A Presentation to the Ohio Courts of Appeals


A Presentation to the Ohio Courts of Appeals Judges Association (OCAJA) – Fall Conference 2012 [Download Presentation] PPT

Sharon L. Davies
John C. Elam/Vorys Sater Professor of Law
Moritz College of Law, The Ohio State University
Executive Director
Kirwan Institute for the Study of Race and Ethnicity

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Presentation Notes

Implicit Bias Implications for Criminal Law and Policy

Presentation to Ohio Court of Appeals Judges Association (OCAJA)

Professor Sharon Davies

 Executive Director, Kirwan Institute

September 12, 2012


At the Kirwan Institute we study the forces that create and sustain barriers to opportunity for historically marginalized Americans in a variety of critical life domains, including education, housing, employment, health and criminal justice. Our work around the concept of structural racialization has shown us that deeply impactful systemic processes can create and perpetuate racial inequality and often operate without visible racist intent. In other words, racialized outcomes do not require racist actors.

We are also learning that the ways in which individuals think about, talk about and act on race can also powerfully impact an individual’s access to opportunity, raising serious social justice concerns. For instance, emerging research on implicit bias is beginning to show that human beings can have attitudes about race that operate largely below the level of conscious awareness.  These attitudes can influence our thoughts about, judgments of, and decisions involving others, and unwittingly contribute to racial and ethnic disparities about which we are all very consciously concerned.

Updating our conceptions.

This means that our conception of the way in which race influences human behavior is outmoded, because it continues to be grounded in limited ideas of intentionality and conscious racial animus or prejudice.  I don’t mean to deny that there are still consciously racist actors among us, but it is reasonable I think to say that they have been pushed to the margins of civil society. That is real and meaningful progress, but we are not finished yet. I hope to explore with you this morning some of the emerging learning about the reality of unconscious or implicit racial bias so that we can think together about its implications for criminal justice.

Although I will focus primarily on implicit or unconscious racial bias, it is important to note at the start that humans harbor all sorts of quickly activated biases, including powerful mental associations about gender, age, religion, class and more.

So, what is unconscious or implicit racial bias?


Deconstructing Implicit Bias

Essentially, implicit racial bias is the process by which the human mind automatically and unintentionally sorts and allocates benefits and burdens to members of different racial groups.  In the most serious of circumstances, it is a process that can have harmful, even deadly consequences.


As the name implies, the concept of implicit racial bias has two main components.  First, it is implicit, which for present purposes means that it is generally operates outside our awareness and control.  We are talking about associations that over time have become non-volitional.  Implicit associations operate automatically.  Because of their automatic nature, people are often unaware that they are even in play.  We are also not particularly adept at assessing how much they can influence our judgments, beliefs, decisions and real-world behaviors.


Second, also as the name implies, the concept involves racial bias, not in the conventional way society and law think about and demand evidence of racial prejudice, meaning proof of intention to discriminate for racial reasons, but in the sense that its existence disproportionately affects people of different races in meaningful ways.


A fundament aspect of implicit racial associations uncovered by social cognition research is that these associations often diverge from our self-reported, more egalitarian racial attitudes, leaving us with in-group preferences and out-group stereotypes and anxieties.


The evidence.


Why should we believe that?


Some of you may be fans of Daniel Kahneman, Noble Prize winner for his work in psychology that challenged the rational model of judgment and decision making has written a great book called Thinking Fast and Slow, to explore the two very different ways in which the mind works.  For ease of lay readers Kahneman elegantly calls these System 1 and System 2 thinking.


System 1 operates automatically to construct a coherent interpretation of the world around us at any given instant.  It operates quickly, with little or no conscious effort and no sense of voluntary control. Its core quality is associative memory, meaning we often process things associatively.


By contrast, the prototype of System 2 thinking is slow, deliberative, effortful, and orderly. This is the attention we bring to bear on our most effortful mental tasks.


As lawyers and judges, we tend to identify ourselves as thinkers with System 2, the conscious reasoning self that makes deliberative choices, and decides what to think about and what to do in a methodical and disciplined way.


