ABA Criminal Justice
Section
Probing The Mind
Racial Profiling On the Streets, in
Court, Even at Your Law Office
Hon. Bernice Donald – Sixth Circuit Court of Appeals
Hon. Mark W. Bennett – U.S. Dist. Judge for the N.D.
of Iowa
Explicit v. Implicit Bias
A. Stereotyping and discriminatory bias is often conscious
and explicit. A good example of this is Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989). When a
highly successful woman was denied partnership, her
supervisor advised her to “walk more femininely, talk
more femininely, dress more femininely, wear make-up,
have her hair styled, and wear jewelry.”
B.
More often today bias is unstated and hidden. Social
scientists also refer to hidden bias as cognitive,
automatic, or implicit bias. It is nonetheless powerful
and pervasive.
Riddle
A father and his son are out driving.
They are involved in an accident.
The father is killed, and the son is
in critical condition. The son is
rushed to the hospital and prepared
for the operation. The doctor comes
in, sees the patient, and exclaims,
"I can't operate, it's my son!" How
can this be?
Only 35% of over 200 subjects answered the riddle
correctly: the doctor is the boy’s mother.
Most popular wrong answers given:
 doctor was stepfather
 father was gay
 “it’s impossible”
What pops into your head when you think of “Doctor”?
or
Leena Olive Smith
• Born – 1885 – Kansas
• 1905 – moved to
Buxton, Iowa
• 1913 Olive Hair Store
• 1915 -Real Estate
Agent
• 6th floor – Plymouth
Bldg.
• 1916 – Northwestern
College of Law
• 7th floor – Plymouth
Bldg.
• 1921 – age 35
• First AfricanAmerican female
lawyer admitted to
Minnesota Bar
“The court fully realizes I am sure, that the very fact that the
defendant was a colored boy and the prosecutrix a white
woman, and the entire panel composed of white men – there
was a delicate situation to begin with, and counsel for the
State took advantage of this delicate situation . . [P]erhaps
[the jurors] were, with a few exceptions, conscientious in
their expressions [of no race prejudice]; yet it is common
knowledge a feeling can be so dormant and subjected to
one’s sub-consciousness, that one is wholly ignorant of its
existence. But if the proper stimulus is applied, it comes to
the front, and more often that not one is deceived in
believing that it is justice speaking to him; when in fact it is
prejudice, blinding him to all justice and fairness.
Def’s Mot. for New Trial, State of Minn. v. Haywood, (4th Dist. Ct. 1928) (No.
26241)(filed June 18, 1928)
What is Project Implicit?
• Yale University, 1998
• Now at Harvard, Virginia, & Washington
Universities
• 2003 – took off with research grant from
National Institute of Mental Health
• Over 6 million tests since 1998
• Now averaging 15,000 per week
What is Project Implicit (cont.)?
• Virtual Laboratory testing for bias:
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Race
Gender
Disability
Age
Religious
Weight
Arab-Muslim
Skin tone
Asian American
Sexuality
I.A.T.
• Implicit Association Test
– Implicit bias is found when faster responses
are given when African American is paired with
“bad” than when African American is paired
with “good”
I.A.T.
• Implicit Association Test
– Implicit bias is found when faster responses
are given when African American is paired with
“bad” than when African American is paired
with “good”
– I.A.T. findings:
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Implicit biases are pervasive
People are often unaware of their implicit biases
Implicit biases predict behavior
People differ in levels of implicit bias
– Validity of the I.A.T.
fMRI
Prejudice Network
Stereotyping Network
The “Big Five” Orchestras
Are Emily & Greg More Employable
than Lakisha & Jamal?
Racial Discrimination Among NBA
Referees
Physicians and Implicit Bias
• First use of the I.A.T. to systematically observe the
behavior of health care professionals
– Atlanta/Boston – 220 internal and emergency residents
– Clinical Vignette:
• Mr. Thompson
• 50 year old
• Presents with sharp/stabbing pain
– Does implicit or explicit race bias predict a physician’s
decision to clot bust using thrombolytic drugs?
– Explicit bias: doctors expressed equal preference for
black and white
– Implicit racial bias was medium or large in magnitude
Alexander Green, et. al., Implicit Bias among Physicians and its Prediction of Thrombolysis
Decisions for Black and White Patients, 22 Journal of General Internal Medicine 1231 (2007).
Shooter Bias Studies
The turban effect: The Influence of
Muslim headgear in the shooter bias
paradigm
Christian Unkelbach et al., The Turban
Effect: The Influence of Muslim Headgear
and Induced Affect on Aggressive
Responses in the Shooter Bias Paradigm,
44 J. EXPERIMENTAL SOC. PSYCHOL. 1409
(2008)
Shooter Bias (cont.)
• Two Follow-up studies
– First Study:
• ERP’s (event-related brain potentials)
– Stereotypes affect shooter bias through those
portions of the brain that influence threat and
conflict detection processes
– Black targets seem more threatening than White
targets
– White targets conflict more strongly with the
tendency to shoot than Black targets
Event –related Potentials and the Decision to Shoot: the Role of Threat
Perception and Cognitive Control , 42 Journal of Experimental Social
Psychology 120, 127 (2006).
Shooter Bias (cont.)
