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Evidence of Implicit Bias in the Criminal Justice System

Because most evidence of this issue concerns African Americans, most of our discussion here will concern African Americans. That said, growing evidence indicates that Latinos and Native Americans also experience worse outcomes in the criminal justice system because of implicit bias against them.

Our summary of the evidence that generally exists for these three groups will focus on decision making during major stages of criminal justice: law enforcement, prosecution, and conviction and sentencing.

Law Enforcement

When Americans think about racial issues in criminal justice, the behavior of police probably comes most readily to mind. Are the police more likely to stop, frisk, and/or arrest African Americans and other people of color, whether they are walking, driving, or just standing around? Are the police more likely to use excessive force (police brutality) against these individuals? What does the evidence say?

As just noted, the evidence is complex, and not every study finds discrimination by police in all these dimensions of their behavior as they encounter the public. Overall, though, the picture that emerges from this evidence is disturbing, as it strongly suggests that African Americans are more likely, even if they have done nothing wrong, to be stopped for questioning if they are walking, driving, or just standing around, and more likely than whites to be arrested for suspicious behavior (Walker et al., 2018).

As also just noted, we do not have space to discuss all the evidence, but it is revealing to examine the results of a few specific studies. Let’s begin with racial profiling of drivers and walkers. Anecdotally, African Americans often say that the police stopped them for no good reason while they were driving or walking, leading observers to sarcastically call these persons’ alleged criminal behavior DWB (driving while black) or WWB (walking while black), respectively. Social science evidence backs up these drivers’ and walkers’ claims (Baker,

2010; Lundman and Kowalski, 2009; Rojek et al., 2012). For example, a Maryland study found that African Americans comprised more than three-fourths of all drivers stopped by state troopers on a particular highway, even though they comprised only 17% of the drivers on the highway. In locations such as New Jersey and St. Louis, studies have found state troopers or local police (depending on the study) much more likely to stop African American and Latino drivers than white drivers and also much more likely to search the cars of the drivers of color. In New York City, which for several years had an intensive “stop and frisk” policy of young males who were walking or standing around, studies have found that police were much more likely (i.e. out of proportion to their representation in the general population) to stop African American and Latino males and to frisk them after stopping them (Baker, 2010).

The evidence for racial bias in arrest is probably less clear than that for stopping, questioning, and frisking. Methodological problems make it difficult to study such bias, because social scientists would need to know, for example, how many black and white offenders are breaking the law, and what percentage of these offenders are arrested. But because much crime goes unreported, it is difficult to know how many offenders by race are breaking the law. To counter this problem, some social scientists have accompanied the police during their patrolling and recorded the race of possible suspects and whether the police arrest these suspects. Some of these observational studies find no racial bias in arrest, but other such studies do find racial bias (Walker et al., 2018). The best conclusion from these studies is probably that racial bias in arrest sometimes occurs, but that it is not nearly as extensive as a half-century ago.

In this regard, a more subtle form of police bias in arrest is possible. What if police tend to arrest white suspects only if the evidence against them is fairly strong, while arresting African American suspects even if the evidence against them is fairly weak? Some older evidence finds this is indeed the case (Hagan and Zatz, 1985; Petersilia, 1983), but newer evidence is needed to determine the extent to which this more subtle form of bias still exists.

Clear evidence exists of racial bias in arrests for one kind of criminal behavior, drug offenses. Although African Americans are not more likely than whites to use illegal drugs, they are arrested for illegal drug possession far beyond their proportion in the U.S. population (Mitchell and Caudy, 2015). To be more precise, African Americans comprise about 13% of the population, but accounted for 27% of all drug arrests in 2015 (Federal Bureau of Investigation, 2016), twice their “fair share” of arrests. The disparity for Latinos is smaller: Although Latinos comprise about 15% of the population, they accounted for 20% of drug arrests in 2015.

These disparities have existed ever since the nation began its legal war on drugs in the 1980s and have contributed to the overrepresentation of people of color in prisons and jails (Alexander, 2012). A former president of the American Society of Criminology warned of this situation in 1993, “What is particularly troublesome,” he said, “is the degree to which the impact [of the drug war] has been so disproportionately imposed on nonwhites” (Blumstein, 1993:4-5). He added, “One can be reasonably confident that if a similar assault was affecting the white community, there would be a strong and effective effort to change either the laws or the enforcement priority.”

Prosecution Researchers are becoming increasingly interested in the behavior of prosecutors, who must decide, among other things, whether to drop charges against arrested suspects or to continue to prosecute the case, whether to bring more serious or less serious charges against defendants, and whether to insist on incarceration as part of the plea-bargaining process (Pfaff, 2017). Despite this growing interest, research on race/ ethnicity and prosecutorial decisions is still fairly scant, making it difficult to draw firm conclusions. Of the research that does exist, some studies do find racial bias in prosecutorial decision making, but other studies do not (Kutateladze et al., 2016). For example, New York prosecutors in marijuana cases are more likely during plea-bargaining discussions to demand incarceration of African American defendants than of white defendants; this difference manifested even after researchers took into account the strength of the evidence and other legal factors (Kutateladze et al., 2016).

Evidence of prosecutorial racial bias is clearer in homicide and rape cases (Myers, 2000). Some studies find that prosecutors in these cases bring more serious charges when the defendant is African American than when the defendant is white. The evidence for racial bias in these cases is even stronger when the race of the victim is considered, with prosecutors bringing more serious charges when the victim is white than when the victim is black. According to one criminologist, this latter evidence raises “the disturbing possibility that some prosecutors define the victimization of whites, especially when African Americans are perpetrators, as more serious criminal events than the comparable victimization of African Americans” (Myers, 2000:451).

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