But what Kahneman and many other social cognitive researchers have shown is that more often than not, our brains are way ahead of us.


The Brain’s Processing Capacity.

Neuroscientists estimate that the human brain processes about 11 million pieces of information in a second, but we are only consciously aware of a fraction of that data, maybe 40 at most.


These pieces of information are processed instantly, automatically and effortlessly through a process called associative activation.  Basically, we think associatively all the time, without effort.


For example, we associate things in accordance with their properties . . .


Lime to Green

Lemon, Yellow

Sky  ____?


Our associative processing abilities are effortless, easily connecting categorical concepts with each other, and words as well.  Like:


Night and _____?

Black and _____?

Young and _____?


The automatic nature of the associations stored in our System 1 mind can even effortlessly rearrange things so that we are able to make sense of them, as when we try to read this sentence together out loud:


“I cdnuolt blveiee taht I cluod aulaclty uesdnatnrd waht I was rdanieg.”


Now think about this.

Every word of that sentence, save “I” and “was” is mispelled.  Yet you all read it without effort.

How is that possible?

Maybe it was an easy one, or maybe you are just an advanced group.  Let’s try another.


“Aoccdrnig to a rscheearch at Cmabrigde Uinervtsy, it deosn’t mttaer in waht oredr the ltteers in a wrod are, the olny iprmoatnt tihng is taht the frist and lsat ltteer be in the rghit pclae. The rset can be a taotl mses and you can sitll raed it wouthit a porbelm. Tihs is bcuseae the huamn mnid deos not raed ervey lteter by istlef, but the wrod as a wlohe.

Amzanig huh?… and I awlyas thuhogt slpeling was ipmorantt.”


This is your fast, System 1, automatic associative processing abilities on full display.  Not only does the brains recognize objects as words, it effortlessly rearranges the letters in a way that makes sense of them.


Pretty cool, right?  Way cool.


But what about System 2 thinking, our rational deliberative slower thinking selves?  What does that add?


System 2 Thinking.

According to Kahneman, for the reasonably educated adult, looking at the following problem would actually involve both System 1 and System 2.

17 X 24


System 1, would immediately recognize it as a multiplication problem, and probably also know that it could be solved with pencil and paper, if not without it.  The point is that we are all born with a brain designed to perceive the world around us, to recognize objects.  And our ability to do that very quickly and automatically is honed through prolonged practice.


But to solve this equation is another thing altogether.  To do that we would have to activate System 2’s attentive and reasoning abilities.


For those of you already doing that, what we don’t always realize is that solving this problem of arithmetic involves not only our mind, but our body as well.  Unknowingly, your muscles tensed up, your blood pressure rose, and heart rate increased and your pupils dilated.  They will contract back to normal as soon as you end the work of solving the problem, or you give up.


In many activities it is important that we pay attention and rely on System 2, for we will perform far less well if we do not.  Think about the more careful attention we give as drivers when we are passing an 18-wheeler on the highway.  We are more alert.  If we have a passenger we momentarily tune him out to maintain our focus.  As social beings, we are aware of this, as a parent of a child driver we might even stop talking momentarily so as not to disrupt their attention to the road.

So the intense focusing mechanisms of the brain enable us to perform tasks more successfully.


So what is 17 X 24?   408.  Very good.  But our focusing capacities can also make us deaf or blind to stimuli that would otherwise or normally attract our attention.  For example, those of you busy doing the math problem or waiting to hear your correct answer confirmed, may have only half heard my scintillating 18-wheeler example.


Still it can’t be denied that when we focus with the full force of our System 2’s attentive power we can see things we otherwise wouldn’t. To show this, I’m going to ask you to watch a short video clip.  It is a clip of 2 teams playing basketball, one team dressed in white, the other in black, the white team has the ball.  I want you to see if you can count how many times the team in white passes the ball.


Some of you may have seen this video before.  If so don’t ruin it for the rest.