• Two Follow-up studies
– Second Study:
• Comparing police officers with community
members and university students
• Shooter bias exists for community
members/university students but not for police
officers
• Police officers showed no racial bias, implicit or
otherwise, in their decisions to shoot the armed and
not shoot the unarmed – regardless of race
Across the Thin Blue Line: Police Officers and Racial Bias in the Decision
to Shoot, 92 Journal of Personality and Social Psychology 1006 (2007).
Misremembering Facts
Justin D. Levinson, Forgotten Racial
Equality: Implicit Bias, Decisionmaking,
and Misremembering, 57 DUKE L.J. 345
(2007)
Looking Deathworthy
Jennifer L. Eberhardt et al., Looking
Deathworthy: Perceived Stereotypicality of
Black Defendants Predicts CapitalSentencing Outcomes, 17 PSYCHOL. SCI. 383
(2006)
Implicit Bias and Ambiguous
Evidence
Justin D. Levinson & Danielle Young,
Different Shades of Bias: Skin Tone,
Implicit Racial Bias, And Judgments of
Ambiguous Evidence, 112 W. VA. L. REV.
307 (2010)
Levinson Empirical Study
• Participants read two unrelated stories: one about a fistfight
the second about a employee who was terminated
• Independent variable: race of story protagonist
• Fight story - William, a Caucasian; Tyronne, an AfricanAmerican
• Employment termination story: Brenda, a Caucasian; Keisha,
an African-American
• Participants misremembered certain legally relevant and
important facts in a racially biased manner
• Participants who read about Tyronne recalled 80.2% of
aggression facts
• Participants who read about William recalled 68.8% of
aggression facts
• Participants falsely remembered Brenda being Employee of
the Month 17% of the time and Keisha 10%
Levinson Study (Cont.)
• Memory bias and explicit racial preference
(SDO Scale) not typically correlated
• One surprising correlation: Participants
who favored racial equality on SDO Scale
more likely to have false memory that
Tyronne kicked James and less likely to
accurately recall that Tyronne was trying
to push James rather than punch him.
Stereotypes Drive Recall Errors
and False Memory Generation
• People recall stereotype-consistent information more
easily than stereotype-inconsistent information
• Stereotypical crimes: White crimes: ecstasy usage &
identity fraud; Black crimes: crack usage and shoplifting;
and race neutral crimes: marijuana usage and joyriding
• Study presented participants with above crime scenarios
• Race of crime perpetrator varied
• Participants more likely to recall race of perpetrator when
matched with racial stereotype
People Are More Likely to Generate
False Memories When the Contents Are
Consistent with Stereotypes About the
Content or Actor in the Memory
• False memories and stereotypes go
hand in hand based on brain function
• Stereotype-consistent information is
stored in broad brain schemas - not
deeply encoded in brain
Presumption of Innocence
Justin D. Levinson et al., Guilty by Implicit
Racial Bias: The Guilty/Not Guilty Implicit
Association Test, 8 OHIO ST. J. CRIM. L. 187
(2010)
Does Unconscious Racial
Bias Affect Trial Judges?
Jeffrey J. Rachlinski, Sheri Lynn Johnson, Andrew
J. Wistrich & Chris Guthrie, Does Unconscious
Racial Bias Affect Trial Judges?, 84 Notre Dame
L. Rev. 1195 (2009)
This article reports the results
of the first study of implicit
racial bias among judges
IAT Testing Results
• Results of IAT testing:
1. Strong White preference among White judges
2. No real preference among Black judges
3. Black judges comparable IAT scores as Blacks
on the internet
4. White judges statistically stronger White
preference than Whites on the internet
William T. Pizzi et al., Discrimination In
Sentencing On The Basis Of Afrocentric
Features, 10 MICH. J. RACE & L. 327 (2005)
L. Song Richardson & Phillip Atiba Goff,
Implicit Racial Bias In Public Defender
Triage, 122 YALE L.J. 2626 (2013)
ABC – What Would You Do?
Hosted by John Quinones
• Stolen Bike Scenario – Friday, May 7,
2010 – Repeat, July 8, 2011
I will not decide the issues in this case
based on biases.
- This includes gut feelings, prejudices,
stereotypes, personal likes or dislikes,
sympathies, or generalizations.
You must decide during your deliberations whether or not the
prosecution has proved the guilt of each defendant on each
offense charged beyond a reasonable doubt. In making your
You must
not decide this case based on personal likes
or dislikes, generalizations, gut feelings,
prejudices, sympathies, stereotypes, or
biases. The law demands that you return a just verdict,
decision, you are the sole judges of the facts.
based solely on the evidence, your individual evaluation of
that evidence, your reason and common sense, and these
instructions.
As we discussed in
jury selection, everyone, including me, has feelings,
assumptions, perceptions, fears, and stereotypes, that
is, “implicit biases,” that we may not be aware of. These
hidden thoughts can impact what we see and hear, how
we remember what we see and hear, and how we make
important decisions. Because you are making very
important decisions in this case, I strongly encourage
you to evaluate the evidence carefully and to resist
jumping to conclusions based on personal likes or
dislikes, generalizations, gut feelings, prejudices,
sympathies, stereotypes, or biases. The law demands that you
Do not decide the case based on “implicit biases.”
return a just verdict, based solely on the evidence, your individual evaluation of
that evidence, your reason and common sense, and these instructions. Our
system of justice is counting on you to render a fair decision based on the
evidence, not on biases
February 18, 1957
“The arc of the moral universe is
long but it bends towards
justice”
Rev. Martin Luther King, Jr.
(Jan. 15, 1929 – April 4, 1968)