Does Unconscious Racial Bias Affect Trial Judges

TLDR: The authors found that black defendants fare worse than similarly situated white defendants in the criminal justice system than do their white counterparts, and that implicit bias is one of the most common implicit associations among judges.

Abstract: Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility. Researchers, using a well-known measure called the Implicit Association Test, have found that most white Americans harbor implicit bias toward black Americans. Do judges, who are professionally committed to egalitarian norms, hold these same implicit biases? And if so, do these biases account for racially disparate outcomes in the criminal justice system? We explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Our results--which are both discouraging and encouraging--raise profound issues for courts and society. We find that judges harbor the same kinds of implicit biases as others; that these biases can influence their judgment; but that given sufficient motivation, judges can compensate for the influence of these biases. INTRODUCTION Justice is not blind. Researchers have found that black defendants fare worse in court than do their white counterparts. In a study of bail-setting in Connecticut, for example, Ian Ayres and Joel Waldfogel found that judges set bail at amounts that were twenty-five percent higher for black defendants than for similarly situated white defendants. (1) In an analysis of judicial decisionmaking under the Sentencing Reform Act of 1984, David Mustard found that federal judges imposed sentences on black Americans that were twelve percent longer than those imposed on comparable white defendants. (2) Finally, research on capital punishment shows that "killers of White victims are more likely to be sentenced to death than are killers of Black victims" and that "Black defendants are more likely than White defendants" to receive the death penalty. (3) Understanding why racial disparities like these and others persist in the criminal justice system is vital. Only if we understand why black defendants fare less well than similarly situated white defendants can we determine how to address this deeply troubling problem. Two potential sources of disparate treatment in court are explicit bias and implicit bias. (4) By explicit bias, we mean the kinds of bias that people knowingly--sometimes openly--embrace. Explicit bias exists and undoubtedly accounts for many of the racial disparities in the criminal justice system, but it is unlikely to be the sole culprit. Researchers have found a marked decline in explicit bias over time, even as disparities in outcomes persist. (5) Implicit bias--by which we mean stereotypical associations so subtle that people who hold them might not even be aware of them--also appears to be an important source of racial disparities in the criminal justice system. (6) Researchers have found that most people, even those who embrace nondiscrimination norms, hold implicit biases that might lead them to treat black Americans in discriminatory ways. (7) If implicit bias is as common among judges as it is among the rest of the population, it might even account for more of the racially disparate outcomes in the criminal justice system than explicit bias. In this Article, we report the results of the first study of implicit racial bias among judges. We set out to explore whether judges hold implicit biases to the same extent the general population and to determine whether those biases correlate with their decisionmaking in court. Our results are both alarming and heartening: (1) Judges hold implicit racial biases. (2) These biases can influence their judgment. (3) Judges can, at least in some instances, compensate for their implicit biases. Our Article proceeds as follows. We begin, in Part I, by introducing the research on implicit bias and its impact on behavior. In Part II, we briefly describe the methods of our study. We provide a much more detailed account in the Appendix. …