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Law Reviews on Racia...

Home > Law Reviews on Racial and Other Social Bias
Law Reviews on Racial and Other Social Bias

*Please note: This page is still in progress. More links will be posted soon.*

This page also includes law articles and legal reports from taskforces, law bulletins, and bar publications.

(In alphabetical order)

 

Law Reviews

This article discusses the 2017 case, Pena-Rodriguez v. Colorado, the United States Supreme Court addressed the problem of racial bias in our justice system.  This Article will demonstrate that the safeguards identified by the Court must be improved if they are to assist trial courts in ferreting out juror bias. Social science research has made clear that a majority of Americans carry some level of subconscious or implicit bias against racial minorities and that this bias manifests itself in the application of racial stereotypes. These stereotypes can influence many aspects of the jury’s functions.

This paper begins with an overview of the racial disparity, provides a brief introduction to the science of implicit racial bias, analyzes the discretion-maximizing and accountability-minimizing decisions Supreme Court decisions that have allowed implicit bias to run amok in the justice system, and explores the New York City stop-and-frisk litigation as an example of the cumulative effects of those decisions. It concludes with a proposal to modify constitutional jurisprudence to increase law enforcement accountability and mitigate the effects of implicit racial bias.

In this Article, the authors argue and attempt to demonstrate that neither the formalists nor the realists accurately describe the way judges make decisions, but that key insights from each form the core of a more accurate model The authors propose a blend of the two that we call the “intuitive-override” model of judging. Supported by contemporary psychological research on the human mind and by our own empirical evidence, this model posits that judges generally make intuitive decisions but sometimes override their intuition with deliberation.

This article adds to the three racialized stereotypes perpetuated about African American women (Mammy, Sapphire and Jezebel) an additional stereotype assigned to women generally, to members of minority groups usually, and to African American women in particular–that of Cassandra from Greek mythology. This article also seeks to examine and illuminate the special problems that make African American women more likely to suffer from the Cassandra curse, given the widespread stereotyping extant in our society
and the judicial system.

This article identifies a dynamic by which courts regularly admit character evidence through an expanding set of legislative and judicial exceptions that have all but swallowed the rule. Recognizing that under this usual narrative, character evidence is problematic because jurors place excessive weight on it or punish the defendant for past behavior and that lawmakers rely on this narrative when they create exceptions. This author argues that this account arguably misses a highly troublesome feature of character evidence and far understates its pernicious effects. In this article, the author develops a new model of character evidence that refocuses the debate on the distortions associated with the prior beliefs and prejudices inherent in a juror’s perception of character evidence.

This review explores the question of whether implicit biases shown by social researchers to be held by others are similarly held by trial judges; 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.   The authors explored these two research questions in a multi-part study involving a large sample of trial judges drawn from around the country. Their results found 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.

This Article identifies evidence law’s blind spots as biased gap-filling and systemic injustice; demonstrates them empirically; and discusses two normative implications that flow from these findings. 

This Article calls much needed attention to this other evidence and demonstrates that such unregulated evidence matters. Jurors use this other evidence to decide whether to find for a plaintiff or defendant, whether a defendant should go free or be deprived of liberty, even whether a defendant is deserving of life or death. More broadly, the role of other evidence belies what we tell ourselves about the way justice works, that it is based on the “rule of law.” The truth is less comforting. The determination of outcomes, notwithstanding the Rules of Evidence, is often ruleless. To address this state of affairs, this Article first offers a modest proposal—a simple jury instruction and directive. It then offers a solution that is anything but modest—a radical rethinking of the Rules of Evidence.

As stated by the authors in their introduction, this paper turns attention away from discussions of the race and economic poverty of the families most affected by the legal system seeking to separate them and instead looks at the impact of the race and privilege of volunteer child advocates on decision-making in family regulation cases.

