Fault Lines
23 June 2017

The Next Frontier Of Implicit Racial Bias In Sentencing

September 14, 2016 (Fault Lines) — I  have devoted substantial personal resources over the past decade writing; doing empirical research; and educating judges, lawyers, and jurors, about the role of implicit bias in decisions we each make. Later this year I am excited about the release (Florida L. Rev.) of a national empirical study, the first of its kind, about implicit bias in the sentencing of an Asian and Jewish defendant in a white-collar sentencing scenario by state and federal judges. The results of the study, by me and my co-authors, are complex, nuanced, reassuring and troubling.

In an upcoming invited piece for the Yale Law Journal Forum, I write about the “Next Frontier” of implicit racial bias in sentencing. Social scientists, including historians, have long known studied and written about the socioeconomic effects of darker skin tones among blacks. Indeed, Noble Prize winning Swedish economist, sociologist and politician, Gunnar Myrdal wrote about dark skinned blacks in his famous work An American Dilemma: The Negro Problem and Modern Democracy (1944), quoting the famous line from Charles S. Johnson, Growing Up in the Black Belt 257 (1941): “The evil of and ugliness of blackness have long been contrasted in popular thinking with the goodness and purity of whiteness.”

Thus, it should not be surprising that social scientists have discovered dark-skinned Blacks compared to light-skinned Blacks have fewer good job, less education, fewer marriages, are less likely to obtain political office, live in more segregated neighborhoods, obtain lower socioeconomic status, and likely are incarcerated rather than given probation and serve longer sentences. This is because Whites and many Blacks tend to stereotype darker skin with aggressiveness, dangerousness, and propensity toward crime and violent crimes, thus triggering implicit racial bias.

But the emerging social science research now goes further with regard to sentencing into what a titled in my YLJ Forum piece: Implicit Racial Bias In Sentencing: The Next Frontier. The new frontier is the intersection of darker skin tones and Afrocentric features. In cutting edge research, including two recent Ph.D dissertations, all using sophisticated regression analysis, establish that the presence of strong Afrocentric features (turns out this is both an easy way to measure this and a strong consensus on which defendants have strong, medium, and few Afrocentric features) is the most important variable in determining the length of sentences. The studies span thousands of inmates in Florida, Minnesota, North Carolina and Oregon.

Perhaps most fascinating is that the Afrocentric feature effect in lengthening sentences is even more pronounced for those fewer White defendants who possess stronger Afrocentric features than other White defendants. At bottom, the emerging studies strongly suggest that race, by itself, may be much less of a determining explicit or implicit factor in the length of sentences than darker skin tones and stronger Afrocentric features.

Until lawyers and judges become aware of this phenomenon, it is unlikely that successful de-biasing techniques well be developed and implemented to solve this new frontier in implicit racial bias in sentencing. If you’re interested in learning more about this and can’t wait for my YLJ Forum piece to be published on line check out these studies all of which can be found online:

Amanda Mae Petersen, Beyond Black And White: An Examination Of Afrocentric Facial Features And Sex In Criminal Sentencing 7 (June 25, 2014) (unpublished Ph.D dissertation, Portland State University).

Ryan D. King & Brian D. Johnson, A Punishing Look: Skin Tone And Afrocentric Features In The Halls Of Justice, 122 Am. J Soc. 90 (2016).

Jacque-Corey Cormier, The Influence Of Phenotypic Variation On Criminal Judgment (June 2012) (unpublished Ph.D dissertation, Georgia State University).

The Impact Of Light Skin On Prison Time For Black Female Offenders, 48 Soc. Science 250 (2011).

Irene V. Blair, et al., The Influence Of Afrocentric Facial Features In Criminal Sentencing, 15 Psychol. Science 674 (2004).

8 Comments on this post.

Leave a Reply

*

*

By submitting a comment here you grant this site a perpetual license to reproduce your words and name/web site in attribution.

  • SPM
    14 September 2016 at 12:06 pm - Reply

    What about the explicit gender bias in sentencing? One need simply compare the number of male and female individuals on federal “death row.”

  • Richard G. Kopf
    14 September 2016 at 1:13 pm - Reply

    Mark,

    Fascinating.

    I confess that I have known this–the Afrocentric feature effect–in my heart for a long time. It is very difficult for me to overcome–it is almost like it is hard-wired. Good for you for bringing it into the daylight.

    All the best.

    Rich

  • Mark W. Bennett
    14 September 2016 at 2:04 pm - Reply

    Rich,

    You nailed it. It is hard-wired in virtually all of us including me, too. a recent study which I did not have time to mention or discuss in the Yale piece because of word number restrictions involved 3, 4 and 5 year old children in cities in China and Africa that are 99% the same race. Children, even at this young age had very strong in-group favoritism and out-group hostility on special IAT’s test for young children. The Chinese kids had strong anti-white and black implicit bias and the African kids had strong anti-white and Chinese bias even though they had never met someone of those races. So this is very hard to overcome but self-awareness is the first step. Unfortunately, based on recent empirical studies of mine federal judges have very strong blind spot biases, that is, we can see bias in others and not in ourselves and the older the judge the larger the blind spot. Article III judges have larger blind spots than magistrate judges or bankruptcy judges and far larger ones than lawyers. So we all have lots of work to do. Best

    mark

  • Noel Erinjeri
    15 September 2016 at 10:55 am - Reply

    How does one quantify the “Afrocentrism” of a defendant’s features?

  • Mark Bennett
    15 September 2016 at 4:09 pm - Reply

    Noel, great question. As the studies I cited indicate, and many others have replicated,it’s a actually very easy on continuum. And when people are tested on it there is very widespread agreement on the extent of Afrocentrism. That is actually the least of the problems in doing empirical work on this issue. Thanks for asking.

  • The next frontier of implicit racial bias in sentencing | NC PDCORE
    12 October 2016 at 3:02 pm - Reply

    […] The Next Frontier of Implicit Racial Bias in Sentencing (Mimesis Law, September 14, 2016) […]

  • Longer Sentences, The “Best You Can Get” | Simple Justice
    22 December 2016 at 10:06 pm - Reply

    […] Fault Lines, Judge Mark Bennett has written at length about implicit bias, and makes important points about “in group” prejudice, as has Ken […]

  • Reflections Of The “Good” Judge | Simple Justice
    20 February 2017 at 7:45 am - Reply

    […] makes your head hurt. Judge Bennett has been arguing about the impact of implicit bias, the “in-group” effect of sentencing people who look like the judge. A more useful […]