bias is a term that has become increasingly popular to describe the prejudices that people may have against another person. According to the Kirwan Institute, “implicit bias refers to the attitudes or stereotypes that affect one’s understanding, actions, and decisions in an unconscious manner.” In other words, the Kirwan Institute explains, people form both favorable and unfavorable assessments about others based on characteristics such as race, ethnicity, age, and appearance, without consciously deciding to do so. Through exposure to direct and indirect messages, including media and news programming, people’s biases begin to develop at an early age. Researchers of implicit bias have determined that, to some degree, everyone possesses biases that affect how we view our world. Once the bias is formed, people subconsciously look for information that affirms their existing beliefs.
There is a long-standing history of laws, policies, and societal norms in the United States that has dehumanized people of color, particularly African Americans and criminalized their free existence. For more than 200 years, African Americans were considered property that could be bought and sold. The justification for legalized slavery was based on the idea that Blacks were inferior and sub-human. After the Civil War, from 1865 through 1866, many laws were enacted to continue to keep now freed African Americans at the bottom of the socio-economic system and to push them back into slave labor. For example, vagrancy laws forced many ex-slaves to sign labor contracts that required them to return to plantations and work for White “masters.” African Americans who were homeless or were unable to show their employment papers were arrested and fined. If a person was unable to pay the fine, they were jailed and sentenced to county labor or hired out to a private employer or plantation owner. These vague vagrancy laws allowed police to stop and harass Blacks on the mere suspicion that they were engaging in “criminal activity.”
Although conditions improved for African Americans from 1867 to 1877, the rise of supremacy groups like the Ku Klux Klan stalled, and in many ways, pushed back, any progress that had been made. After the Reconstruction era, a new set of laws emerged known as Jim Crow laws that were designed to keep the races separate. In 1896, the US Supreme Court upheld state segregation laws in the landmark constitutional case, Plessy v. Ferguson. Ministers and theologians also supported Jim Crow. They claimed that God intended separatism between the races and that Blacks were created to be servants. White scientists and Social Darwinists also made claims that Whites were the dominant race, and that they were both educationally and culturally superior. The Ku Klux Klan was portrayed as heroic members of society that kept “law and order” and saved the South from Blacks taking control during the Reconstruction era. After years of demonstrations, marches, and the death of many protestors, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were passed, outlawing many of these rules and practices. Yet hundreds of years of cultural and social conditioning had already left its mark.
The social conditioning of a racial hierarchy throughout history and the way Blacks are portrayed in the media contributes to how Blacks are perceived and treated today. A few months ago, a story emerged on several news outlets regarding a Black doctor on a flight who raised her hand to assist a passenger who was sick on a plane. According to media reports, the flight attendant responded, “oh no, sweetie put your hand down; we are looking for an actual physician or nurse or some type of medical personnel. We don’t have time to talk to you.” The flight attendant’s internalized biases made her unable to accept that the African American woman could be a doctor.
Unfortunately, news programming and other media sources feed into these stereotypes and continue to depict people of color as less intelligent with the propensity to commit crimes. Studies, including one by the Sentencing Project, have found that news programs overrepresent people of color as criminals and Whites as crime victims. A study conducted by Color of Change looked at the “actual” average in 2010–2013 of the New York City Police Department’s arrest rate for Black people for murder, assault, and theft, and the “representation” of Black people as arrestees or suspects for those crimes on the four major New York City news affiliates. Researchers found that three out of four stations overrepresented Blacks as criminals by 19 percentage points. The highest distortion index was 31 percent.
Research has proven that people who continuously receive messaging that negatively depicts African Americans are more likely to internalize those images as truths. (See Qingwen Dong & Arthur Phillip Murrillo, The Impact of Television Viewing on Young Adults’ Stereotypes Towards Hispanic Americans.) In 2010, a national survey asked White participants to estimate the percentage of African Americans committing crimes such as burglaries, illegal drug sales, and juvenile crime. The participants overestimated actual Black involvement in these crimes, as measured by arrest, by approximately 20 to 30 percent. (See Nazgol Ghandnoosh, Ph.D., Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies (September 2014), citing Pickett, J. T., Chiricos, T., Golden, K. M., & Gertz, M. (2012). Reconsidering the Relationship Between Perceived Neighborhood Racial Composition and Whites’ Perceptions of Victimization Risk: Do Racial Stereotypes Matter? 50(1), 145–186 (p. 155–6, 160).) In a 2002 survey, participants estimated that 40 percent of people who committed violent crimes were African American when the actual rate was 29 percent according to crime victimization surveys. Participants also overestimated the overall rate of violent crimes committed by Hispanics.
A new study released in July 2016 regarding the effects of “ban the box” laws on low-skilled workers aligns with the above research. “Ban the box” laws prevent employers from asking job applicants about their criminal history to prevent employers from discriminating against people with a criminal record. Unfortunately, researchers found that employers who were not able to ask applicants about their criminal record began discriminating more broadly against Black and Hispanic males on the assumption that these men had a criminal history. Consequently, “ban-the-box” policies worked well for Whites with a criminal background but decreased the probability of being employed by 5.1 percent for young, low-skilled Black men, and 2.9 percent for young, low-skilled Hispanic men.
