{"id":85831,"date":"2018-12-02T14:29:28","date_gmt":"2018-12-02T19:29:28","guid":{"rendered":"https:\/\/sentencing.net\/?p=85831"},"modified":"2019-11-05T16:20:26","modified_gmt":"2019-11-05T21:20:26","slug":"sentencing-discrimination-racial-bias","status":"publish","type":"post","link":"https:\/\/sentencing.net\/sentencing\/sentencing-discrimination-racial-bias","title":{"rendered":"Sentencing Discrimination: The Hidden Role of Implicit Racial Bias"},"content":{"rendered":"\n\t

Judges who hand down criminal sentences every day in our federal and state courts engage in sentencing discrimination without even really understanding or being aware of it. How do we know that is true, and what can we do about it?<\/p>\n

Strangely enough, part of the answer can begin on Broadway. \u201cWhat do Broadway musicals have to do with sentencing discrimination?\u201d you may ask. Well, stay with me, and you\u2019ll see.<\/p>\n

\u201cEveryone\u2019s A Little Bit Racist\u201d \u2013 Avenue Q<\/em><\/h2>\n

The Tony Award winner for Best Musical in 2004 was a little musical called Avenue Q<\/em>, a kind of Sesame Street for adults. The hilarious musical comedy incorporated a lot of fun, if somewhat bawdy, puppets along with a human cast of multi-racial characters.<\/p>\n

\"Sentencing

Sentencing Discrimination<\/p><\/div>\n

What made the show a Tony winner was its marvelous knack for playfully coming close to the edge on some serious subjects, but doing it in a way that never offended. One song in the show that did just that was the song titled, \u201cEveryone\u2019s A Little Bit Racist.\u201d Pointing out, with tons of humor and some subtlety, that everyone is prone to making small judgments based on race even if they don\u2019t mean to.<\/p>\n

The lighthearted delivery of the message allows audiences of all stripes to reflect on how we, as humans, tend to make snap judgments of other ethnic and racial groups that may not be fair or three-dimensional. Further, it brings forward the reality that people of all races<\/em> have feelings about others based on stereotypes, media coverage, family upbringing, and personal experiences. This as you might imagine has a real impact on sentencing discrimination.<\/p>\n

In sum, the song lets us laugh a little at the human condition that often falls into \u201cus vs. them\u201d dichotomies drawn along racial or ethnic lines, while acknowledging that we are all guilty of it. Simply put, acknowledging there is a problem is a good first step.<\/p>\n

Are Judges \u201cA Little Bit Racist\u201d Too?<\/h2>\n

It is no surprise that implicit racial bias<\/a> affects sentencing decisions, too.\u00a0 Commentators \u201cuniversally agree\u201d that racial disparities are pervasive in the U.S. criminal justice system. So, judges are no exception when it comes to implicit racial biases and resulting sentencing discrimination.<\/p>\n

Indeed, the notion of implicit bias among judges who sentence criminals has been the subject of some legal scholarly work. From one study in particular, three main conclusions come to the fore:<\/p>\n

    \n
  1. Implicit racial bias exists even in egalitarian individuals. Further, those individuals are less likely to be aware of those biases because they lack explicit biases.<\/li>\n
  2. The effects of implicit biases in the courtroom are invisible to the naked eye.<\/li>\n
  3. Overworked, extremely busy courts with too few resources are rich environments for systemic implicit racial biases to thrive.<\/li>\n<\/ol>\n

    Judges, like all of us, have blind spots when it comes to bias. Also like all of us, judges can see bias in others, but not in themselves. For example, in one study 97% of state court administrative law judges rated themselves in the top half of their colleagues in their ability to \u201cavoid racial prejudice in decision making.\u201d In another study, 92% of senior federal district judges ranked themselves in the top 25%, compared to their colleagues, in their ability to make decisions free from racial bias.<\/p>\n

    Both numbers, of course, are mathematically impossible, and simply point to the fact that judges have difficulty seeing bias in themselves, which can result in sentencing discrimination.<\/p>\n

    The Black\/White Implicit Association Test (IAT) and Its Implication for Sentencing Discrimination<\/h2>\n

    Another study, which involved the Black\/White Implicit Association Test (a test which determines a person\u2019s positive or negative associations with certain physical attributes), came to some interesting conclusions with regard to state and federal judges:<\/p>\n