For those who haven’t seen it, I’ll warn you, the other team will be tossing a ball around too which will make it tougher to count, but do your best.  Count how many passes the team dressed in white makes.   Ready?  Here we go.



Could you do it?  How many passes?  13.  Right. How many of you counted 13?  Very nice display of the attentive capability of System 2 thinking.  But did you see the moon walking bear?


Let me play it again.  PLAY IT AGAIN.


Many who see this and fail to see the moonwalking bear are sure it was not there because they can’t imaging missing such a striking event.  Had any of you seen this video before?  Can you attest to the fact that the bear paraded through the first time I showed the clip?


They were able to see it because they knew what was coming having seen it before.  And you probably enjoyed seeing it and knowing other of your brethren were blind to it, right?  But as you were waiting for the bear to appear were you able simultaneously to count the passes?


This clip tells us two important things about how the brain works: that we can be blind to the obvious, and that we are also blind to our blindness.


So how does all of this relate to Implicit Racial Bias?


I want to be clear.  This is not Sigmund Freud’s or the psychoanalyst’s conception of the unconscious. This relates to the study of the unconscious mechanisms of the brain that empirical psychology has revealed as a set of pervasive, sophisticated mental processes that size up and attempt to make sense of our world.


And in some ways the goal of learning is to make that which requires conscious attention at one point in our lives, fade into the unconscious background as we master it.  Once we’ve mastered something, we no longer have to consciously work at it, we can rely on our handy System 1 “auto-pilot.”


So this is an extremely efficient system.  But unfortunately it is also prone to error.


With respect to race, for example, research suggests that our automatic unconscious attitudes can be significantly less egalitarian than our explicit racial beliefs and convictions. Since race is a sensitive topic, we typically avoid talking about it even when we are partially aware that another person’s race may be affecting our judgments about them.


I am teaching a seminar on Race and Criminal Law this semester, and last week one of my Black male students told the class that he grew up in a middle class home in Gahanna, had attended a high performing K-12 school that was predominately white, at that at times when he is alone at night and sees an unknown male behind him, he feels relief when the male is white, and heightened anxiety if  the stranger is black.


No one in the class admitted having any similar reaction, but neither did anyone upbraid him.  He simply had the courage to say out loud what most usually don’t.


But this avoidance leaves our negative implicit attitudes unchallenged; left unchallenged, these attitudes and associations gain in power.



Where do these automatic associations and implicit biases come from?


Researchers believe we develop these associations and biases from a very early age and over a lifetime. Regarding race and racial imagery, we are bombarded with direct and indirect messages every day.

Images in the media, what we hear people say, sometimes those closest to us or in our inner social circles; these are the things that profoundly impact the way that we think about the world, including race, particularly about people whose race and ethnicity differ from our own. For example, if a child repeatedly hears sees stereotypic portrayals about persons of a certain race as possessing a particular unfavorable trait or characteristic, it would not surprise us if the child  internalized those views. As the child moved into adulthood, he or she might unconsciously or consciously look for information that reinforced those views, while ignoring contradictory information even when it is compelling (confirmation bias) .


This does not suggest that implicit racial biases cannot be corrected; it does suggest that this is a very difficult process that starts with awareness.


More than a decade of research on the unconscious and automatic activation of racial associations has shown that they are easily activated, and they can also be measured.


The Implicit Association Test (IAT).  Whatever our conscious or explicit attitudes and intentions, social psychologists have discovered a set of biases that operate beneath the radar screen.  These “implicit associations,” have been uncovered, for instance, through an internet-based experiment called the implicit association test (or IAT).  Basically, you hit one on your keyboard to pair the picture or word in the middle if the screen to the word or category on the left of the screen, and another key to pair the picture with the category on the right side of the screen.


How many of you have already completed the IAT; if you haven’t, I strongly recommend it.  It is fascinating.


As the (IAT) proceeds its gauges implicit racial bias by measuring the amount of time it takes an individual to make an association between two concepts displayed on a computer screen as either words or images. So, for example, a person with implicit bias against African Americans might take longer to pair or associate the  word “good” when a Black face appears on screen, than the word “good” when a White face appears on the screen.  These studies have revealed that people perform tasks well when they rely on well-practiced associations between objects and qualities, and less well when the associations are weak.