This assumption that all or most Black men are dangerous criminals can have detrimental consequences, especially when the biased person holds power or authority, and is unaware of his or her prejudices. This situation is even more concerning as it relates to bias in the criminal justice system. According to the Center for American Progress, 1 in every 15 African American men and 1 in every 36 Hispanic men are incarcerated in comparison to 1 in every 106 White men. With regard to sentencing, Blacks and Latinos in state and federal courts are more likely to be incarcerated and receive longer sentences than similarly situated White offenders in some jurisdictions. In the federal system, as calculated by the ACLU, sentences for Black males are almost 20 percent longer than sentences for White males convicted of similar crimes. In New York City, between 2004 and mid-2012, the police stopped more than 4 million people; almost 90 percent of those stopped were Black or Latino, and only 12 percent of Black and Latinos stopped were charged with a crime. In 2008, a class-action suit was filed against New York City, claiming the New York Police Department was illegally stopping and frisking individuals without any reason other than race. In Floyd v. The City of New York, 959 F. Supp. 2d 540 (SDNY. 2013), a federal court found that New York City’s “stop and frisk” policies involved racial profiling and unconstitutional stops.
The Department of Justice has also investigated police departments across the nation and has found a pattern or practice of racial bias. In 2015, the Department of Justice reported that the Baltimore Police Department disproportionately stopped African American pedestrians in each of Baltimore’s nine police districts, and were also more likely to stop African Americans multiple times within a short period of time. In the five and a half years of data collected, African Americans accounted for 95 percent of the 410 individuals that the police stopped at least 10 times. One African American man in his mid-fifties was stopped 30 times in less than four years, yet none of the 30 stops resulted in a citation or criminal charge. African American drivers were also stopped and searched at disproportionate rates, even though searches of African Americans were less likely to discover contraband. In fact, Baltimore police officers found contraband twice as often when searching White individuals compared to African Americans during vehicle stops, and 50 percent more often during pedestrian stops. With regard to criminal offenses charged, African Americans accounted for 86 percent, despite making up only 63 percent of Baltimore residents. Those disparities were even starker for discretionary offenses. African Americans accounted for 91 percent of the 1,800 people charged solely with failure to obey or trespassing; 89 percent of the 1,350 charges for making a false statement to an officer, and 84 percent of the 6,500 people arrested for disorderly conduct. Similar statistics have been found in other police departments, such as in San Francisco and Ferguson, Missouri.
Unfortunately, racial bias also affects children and youth. According to the US Department of Education Office for Civil Rights, disparities in school suspension rates between White students and students of color are seen as young as pre-school. Although studies fail to show that Black students misbehave at higher rates than White students, Black students are three times more likely to be suspended or expelled. A 2002 study found that White students were more likely to be disciplined for non-discretionary offenses such as smoking, vandalism, and obscene language, while Black students were more likely to be disciplined for discretionary acts such as disrespect. Libby Nelson & Dara Lind, The School to Prison Pipeline Explained (February 2015). With regard to student arrest and referrals to law enforcement, in 2011–2012, Black children made up 16 percent of all enrolled children; however, they accounted for 31 percent of all in-school arrests. For the 2009–2010 school year, Black and Hispanic students represented more than 70 percent of in-school arrests or police referrals. Rachel Wilf, Disparities in School Discipline Move Students of Color Toward Prison (March 2012).
Social media and advances in technology have allowed people to see some of the harsh realities that African Americans face as a result of internalized biases. Images such as those of Eric Garner dying from a choke-hold while being arrested on the mere suspicion of selling single cigarettes from packs without tax stamps, or the police firing shots at a 12-year-old Tamir Rice who was playing with a toy gun in a community park, have opened the door for political, legal, and community activism. In addressing a town hall, President Obama highlighted the importance of establishing strong community-police relationships through training police officers on how to recognize and eliminate implicit bias. In June 2016, the Department of Justice announced as part of its regular training curriculum that it would include a course on implicit bias that all prosecutors and law enforcement agents would be required to take.
Within the American Bar Association, Past-President Paulette Brown, during her term in 2015, outlined as one of her key initiatives to eliminate bias and enhance diversity in the legal system. As a result of her leadership, the ABA adopted a policy that encourages groups responsible for Mandatory Continuing Legal Education to require diversity and inclusion as a separate and distinct credit. The ABA Section of Litigation also launched a website to help combat implicit bias in the justice system. This website includes video training, an implicit bias test, and a toolbox to be used for group presentations. There have also been several campaigns to end the school-to-prison pipeline, and schools have begun amending their disciplinary handbooks to incorporate restorative justice policies. Some of those practices include peer-mediated small groups, peer juries, community service, and classroom circles to resolve conflict and to teach students how to recognize and manage their emotions. There are also diversity tool kits online, as well as other resources, such as implicit bias training that are geared toward teachers and faculty members.
Despite the distressing statistics and examples, Americans can be encouraged that research is being done around these issues and that some institutions are actively working to tackle these problems. In an effort to keep the momentum going, and to see a greater impact nationwide, attorneys must be actively involved. If you are a young lawyer who wants to help combat implicit bias but are unsure where to begin, here are a few suggestions to get you started:
