A democracy cannot thrive where power remains unchecked and justice is reserved for a select few. Ignoring these cries and failing to respond to this movement is simply not an option—for peace cannot exist where justice is not served.—John Lewis on the George Floyd Justice in Policing Act
In the past decade, technology and social media have allowed the world to see the victimization of unarmed Black men and women by law enforcement. High-profile cases such as those of Eric Garner, Michael Brown, Tamir Rice, John Crawford, Walter Scott, Alton Sterling, Philando Castile, Freddie Gray, Sandra Bland, Breonna Taylor, and George Floyd have sparked social movements, protests, demonstrations, and public discourse as it relates to race and the fight against social injustice. Those movements have forced many people to address, or at the very least acknowledge, that there is a race problem in America and that it impacts our entire society, especially the criminal justice system.
What Is Implicit Bias?
Implicit bias is a term that has become increasingly popular to describe the prejudices that people may have against another person. According to the Kirwan Institute, “implicit bias refers to the attitudes or stereotypes that affect one’s understanding, actions, and decisions in an unconscious manner.” In other words, the Kirwan Institute explains that people form both favorable and unfavorable assessments about others based on characteristics such as race, ethnicity, age, and appearance without consciously deciding to do so. Through exposure to direct and indirect messages, including media and news programming, people’s biases begin to develop at an early age.
Researchers of implicit bias have determined that, to some degree, everyone possesses biases that affect how we view our world. Once the bias is formed, people subconsciously look for information that affirms their existing beliefs. Implicit racial bias can influence behaviors and decision-making, which may contribute to discriminatory practices, social disparities, and other harmful consequences for people of African descent.
What Is Systemic Racism?
In addition to this type of interpersonal bias, racism is intertwined in each major part of American society—our institutions, laws, politics, economy, family, and culture. This is known as systemic racism. According to a 2021 survey by the Pew Research Center, racism in America’s laws is a bigger problem for Black adults than interpersonal racism. Studies further reveal that color-blind ideologies, racist popular myths and beliefs, and society’s failure to acknowledge the vestiges of slavery, Jim Crow, and segregation perpetuate unjust policies and practices.
Race and American History
There is a long-standing history of laws, policies, and societal norms in the United States that has dehumanized people of color, particularly African Americans, and criminalized their free existence. For more than 200 years, African Americans were considered property that could be bought and sold. The justification for legalized slavery was based on the idea that Blacks were inferior and subhuman.
Free but Not Free
After the Civil War, from 1865 through 1866, many laws were enacted to keep now-freed African Americans at the bottom of the socio-economic system and push them back into slave labor. For example, vagrancy laws forced many ex-slaves to sign labor contracts that required them to return to plantations and work for White “masters.”
African Americans who were homeless or could not show their employment papers were arrested and fined. If a person could not pay the fine, they were jailed and sentenced to county labor or hired out to a private employer or plantation owner. These vague vagrancy laws allowed police to stop and harass Blacks on the mere suspicion that they were engaging in “criminal activity.”
Jim Crow
Although conditions improved for African Americans from 1867 to 1877, the rise of supremacy groups like the Ku Klux Klan stalled and, in many ways, pushed back any progress that had been made. After the Reconstruction era, a new set of laws emerged known as Jim Crow laws that were designed to keep the races separate. In 1896, the US Supreme Court upheld state segregation laws in the landmark constitutional case Plessy v. Ferguson.
Ministers and theologians also supported Jim Crow. They claimed that God intended separatism between the races and that Blacks were created to be servants. White scientists and Social Darwinists also claimed that Whites were the dominant race, both educationally and culturally superior. The Ku Klux Klan was portrayed as heroic members of society who kept “law and order” and saved the South from Blacks taking control during the Reconstruction era.
After years of demonstrations, marches, and the death of many protestors, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were passed, outlawing many of these rules and practices. Yet, hundreds of years of cultural and social conditioning had already left its mark.
The Power of Messaging
“The amygdala, a brain region associated with experiencing fear, tends to be active when Whites view an unfamiliar Black male face (regardless of their conscious reports about racial attitudes).”
“After ‘seeing’ unknown Black faces flashed at subliminal speeds (too rapidly to perceive consciously), Whites tend to show more hostility in various contexts—leading to a breakdown of social connection between different races.”
"Whites tend to more easily associate negative words (e.g., terrible, failure, horrible, evil, agony, war, nasty, and awful) with unknown Black faces, as opposed to White faces.”
“Some studies indicate that many African Americans have an implicit bias against unknown faces of their own race, similar to biases shown by Whites against Blacks.” (Literature Review: Media Representations and Impact on the Lives of Black Men and Boys (2011).)
