Race and the Injustice System

How race corrupts decision making throughout our justice system

Posted Oct 17, 2013

Careful analyses of sentencing decisions, for example, show that defendants convicted of murder are more likely to be sentenced to death if the victim was white than if the victim was black.  Conversely, defendants found guilty of murder are more likely to receive the death penalty if they are black than if they are white.  Perhaps even more disturbingly, looking only at sentencing decisions for black defendants, those whose physical appearance is more stereotypically African American (who look “more black”) are more likely to be given the death penalty than defendants with less stereotypically black facial features.

Leaving capital punishment, the rate of incarceration in this country is much greater for African Americans than other racial groups. Much of the disparity in incarceration rates is due to the so-called War on Drugs, which has tended to disproportionately target populations in urban areas, and particularly young people. We know that people—and especially males—do risky and ill-advised things when they are young.  And, importantly, our legal system takes this into account by holding minors less culpable than adults and sentencing them less harshly. But there’s racial bias here too.  A recent experiment found that compared to white peers, black juvenile offenders were considered more blameworthy for the same crime, and this greater allocation of blame was associated with stronger support for harsh sentences like life without parole. Young white offenders are more likely to be treated as “just kids”, whereas young blacks are treated as fully culpable adults.

Long before a verdict has been reached, however, racial bias enters the courtroom. Next to a signed confession, eye-witness testimony is the gold standard of our legal system. If a witness says that they with their own two eyes saw you burgle, stab, molest or shoot someone, it’s very likely you are going down for the crime. And yet, study after study has shown that eye-witnesses are troublingly unreliable sources of information. Faulty eye-witness testimony occurs for a number of reasons, including the reconstruction of memories over time and the integration of new information into those memories after the fact—this is why leading questions and prolonged interrogations can be dangerous tools. But eye-witness testimony—particularly eye-witness identification of suspects—may also be corrupted by race and other group distinctions.  It turns out that people are significantly less able to recognize faces of racial outgroup than racial ingroup members, and as a result are more likely to mistakenly believe that they have seen an outgroup member before when they haven’t.

Finally, prior to the courtroom, there is obviously racial bias in law enforcement and on the street. There are multiple things we could talk about here, including racial profiling.  Here I will focus on mistaken shootings.

When we think of mistaken shootings, we usually think about police officers shooting innocent civilians.  But there are mistaken shootings among police officers as well.  According to a recent report by the New York State Task Force on Police-on-Police Shootings, there were 26 fatal incidents of this kind in the United States between 1981 and 2009.  And the numbers are indicative of racial bias.  Looking across the incidents, 12 of the officers killed were black or Hispanic, 14 were white.  Although these rates are nearly equivalent, across the country there are many more white than black and Hispanic officers, strongly suggesting that these incidents are not random with regard to race.

However, these data are especially revealing if we compare police shootings of on-duty versus off-duty officers.  Among the on-duty officers killed in these incidents, only 1 out of 13 was a minority group member—less than 8%. However, among the off-duty officers killed, 9 of 12 were minority group members—75%. When they are wearing the uniform, black and Hispanic police officers do not seem to be at heightened risk of being shot by a fellow officer. The uniform is a visible signal of shared group membership: we’re both cops, don’t shoot!  Out of the uniform, however, black and Hispanic police officers are at much greater risk than their white colleagues of accidentally being shot and killed.

Most mistaken shootings are not of fellow police officers, however.  Responding to these incidents, which happen with disturbing regularity, psychologists have found time and again that people in lab experiments are faster to recognize weapons—like guns or knives—when they are paired with photos of African Americans than with Caucasian Americans.  Worse, people are also more likely to mistake another object—like a wallet, cell phone or a tool—as being a gun when paired with African Americans. Mistaking a wallet for a gun is a dangerous mistake to make, and experiments published last year found that people were also more likely to make this error when they were holding a gun themselves. Holding a gun made it more likely that people would, for example, misperceive a casually held soda can as a weapon.  Again, these are biases with obvious and dangerous consequences.

The sorts of biases I have described here—in judgments of blame, face and object recognition – are largely automatic.  They are often very rapid reactions that are at odds with decision-makers’ own explicit values. These biases occur among all sorts of people, and the people who display them are not usually racists in the traditional sense.  But nevertheless, their decisions are influenced by a set of cultural stereotypes—about minorities and crime, about African Americans and violence, and so on.  These stereotypes are integrated into the web of associations that shape perception, evaluation and action.  It is important to note that these biases are not inevitable.  The police-on-police shooting data illustrate, for example, that they are less likely to affect decisions when people are perceived as ingroup members than when they are perceived as belonging to an outgroup.  Nevertheless, these biases are pervasive and they are dangerous.

As but one example…there are a set of laws in this country (varying state-by-state) that say you are entitled to use deadly force against someone else outside the home and with no duty of retreat if you feel sufficiently threatened by them.  If perceptions of threat were veridical—if they were unbiased by racial categories and stereotypes— then these laws would probably still be a bad idea, but they would not necessarily be socially unjust. But given what we know about the psychology of racial bias, which results in young black men in particular being systematically misperceived as guilty, threatening and dangerous, these so-called Stand Your Ground laws are themselves dangerous and they are wrong.  They put members of minority and stigmatized communities asymmetrically at risk. 

Given what we know about the psychology of racial and other intergroup biases, it is time our society seriously rethought the logistics—the laws, procedures and policies—of our justice system. Unless she takes her biases into account and acts to mitigate them, Lady Justice will continue to be anything but just.

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This is the abridged text of remarks I gave at a panel discussion on Trayvon Martin, Race and Justice at Lehigh University on October 16, 2013.

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Copyright Dominic J. Packer, 2013. All rights reserved.