For example, this slide shows a photo of an African American presented as a stimulus, the participant taking the IAT would have to decide whether to indicate this photo as African American/Good or European American/Bad. In another slide a picture of an African American where the words African American or Bad and European or Good.  The test measures how quickly participants are able to match the pictures with the displayed words.


Hundreds of thousands of IAT have been taken on the web and they consistently show that a majority of test takers exhibit implicit racial bias. Most often, the bias is in the direction of the stereotype-congruent pairing (when white faces are paired with “good” words, and black faces with “bad” response time is reduced).   IAT researchers report that roughly 75% of White Americans who have completed the test show a “robust association” of white with good, and black with bad.


Somewhat surprising to some, is that the studies also show that members of bias-affected groups harbors some of the same biases against their own group.


Far from living in a post-race America, the evidence is that racialized associations are ubiquitous.


The Shooter Bias Studies.


Responding to great number of incidents where unarmed black men have been killed by police officers, social cognitive scientists have developed shooter bias studies.  Prof. Joshua Correll devised a custom made videogame that examine race based reaction differences to potentially threatening individuals.  The game instructs participants to shoot perpetrators holding a gun as fast as they can, but not to shoot innocent bystanders who are holding non-weapons like a cell phone or wallet.  The game then flashes random photos of white and black faces, some with guns, others with harmless items. Participants press one key to shoot, another not to.


The study revealed that students were more likely to mistakenly fire at unarmed black images than unarmed white images, and to take longer to decide not to shoot unarmed black images than to desist against unarmed white images..


When testing trained police officers, the results were more mixed.  Some of the initial results were similar.  But after repeated tests, officers scored better. As the test began, results were the same as with college students: Police officers were more likely to mistakenly shoot black suspects holding harmless items than white suspects holding the same items. They made an average of 3.63 errors over 20 trials when the suspect was black, but only 2.65 errors when the suspect was white. After another 80 trials, about 40 of which included the key situation of a person holding a harmless object, the disparity between reactions to white and black suspects disappeared. During the second half of the experiment, the average number of errors for black suspects diminished to 2.60, statistically indistinguishable from the rate for white suspects. Researchers believe this is a hopeful result, suggesting that police officers can be trained to eliminate bias in their work. They may be right, but police are also “trained” by what they actually see every day as the patrol the streets. This leaves the question whether that counter “training” will undermine whatever they learn in a few hours in the training room?


Researchers have also begun to investigate the cognitive roots of these shooter biases.  A hypothesis was that the biases might show up in brain processes that moderate responses to fear.  Prof. Correll looked at fluctuations in participants’ electrical brain activity  while the game was being played.  That study showed racial errors correlated with in the electrical activity in the brain.  The participants’ brain activity showed more threat-related brain activity and less control response activity when faced with the black actors than the white actors, even when the black actors had no guns.


Implications for Criminal Law and Policy.

The body of implicit bias learning has profound implications for the criminal justice system.


Research has shown that,like others, jurors, prosecutors, police officers, judges (due respect) even criminal defense attorneys are prey to implicit automatic racial biases.


Because implicit bias operates outside our conscious control, people are often unaware that they have been activated.  So, for example, a White juror in a murder case might say in voir dire and sincerely believe that the race of the murder victim is unimportant, when in fact it is more important than he or she believes.


  1. Racial Profiling

In 2010, only 23 percent of New York City’s residents was Black.

Yet blacks comprised  55% of the those stopped by the police.   Why?

Implicit bias learning offers at least a partial explanation worthy of our consideration.


IAT results and shooter bias studies suggest that blacks are strongly associated with concepts of danger and criminality.  If that science is valid, it would be no surprise that police regard black males on the street with greater degree of suspicion and dangerousness, warranting a disproportionate numbers of stops and frisks.


