Legal discourse on implicit bias has changed the way scholars and citizens think about race in the justice system. Ever-growing scholarship, much of it empirical, has identified, confronted, and sought to address how implicit bias operates in nearly every criminal justice context— especially in policing,1 prosecuting,2 judging,3 and juror decision-making.4 This focus on racially fraught legal processes, and the subsequent search to mitigate or eliminate the operations of implicit bias within each of them, has been an illuminating force not only for those who seek to expose the reality of a biased system, but also for those who recognize that the fairness-driven ideals of the American legal system are not being realized. Thus, it is not surprising that efforts designed to “deal with” implicit bias in the criminal justice system—whether through judicial trainings, jury instructions, or structural safeguards—have become increasingly popular.5

Our aim here is to strengthen the existing model of implicit bias by proposing the addition of a new theoretical layer. It is not only processes and people that allow implicit bias to seep into the criminal justice system. We argue that a comprehensive understanding of implicit bias in the criminal justice system requires acknowledging that the theoretical underpinnings of the entire system may now be culturally and cognitively inseparable from implicit bias.

At the heart of this Essay are two of our recent empirical studies. One found that people automatically devalue the lives of Black Americans compared to White Americans.6 The other found that core punishment theories have become deeply ingrained with implicit racial bias.7 Driven by these studies’ empirical results, and embracing our recommended “zooming out” of implicit bias discourse, we argue for new race-relevant approaches to Eighth Amendment excessiveness jurisprudence, as well as for the development of a more accurate understanding of how policy decisions are made. More specifically, we claim that controversial criminal justice practices, such as capital punishment and juvenile life without parole, may now be resting on shaky legal ground. Our research demonstrates that the inquiry into categorical excessiveness—a jurisprudence that largely ignores race in its current manifestation—must grapple with systemic implicit bias.

Bringing an understanding of systemic implicit bias into the constitutional analysis could lead to the conclusion that some legal practices that make America so punitive and unjust can no longer be constitutionally supported. Furthermore, our research results open new pathways for scholars and reformers considering how to move forward in addressing the most pressing racial issues in criminal justice today: race in policy-making, in policing, in prosecutorial discretion, and in punishment.

In the remainder of this Essay, we first introduce systemic implicit bias. Next, we examine what systemic implicit bias could mean for Eighth Amendment analysis of the death penalty and juvenile life without parole. Finally, we explore how systemic implicit bias could infect a range of policy decisions at the local, state, and national levels.

i. introducing systemic implicit bias

Systemic implicit bias, as we define it, refers to the way automatic racial bias may have become unwittingly infused with, and even cognitively inseparable from, supposedly race-neutral legal theories (such as retribution or rehabilitation) and jurisprudential approaches to well-considered constitutional doctrines (such as Eighth Amendment excessiveness analysis). To explain the empirical origins of this concept, we summarize two of our most recent studies about implicit bias in the criminal justice system. These studies were both aimed not just at a specific legal process or principle—though we admit to framing them in this limited way8—but more broadly at the question of how implicit bias might infect the core principles embedded in our legal system.

Our first such study sought to examine whether Americans implicitly devalue Black lives relative to White lives. The study involved a diverse pool of 445 citizens in six states.9 We tested participants’ implicit racial biases, not only on traditional racial stereotypes (such as stereotypes of Black Americans as hostile), but also on a new implicit bias measure.10 The Implicit Association Test (IAT)11 that we created tested people’s automatic (non-controlled) associations between race and value of life by requiring participants to group together photographs of White and Black faces with word stimuli representing the concepts of valuable or valueless.12 For example, participants had to respond rapidly to categorize the photos of Black and White faces along with the words “merit,” “worthy,” and “valuable,” as compared to the words “drain,” “expendable,” and “waste.”13 The results of the study indeed confirmed that our sample held significant automatic associations between White Americans and valuable and between Black Americans and worthless.14

Our second study sought to measure whether Americans’ automatic conceptions of punishment have become cognitively inseparable from race.15 In that study, a diverse sample of 522 American adults completed an IAT that asked them to categorize White and Black faces with the concepts of retribution and mercy.16 Thus, we created a measure that could test whether people implicitly associate retributive concepts with Blacks and leniency with Whites. The study found that, indeed, participants automatically associated Black faces with the words “revenge,” “payback,” and “punish,” and associated White faces with the words “forgive,” “redemption,” and “compassion.”17 Furthermore, we found that citizens’ implicit racial biases predicted their overall retributiveness: the greater the implicit racial bias they held, the more they supported retribution as an ideal punishment theory.18