Stereotypes in the Media
The social conditioning of a racial hierarchy throughout history and how Blacks are portrayed in the media contributes to how Blacks are perceived and treated today. Several years ago, a story emerged on news outlets regarding a Black doctor on a flight who raised her hand to assist a passenger who was sick on a plane. According to media reports, the flight attendant responded, “Oh no, sweetie, put your hand down; we are looking for an actual physician or nurse or some type of medical personnel. We don’t have time to talk to you.” The flight attendant’s internalized biases made her unable to accept that the African American woman could be a doctor.
Unfortunately, news programming and other media sources feed into these stereotypes and continue to depict people of color as less intelligent and likely to commit crimes. Studies, including one by the Sentencing Project, have found that news programs overrepresent people of color as criminals and Whites as crime victims.
A study conducted by Color of Change looked at the “actual” average in 2010–2013 of the New York City Police Department’s arrest rate for Black people for murder, assault, and theft and the “representation” of Black people as arrestees or suspects for those crimes on the four major New York City news affiliates. Researchers found that three out of four stations overrepresented Blacks as criminals by 19 percentage points. The highest distortion index was 31 percent.
Research has proven that people continuously receiving messaging that negatively depicts African Americans are more likely to internalize those images as truths. (See Qingwen Dong & Arthur Phillip Murrillo, The Impact of Television Viewing on Young Adults’ Stereotypes Towards Hispanic Americans.) In 2010, a national survey asked White participants to estimate the percentage of African Americans committing crimes such as burglaries, illegal drug sales, and juvenile crime. The participants overestimated actual Black involvement in these crimes by approximately 20 to 30 percent, as measured by arrest. (See Nazgol Ghandnoosh, Ph.D., Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies (Sept. 2014), citing Pickett, J. T., Chiricos, T., Golden, K. M., & Gertz, M. (2012). Reconsidering the Relationship Between Perceived Neighborhood Racial Composition and Whites’ Perceptions of Victimization Risk: Do Racial Stereotypes Matter? 50(1), 145–186 (p. 155–6, 160).)
In a 2002 survey, participants estimated that 40 percent of people who committed violent crimes were African American when the actual rate was 29 percent, according to crime victimization surveys. Participants also overestimated the overall rate of violent crimes committed by Hispanics.
Ban-the-Box Laws
A study released in July 2016 regarding the effects of “ban the box” laws on low-skilled workers aligns with the above research. “Ban the box” laws prevent employers from asking job applicants about their criminal history to prevent employers from discriminating against people with a criminal record.
Unfortunately, researchers found that employers who could not ask applicants about their criminal record began discriminating more broadly against Black and Hispanic males on the assumption that these men had a criminal history. Consequently, “ban-the-box” policies worked well for Whites with a criminal background but decreased the probability of being employed by 5.1 percent for young, low-skilled Black men and 2.9 percent for young, low-skilled Hispanic men.
Racial Bias and the Criminal Justice System
This assumption that all or most Black people are dangerous criminals, inferior, or lacking value can have detrimental consequences, especially when the biased person holds power or authority and is unaware of their prejudices. This situation is even more concerning regarding bias embedded in the criminal justice system. According to a 2020 report published by the Sentencing Project, Black Americans are incarcerated in state prisons at nearly five times the rate of White Americans. In 12 states, more than half the prison population is Black. Additionally, when it comes to sentencing, Black people statistically receive harsher sentences than White people who commit the same crime.
Stop and Frisk Policies
In New York City, between 2004 and mid-2012, the police stopped more than 4 million people; almost 90 percent of those stopped were Black or Latino, and only 12 percent of Blacks and Latinos stopped were charged with a crime. In 2008, a class-action suit was filed against New York City, claiming the New York Police Department was illegally stopping and frisking individuals without any reason other than race. In Floyd v. The City of New York, a federal court found that New York City’s “stop and frisk” policies involved racial profiling and unconstitutional stops.
The Department of Justice also investigated police departments nationwide and found a pattern or practice of racial bias. In 2015, the Department of Justice reported that the Baltimore Police Department disproportionately stopped African American pedestrians in each of Baltimore’s nine police districts and were more likely to stop African Americans multiple times within a short period. In the five and a half years of data collected, African Americans accounted for 95 percent of the 410 individuals that the police stopped at least 10 times. One African American man in his mid-fifties was stopped 30 times in less than four years, yet none of the 30 stops resulted in a citation or criminal charge.
Following the 2020 killing of George Floyd, the Department of Justice investigated the Minneapolis Police Department (MPD). It found that systemic problems with the City of Minneapolis and MPD made what happened to George Floyd possible. Specifically, the findings showed a pattern of depriving people of their rights under the Constitution and federal law, including:
using excessive force- both lethal and less lethal;
unlawful discrimination against Black and Native American people in its enforcement activities;
violating the rights of people engaged in protected speech; and
discriminating against people with behavioral health disabilities when responding to calls for assistance.
