All content tagged with: Implicit Bias

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  • Barriers to the Ballot Box: Implicit Bias and Voting Rights in the 21st Century

    While much has been written regarding unconscious or “implicit bias” in other areas of law, there is a scarcity of scholarship examining how implicit bias impacts voting rights and how advocates can move courts to recognize evidence of implicit bias within the context of a voting rights claim. This Article aims to address that scarcity. After reviewing research on implicit bias, this Article examines how implicit bias might impact different stages of the electoral process. It then argues that “results test” claims under Section 2 of the Voting Rights Act (VRA) present an opportunity for plaintiffs to introduce evidence regarding implicit bias in the electoral process. In addition, this Article explores policy solutions to reduce the impact of implicit bias in elections.

  • Cross-Racial Identifications: Solutions to the “They All Look Alike” Effect

    On a late summer evening in August of 1997, Nathan Brown was in his apartment rocking his young daughter to sleep when the police knocked on his door. The police sought Brown, one of a few Black men in his apartment complex, after a young White woman said she had been assaulted by a shirtless Black man wearing black shorts with strong body odor walking through the complex’s courtyard. Minutes later the police took Brown outside and put him in the patrol car for a one-on-one “showup.” They brought him out by himself to see the victim wearing black shorts without a shirt, and she quickly identified him as her attacker, even though he lacked a strong body odor. The victim explained later that she believed he had showered right after the attack, meaning he was her attacker. The victim again identified Brown as her attacker at trial. Though Brown took the stand in his own defense and testified that he was home at the time of the attack caring for his “fussy infant daughter”—an alibi corroborated by four of his family members—he was convicted of attempted aggravated rape and sentenced to twenty-five years in prison on the basis of the victim’s identification alone. In June 2014, Brown was exonerated of the crime when DNA evidence revealed that he could not have been the attacker. The DNA evidence was an exact match to a seventeen-year-old Black male who had been living within blocks of the apartment complex where the victim had been attacked. Nevertheless, Brown spent nearly seventeen years in prison for a crime that he did not commit.

  • Poll Workers, Election Administration, and the Problem of Implicit Bias

    Racial bias in election administration-more specifically, in the interaction between poll workers and voters at a polling place on election day-may be implicit, or unconscious. Indeed, the operation of a polling place may present an "optimal" setting for unconscious racial bias. Poll workers sometimes have legal discretion to decide whether or not a prospective voter gets to cast a ballot, and they operate in an environment where they may have to make quick decisions, based on little information, with few concrete incentives for accuracy, and with little opportunity to learn from their errors. Even where the letter of the law does not explicitly allow for a poll worker to exercise discretion, there is a strong possibility that unconscious bias could play a role in poll worker decision-making. Whether a poll workers' discretion is de jure or de facto, the result may be race-based discrimination between prospective voters. This Article addresses how unconscious bias may play a role in the interaction between poll workers and prospective voters and discusses some ways in which the potential for unconscious bias to operate in America's polling places may be mitigated.

  • Discrimination in Sentencing on the Basis of Afrocentric Features

    This Article does not challenge the prior research on sentencing discrimination between racial categories that found no significant difference in sentences given to similarly-situated African Americans and Whites. In fact, in the jurisdiction investigated- Florida- no discrimination between African Americans and Whites was found in the sentences imposed on defendants, looking only at racial category differences. Rather, the research suggests that in focusing exclusively on discrimination between racial groups, the research has missed a type of discrimination related to race that is taking place within racial categories: namely, discrimination on the basis of a person's Afrocentric features. By Afrocentric features, this Article means those features that are perceived as typical of African Americans, e.g., darker skin, fuller lips, or a broader nose. The research found that when one examines sentencing from this perspective, those defendants who have more pronounced Afrocentric features tend to receive longer sentences than others within their racial category who have less pronounced Afrocentric features.

  • “The Implicit Association Test”: A Measure of Unconscious Racism in Legislative Decision-Making

    This Article argues that the Court will not fulfill the promise of the Equal Protection Clause unless the Court adapts its vision of antidiscrimination to account for the complex nature of discrimination. Imagine that we could measure unconscious discrimination. If so, then we could broaden the concept of purposeful discrimination to include the measurement of a legislator's reliance on unconscious racial stereotypes. Such a measuring device may already exist: The Implicit Association Test (IAT), a computer-based test developed by Yale and University of Washington psychologists. Researchers do not yet know how well the IAT can uncover racial stereotypes; however, if the IAT could discern the state of mind of decision-makers, it could enable all acts of race-dependent decision-making to be subject to pre-scrutiny analysis under the Equal Protection Clause. Currently, facially race-neutral statutes are practically impervious to constitutional challenges by aggrieved plaintiffs, because discriminatory intent often cannot be "located" by the Court. This barrier has continued to shield legislators from judicial scrutiny. The IAT could "smoke out" illegitimate purposes by demonstrating that the classification does not in fact serve its stated purpose.

  • Vigilante Racism: The De-Americanization of Immigrant America

    Sadly, the de-Americanization process is capable of reinventing itself generation after generation. We have seen this exclusionary process aimed at those of Jewish, Asian, Mexican, Haitian, and other descent throughout the nation's history. De-Americanization is not simply xenophobia, because more than fear of foreigners is at work. This is a brand of nativism cloaked in a Euro-centric sense of America that combines hate and racial profiling. Whenever we go through a period of de-Americanization like what is currently happening to South Asians, Arabs, Muslim Americans, and people like Wen Ho Lee-a whole new generation of Americans sees that exclusion and hate is acceptable; that the definition of who is an American can be narrow; that they too have license to profile. Their license is issued when others around them engage in hate and the government chimes in with its own profiling. This is part of the sad process of unconscious and institutionalized racism that haunts our country.

  • Policing Hatred: Police Bias Units and the Construction of Hate Crime

    Much of the scholarly debate about hate crime laws focuses on a discussion of their constitutionality under the First Amendment. Part of a larger empirical study of police methods of investigating hate crimes, this Note attempts to shift thinking in this area beyond the existing debate over the constitutionality of hate crime legislation to a discussion of how low-level criminal justice personnel, such as the police, enforce hate crime laws. This Note argues that, since hate crimes are an area in which police have great discretion in enforcing the law, their understanding of the First Amendment and how it relates to their job is important to the impact that hate crime legislation has in the community. Additionally, research on the enforcement of hate crime laws may inspire further investigation of the broad discretion police officers currently possess in all areas of law.