Taken together, our studies illustrate how deeply ingrained cultural forces tend to promote both the undervaluing and over-punishment of Black lives across the justice system. To connect these studies to legal doctrine at a systemic level, we next focus on two ways in which these forces shape criminal law. First, at the level of constitutional law, we explore the implications of systemic racial bias on Eighth Amendment excessive punishment jurisprudence. Second, taking a step back, we wrestle with how systemic implicit bias infects the way people frame issues throughout the criminal justice system—distorting policy questions and altering the decisional calculus of the actors in the justice system who wield the most discretionary power.

ii.systemic implicit bias and eighth amendment jurisprudence

The results of our studies have meaningful implications for Eighth Amendment jurisprudence on cruel and unusual punishments, specifically relating to the supposedly race-irrelevant doctrine of excessiveness. When the U.S. Supreme Court questions whether a punishment is categorically excessive, the Court asks, in part, whether in its own judgment the punishment practice is excessive in relation to the severity of the crime or the class of people subjected to the punishment.19 For instance, the Court has held that the death penalty is an excessive punishment for non-homicide offenses.20 It has also held that the death penalty cannot be imposed upon juveniles or the intellectually disabled, no matter the severity of the offense,21 and that life without parole cannot be imposed upon juveniles who commit non-homicide offenses.22 Traditionally, the racial disparities that remain at the heart of our harshest punishments23—for example, the death penalty and juvenile life without parole—have not been viewed as part of excessiveness analysis. Instead, racial disparities are treated as relevant to questions about the inconsistency and irrationality of treating two deserving defendants differently.24 Since 2002, the Court has found a punishment practice unconstitutional six times under the excessiveness framework; none of those cases focused significantly on race.25 Yet, our studies—which found that Americans devalue Black lives relative to White lives and associate retribution with Black more than White—illustrate that racial bias has implications for how courts should understand the excessiveness of a punishment.

First, if people on an automatic and unconscious level value White lives more than Black lives, then the enormity of the harm that the crime inflicts upon society inaccurately appears greater when a White life is lost. Thus, a person is erroneously seen as more deserving of harsher punishment for killing a White person because that White life is automatically perceived to have greater value.26 This disproportionate valuing of White crime victims does not alone tell us whether the death penalty is too much punishment—or, instead, whether the absence of the death penalty for killers of Black victims is too little punishment. Rather, it suggests that the unintentional devaluing of Black lives leads to a racialized calculation of the harm caused and of the necessary government response to address that harm. Thus, when study after study shows a race-of-the-victim effect in death penalty cases,27 it is no longer justifiable to treat those findings as relevant only to anti-arbitrariness goals; instead, one must reckon with questions about the constitutional excessiveness of capital punishment.

Second, if people automatically and disproportionately favor harsh payback over rehabilitation when the defendant is Black,28 the relevance of systemic implicit bias to questions of constitutionally disproportionate punishment—this time in the context of a defendant’s personal culpability—is clear. In the context of juvenile life without parole (JLWOP), for example, the U.S. Supreme Court has held that because children possess less developed cognitive and emotional faculties than adults,29 juveniles must be treated as less deserving of the harshest punishments than adults who commit the same offenses.30 This reasoning led the Court to hold that the Eighth Amendment prohibits JLWOP sentences for non-homicide crimes.31 The same reasoning led the Court to hold that JLWOP is only appropriate in the rarest of homicides where the juvenile is irreparably corrupted.32

The implicit retribution bias that we found helps to explain why Black teenagers continue to disproportionately receive life without parole sentences.33 Specifically, before a decision-maker even begins to wrestle with the difficult question of whether an adolescent is permanently incorrigible—meaning he will never become a different and less dangerous person as he ages and his brain develops—the child’s group membership puts a thumb on the scale for increased punishment over the promise of rehabilitation.34 As with the death penalty, then, racial disparities in JLWOP are questions about excessiveness and not simply about rationality and consistency.

iii. systemic implicit bias infects policy decisions

A robust literature describes how implicit bias seeps into points of discretion such as jury decision-making and the sentencing of defendants.35 There is also a sizable literature on whether core processes thought to promote fairness—including jury selection,36 death-qualification of jurors in capital cases,37 and the presumption of innocence38—are themselves susceptible to implicit bias. Yet, the results of our two studies illuminate how implicit bias taints the framing of legal policy questions earlier in the process than the existing literature would suggest.39 We posit that systemic implicit bias pervades the criminal justice system even at the point when policymakers and citizens consider how to respond to perceived social problems. Most of the discussion about implicit bias is about what happens at trial or during the investigative stop—what happens to a policy in the real world. Yet, before a decision-maker thinks about the specifics of a policy—and long before that policy is put into practice—implicit bias shapes how people intuitively understand what makes a good punishment, how much of that punishment is necessary, and whether human beings deserve that punishment or not. Thus, implicit bias affects people’s implicit theories of human nature as they begin to apply those theories to real policy decisions.

