My UNC colleague Rob Smith, my former UH colleague Justin Levinson and Zoe Robinson of DePaul have a new paper up on ssrn, "Bias in the Shadows of Criminal Law: The Problem of Implicit White Favoritism." Cribbing now from their abstract:
Commentators idealize a racially fair criminal justice system as one without racial animus. But unjustified racial disparities would persist even if racial animus disappeared overnight. In this Article, we introduce the concept of implicit white favoritism into criminal law and procedure scholarship, and explain why preferential treatment of white Americans helps drive the stark disparities that define America’s criminal justice system. Scholarly efforts thus far have shone considerable light on how unconscious negative stereotyping of black Americans as hostile, violent, and prone to criminality occurs at critical points in the criminal justice process. We rotate the flashlight to reveal implicit favoritism, a rich and diverse set of automatic associations of positive stereotypes and attitudes with white Americans. White favoritism can operate in a range of powerful ways that can be distinguished from traditional race-focused examples: in the way, for example, white drivers are pulled over less often than unseen drivers or crimes against white victims are seen as more aggravating than those against non-white victims. Our account of implicit white favoritism both enriches existing accounts of how implicit racial bias corrupts the criminal justice system and provides explanations for disparities that implicit negative stereotyping explanations miss altogether.
I suspect this will generate some controversy. One other thought: so far the implicit bias literature has focused a lot of attention on criminal law. I wonder if some of what Smith et al. identify here applies in similar ways to other areas of the law (I'm thinking tort is the most likely area).
The implicit bias literature is heavily reliant on the implicit bias test, which is enormously controversial and of dubious validity. I wonder whether the authors mention this fact.
Posted by: yep | January 26, 2014 at 11:59 AM
I will be very interested to read this. There is a lot to be done on teasing this stuff out in many areas-- doctors who don't prescribe the latest medication and treatment plans to black patients or who give lower doses of pain medication to black people-- lots of things.
Posted by: AGR | January 27, 2014 at 10:23 AM