In the legal system, implicit biases have the potential to influence a wide range of decisions, including by lawmakers, judges, attorneys, and jurors. Some of these influences may be easy to perceive, while others can be deeply hidden. Here are a couple examples:
- Employment Discrimination Law. A corporate manager, without realizing it, relies on ethnic stereotypes when evaluating resumes for a new job opening. The manager recommends not interviewing an otherwise qualified candidate based upon a gut feeling that the person wouldn’t be a good “fit.” Later that day, a director at the same company is considering whether to grant promotions to existing employees. The director believes that one employee seeking promotion never works late and appears to favor family responsibilities over urgent work matters. The director doesn’t realize it, but this perception has been affected by gender-based stereotypes.
- Criminal Law. Police officers spot a group of young men in a car, and based on the men’s age and apparent race, become suspicious of their activities. They follow the men’s car, and eventually pull over the men for changing lanes without signaling. After deciding to search the vehicle, police find small quantities of prescription painkillers and arrest the men for possession of drugs without a prescription. When the men are charged in court, the judge sets an usually high bail amount and the prosecution states its intention to charge the men with the harshest crimes possible.
These examples raise questions about implicit bias and justice in the American legal system. Scholars of implicit bias and employment discrimination, for example, have pointed out that the law’s “intent to discriminate” standard fails to protect the majority of stereotyped employees because some managers may not actually intend to discriminate. As a result, the law may not adequately protect citizens who are wrongly stereotyped.
Similarly, in criminal law, there are often few protections for people who are stereotyped as aggressive or potentially criminal. Not only are these people more likely to have uninvited interactions with police, but prosecutors, jurors, and judges may all treat them more harshly once they have been arrested.
Rebecca Hetey & Jennifer Eberhardt, Racial Disparities in Incarceration Increase Acceptance of Punitive Policies, Psychological Science (2014)
Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489 (2005)
Jennifer L. Eberhardt et al., Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes, 17 Psychol. Sci. 383 (2006) [hereinafter Eberhardt et al., Looking Deathworthy];
Phillip Atiba Goff et al., Not Yet Human: Implicit Knowledge, Historical Dehumanization, and Contemporary Consequences, 94 J. Personality & Soc. Psychol. 292 (2008)
L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 Oh. St. J. Crim. L. 115, 121 (2014)
Implicit Racial Bias Across the Law (Levinson & Smith, eds. 2012)