Systemic implicit bias can influence how policymakers choose between punitive and preventative frameworks for addressing social problems. For example, should gun violence be addressed through harsher mandatory minimum jail sentences for illegal gun possession? Or is the money that would be spent on increased prison costs better spent on job training, addiction treatment, or mental health care for people identified as being of high risk for either being a perpetrator or a victim of gun violence? If gun violence is envisioned (even without awareness) as a problem that mostly impacts Black citizens, both in terms of its victims and its perpetrators, then systemic implicit bias will likely impact which approach to the problem policymakers adopt. The relative devaluing of Black lives and the disproportionate desire to punish Black people will sway decision-makers toward supporting mandatory minimum jail time instead of programs aimed at treatment and prevention. A vast spectrum of policy decisions can be viewed through this racialized lens. In other words, just as a particular association between Black and weapons or Black and drug crime can lead to policy-specific bias, systemic implicit biases could affect many policy choices.

Importantly, systemic implicit bias is not limited to policy-making in Congress, the state legislature, the county commission, or the city council. Consider an elected prosecutor who must decide, as an office-wide policy matter, whether to permit the prosecutors in her office to recommend diversionary programs instead of incarceration for non-violent felony drug offenders. Existing research addresses how bias might enter into the process of sentencing in individual cases once the office-wide policy decision has been made. But long before a line prosecutor decides whether a particular defendant is better suited for a diversionary program or incarceration, the elected prosecutor may determine policy in a biased way. If the prosecutor—like Americans generally—devalues the humanity of Black Americans and leans towards punishing the transgressions of Black Americans more harshly, then her implicit biases could influence the policy decisions that bind line prosecutors across all of their cases—again, for example, the ability to seek diversionary programs over incarceration.40 This same calculus applies to many actors within the justice system—including police chiefs and sheriffs, county commissioners, city council members, and state legislators—who make the policy decisions that precede the enormous discretionary power that line actors—such as police officers or prosecutors—possess in investigating, interrogating, and prosecuting individual cases.41

Conclusion

Taken broadly, systemic implicit bias illustrates that bias enters into the criminal justice system before a police officer decides to stop and frisk a person, and long before procedural processes like the death qualification of capital juries permit bias to sweep into the trial process. Because, as our empirical studies show, people both possess automatic associations that devalue Black lives relative to White lives and associate Black Americans with a need for punishment, bias enters into the system at the earliest stages—at the time when policy-makers are considering questions of where to police and how aggressively, and why to punish and by how much. For these reasons, systemic implicit bias can influence the policy choices that elected prosecutors, law enforcement chiefs, and legislators make. Moreover, systemic implicit bias illustrates why Eighth Amendment jurisprudence analyzing penal excess must grapple with racial unevenness— specifically, because the disproportionate tendency to punish Black Americans risks that people who otherwise do not deserve a punishment will nonetheless receive it, in some significant part because of racial bias.

Our suggested analysis of race in Eighth Amendment excessiveness jurisprudence will likely lead to the conclusion that certain punishment practices, such as the death penalty and JLWOP, are indeed unconstitutional. Dealing with systemic bias in the policy-making arena requires a somewhat more nuanced response. Due to the danger of systemic implicit bias in policy formulation, we recommend the implementation of a presumption against certain criminal justice policies, including sentencing enhancements, that come on the heels of a racialized history or a recent racialized moral panic. For existing criminal justice policies, when racially disparate application has become apparent, and especially where there is a history of racially divisive rhetoric surrounding the adoption of the policy, public officials should take affirmative steps to root out any disproportionality.42

Justin D. Levinson is a Professor of Law and Director of the Culture and Jury Project at the University of Hawai’i at Mānoa, William S. Richardson School of Law. Robert J. Smith is the director of the Fair Punishment Project at Harvard Law School. Previously, he was an assistant professor of law at the University of North Carolina at Chapel Hill.

Preferred Citation: Justin D. Levinson & Robert J. Smith, Systemic Implicit Bias, 126 Yale L.J. F. 406 (2017), http://www.yalelawjournal.org/forum/systemic-implicit-bias.