In this article the authors employ a historic lens to examine psychiatry’s early role in the creation of scientific racism and the ways in which societal context informs diagnostic and assessment frameworks. Finally, the authors explore examples of persistent parallels in racial disparities within modern forensic psychiatry. In this process, the authors move beyond myopic paradigms of interpersonal and explicit racism to exemplify how racism has become embedded in habits, policies, and practices in forensic psychiatry. In turn, the authors suggest that individual attempts by evaluators to understand and mitigate their own biases and racialized tendencies will be to little avail unless contextualized within a broader historical framework. This approach, the authors argue, is in alignment with the promotion of structural competency within our field.

This article examines the impact of implicit bias and the scores on implicit association tests on behaviors guided by employment law and policy.  The authors posit that if people are treated differently, and worse, because of their race or another protected trait, then the principle of antidiscrimination has been violated, even if the source of the differential treatment is implicit rather than conscious bias. They further posit that should not be controversial to suggest that in formulating and interpreting legal rules, legislatures and courts should pay close attention to the best available evidence about people’s actual behavior-an approach this Symposium terms “behavioral realism.”‘ And finally, the authors discuss the influence of economic analysis of law and the need to attend to good evidence, applied to the domain of civil rights.

The authors discuss social selection, stigmatization, and socialization/strain theoretical explanations for the intergenerational influences of parental incarceration on their children. Results with national survey data reveal that net of selection factors, paternal imprisonment decreases the educational attainment of children in emerging adulthood. While this pattern is found across race/ethnicity, the results in combination with disproportionate minority confinement suggest that parental incarceration is a mechanism of social exclusion of these groups.

This article explores the problem of the “credibility discount” in New York’s Domestic Violence Survivors Justice Act (DVSJA). Passed in 2019, the DVSJA allows for reduced sentences for criminalized survivors of domestic violence whose abuse was a significant contributing factor to their offense. This groundbreaking law serves as a blueprint for reformers nationwide. But it also contains a pleading requirement that sanctions a presumption of incredibility: incarcerated survivors must corroborate their claims of abuse with documentary evidence from a purportedly more reliable source, such as the police, a doctor, or a third-party witness. Applicants facing this hurdle stand at the convergence of the three “liars”: they are disproportionately Black and brown women serving long prison sentences. Many of them never reported their abuse, and no one saw it happen. By refusing to credit a survivor’s narrative standing alone, this trailblazing statute inadvertently reinforces a system of disbelief based on bias. It gives rise to epistemic injustice that disproportionately affects marginalized communities and undermines the law’s vital mission of freeing criminalized survivors. The author submits that to effectively disrupt the abuse-to-prison pipeline, New York and other states must embrace a paradigm shift away from credibility discounting and towards belief through legislative amendment, judicial leniency, and trauma-informed advocacy. 

This essay presents the legal argument for defining “race” as a vast group of people loosely bound together by historically contingent, socially significant elements of their morphology and/or ancestry. The author argues that race must be understood as a sui generis social phenomenon, in which contested systems of meaning serve as the connections between physical features, faces, and personal characteristics. In other words, social meanings connect our faces to our souls. Race is neither an essence nor an illusion, but rather an ongoing, contradictory, self-reinforcing, plastic process subject to the macro forces of social and political struggle and the micro effects of daily decisions. As used here, the referents of terms like Black and White are social groups, not genetically distinct branches of humankind. 

 

Other Reports

This is a report of the Research Working Group of the Task Force on Race and the Criminal Justice System. The Research Working Group’s mandate was to investigate disproportionalities in the criminal justice system and, where disproportionalities existed, to investigate possible causes. This fact-based inquiry was designed to serve as a basis for making recommendations for changes to promote fairness, reduce disparity, ensure legitimate public safety objectives, and instill public confidence in our criminal justice system.

This report is an update on the 2011 Preliminary Report on Race and Washington’s Criminal Justice System. This update does not include as context the history of race discrimination in Washington, and readers are encouraged to view the 2011 report for its brief historical overview. The 2011 report began with that historical overview because the criminal justice system does not exist in a vacuum. Instead, it exists as part of a legal system that for decades actively managed and controlled where people could live, work, recreate, and even be buried.