  1. Assessments of evidence, guilt, and sentencing.

Although the research is not yet advanced enough to establish that decision makers impose harsher sanctions on Black Americans , that implicit bias research findings do provide some support for that hypothesis.  That research has shown conclusively that white and black Americans possess negative implict biases against blacks.  When the brain categorizes person as black , this triggers a storehouse of beliefs about dangerousness, criminality, violence.


In another study two professors tested whether priming mock jurors with the image of a dark-skinned perpretator might alter judgments about the probative value of evidence.  They provide the jurors with a story about an armed robbery.  After reading the story the jurors where shown five crime scene photos  for 4 seconds each.  All jurors saw the same 5 photos, except the 3 one, in which ½ saw a dark skinned perpetrator, the other half a light skinned perpetrator.  They then had them rate the probative value of various pieces of evidence.  The participants who saw the photo of the darker skinned perpetrator were found to be more likely to evaluate the evidence as tending to indicate guilty.  Other studies have reached similar results.


Prof. Matthew Lieberman used functional magnetic resonance imaging technology to measure the level of amygdala activity of participants after seeing a black versus a white face.  The amygdala is a region of the brain that mediates emotional responses, including fear to perceived threats.  Lieberman found that all participants, white and black, when shown a black face the amygdala activity increased.  The authors concluded the most plausible explanation was that black faces activated the stereotype of blacks as threatening.


  1. School Discipline as an Entry Point.

How does this show up in the real world?


This shows 3 officers of the St. Petersberg Florida police force decided it was necessary to restrain a 5 year old kindergartener with handcuffs, and when they didn’t fit, with plastic , African American students, and especially African American boys, are disciplined more often and receive more out-of-school suspensions and expulsions than White students who commit the same offenses.


Research shows that African American students, and especially African American boys, are disciplined more often and receive more out-of-school suspensions and expulsions than White students who commit the same offenses. Perhaps more alarming is the 2010 finding that over 70% of the students involved in school-related arrests or referred to law enforcement were Hispanic or Black.


The explanation most obvious to many is that these students commit more infractions.  But that has not been supported by available data.  Rather black youth are referred to principal offices for more subjective behaviors such as disrespect and disorderly conduct.  A massive study of 1 million Texas 7th graders found that black and latino students were punished more harshly for discretionary first offenses than their white peers.


A 2009-2010 survey of 72,000 schools (kindergarten through high school) shows that while Black students made up only 18 percent of those enrolled in the schools sampled, they accounted for 35 percent of those suspended once, 46 percent of those suspended more than once and 39 percent of all expulsions (Lewin, 2012).


Over all, Black students were three and a half times as likely to be suspended or expelled than their White peers (Lewin, 2012)


Over 70 percent of the students involved in school-related arrests or referred to law enforcement were Hispanic or Black (Lewin, 2010).


Quote from Fyodor Dostoyefsky:

“Every man has reminiscences which he would not tell to everyone but only to his friends. He has other matters which he would not reveal even to his friends but only to himself, and that in secret. But there are other things that a man is afraid to tell, even to himself, and every decent man has a number of such things stored away in his mind.”


This quote challenges us to think about whether these associations are really fully unknown to us, or whether we might be partially aware of them and made uncomfortable by them because they conflict so powerfully with our egalitarian commitments.



The volume of evidence that implicit racial associations is large and growing.  The biggest debate is whether we are fully unconscious of them.  Researchers disagree about that.  Some evidence suggests we are at least partially aware.  But the evidence also suggests that we are unaware of how these associations may be playing out in our discretionary calls and decision making.


In closing, I want to come back to what my Black male student admitted to in class, that he would be nervous seeing a Black male close behind him and he would be a stranger who was a white male, and that leaves him feeling guilty.  This statement tells us in unvarnished fashion that our minds do an enormous amount of work for us without our bidding.


But his feeling of guilt also tells us that it is possible in the many moments when we have more time to reflect on our assessments of, impulses toward, and treatment of others, to consciously activate our egalitarian convictions and commitments.


Thank you very much.