In a 2020 study analyzing a dataset of nearly 100 million traffic stops conducted across the country, the findings showed similar results. Black drivers were twenty percent more likely to be stopped than White drivers. It also found that Black drivers were 1.5 to 2 times as often as White drivers to be searched and were less likely to carry drugs, guns, or other illegal contraband once stopped.
Racial Bias and the School-to-Prison Pipeline
Children are also greatly affected by interpersonal and institutional racism. According to the US Department of Education Office for Civil Rights, disparities in school suspension rates between White students and students of color are seen as young as preschool. Although studies fail to show that Black students misbehave at higher rates than White students, Black students are three times more likely to be suspended or expelled. Other studies have found that White students were more likely to be disciplined for nondiscretionary offenses such as smoking, vandalism, and obscene language, while Black students were more likely to be disciplined for discretionary acts such as disrespect. (Libby Nelson & Dara Lind, The School-to-Prison Pipeline Explained (February 2015)).
Regarding student arrest and referrals to law enforcement, Black students made up 15.1 percent of all enrolled children; however, they accounted for 31 percent of all in-school arrests. For the 2017–2018 school year, Black and Hispanic students represented 58 percent of in-school arrests or police referrals. (U.S. Department of Education, Office for Civil Rights, 2017-18 Civil Rights Data Collection, released October 2020, updated May 2021.)
A Shift in the Right Direction?
Social media and technological advances have allowed people to see some of the harsh realities that African Americans face due to their race. Images such as those of Eric Garner dying from a chokehold while being arrested on the mere suspicion of selling single cigarettes from packs without tax stamps or the police firing shots at a 12-year-old Tamir Rice, who was playing with a toy gun in a community park, have opened the door for political, legal, and community activism. In addressing a town hall, former President Obama highlighted the importance of establishing strong community-police relationships through training police officers on how to recognize and eliminate implicit bias. In June 2016, the Department of Justice announced as part of its regular training curriculum that it would include a course on implicit bias that all prosecutors and law enforcement agents would be required to take.
In 2020, the Justice Department suspended all diversity and inclusion training for its employees and managers to comply with an executive order prohibiting workplace training on divisive concepts, including “race or sex stereotyping” and “race or sex scapegoating.” This executive order banning diversity training was reversed under the Biden administration.
Helping to Combat Implicit Bias at the ABA
Within the American Bar Association, Past-President Paulette Brown, during her term in 2015, outlined one of her key initiatives to eliminate bias and enhance diversity in the legal system. Under her leadership, the ABA adopted a policy encouraging groups responsible for Mandatory Continuing Legal Education to require diversity and inclusion as a separate and distinct credit.
The ABA Section of Litigation also launched a website to help combat implicit bias in the justice system. This website includes video training, an implicit bias test, and a toolbox for group presentations. There have also been several campaigns to end the school-to-prison pipeline, and schools have begun amending their disciplinary handbooks to incorporate restorative justice policies. Some practices include peer-mediated small groups, peer juries, community service, and classroom circles to resolve conflict and teach students how to recognize and manage their emotions. There are also diversity tool kits online and other resources that address ways to eliminate bias. (See Eliminating Bias: Microaggressions and the Legal Profession).
Maintaining the Integrity of the Legal Profession
As attorneys, we are ethically obligated to maintain the integrity of the legal system. The ABA Model Rules of Professional Conduct: Preamble & Scope states, “A lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.” The data discussed above reflects that there is much work to be done to advance justice for all.
If you are a lawyer who wants to help combat racial bias, here are a few suggestions to get you started:
Learn about your own biases (Harvard Implicit Bias Test).
Learn about institutional racism through books, articles, and documentaries.
Identify ways that you can challenge individual and structural racism in your personal life and in the institutions in which you belong.
Work with a DEI consultant to help support your DEI initiatives.
Form a committee within your local and state bar committed to addressing racial disparities within the legal profession.
Research and support legislative initiatives to improve disciplinary policy in education and community policing. Examples of policy agendas/initiatives can be found at naacpldf.org, aclu.org, lawyerscommittee.org, nul.iamempowered.com, and www.nationalbar.org.
Volunteer to assist an individual harmed by police misconduct or discrimination in employment or education. For pro bono opportunities, contact your local legal aid clinic. There are also community service projects found on lawyerscommittee.org.
Join and support organizations that are working toward racial equity.
Organize a community town hall meeting with law enforcement and community members. As officers of the court, attorneys are in a unique position to bridge the gap in understanding between law enforcement officers and the communities they serve.
Organize a “Know Your Rights” workshop at a local high school, teaching students how to handle confrontations with law enforcement. Some materials to use in such a workshop can be found at GeorgiaLegalAid.org.