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Social Bias and the Judicial System

Inequality across races and genders is pervasive in American culture. Although the Equal Protection Clause of the United States Constitution guards against Americans being improperly relegated to a sub-class citizen, social bias continues to create disparities and hierarchies among our citizenry. Today, minority males face extreme discrimination from law enforcement and appallingly disproportionate sentences upon conviction. The troubling reality is that bigotry is very prevalent within the criminal justice system. Because bias is an ugly reality in law, Wasatch Defense Lawyers want you to understand the issues and prepare accordingly. We may not be able to change the criminal justice system overnight, but Wasatch Defense Lawyers can ensure our clients receive the fair and equal treatment they are due under the law.

Bias in America

Researchers have tried to explain why racism continues to be such a strong element in American society despite the various legal and cultural norms dictating racial and gender egalitarianism. Historically, European nations rationalized brutal acts of colonialism and human trafficking by depicting persons of color as sub-human. And while the Civil Rights Movement has done away with mainstream culturally normalized racism, the bigoted narrative of bygone eras continues to taint modern understandings of race.

The sociological and psychological research into “Implicit Bias” concludes that bigotry persists in the United States largely because discrimination commonly manifests as unconscious acceptance of stereotypes. Scholars contend that humans create boundaries around their intimate social groups (“ingroup”), and inevitably exclude others from that circle of familiarity (“outgroup”). And while researchers have found that all racial categories exhibit a strong predilection towards ingroup and outgroup creation, socially marginalized groups typically respond more favorably to individuals who belong to a more privileged class in the racial social-hierarchy— meaning that racial minorities favor whites, more than whites favor racial minorities. In sum, Implicit bias researchers believe people discriminate as an innate action associated with group creation. People are not bigoted because they are necessarily bad or ignorant; rather, people just tend to associate positively with those who look and act like them.

Another theory popular among the psycho-social literati is called “Social Dominance Theory.” Social dominance theorists suggest that human societies are innately organized into groups, and that those groups are, in turn, inevitably arranged into a hierarchy of dominate and subordinate groups. Powerful groups have the means to create social norms that preserve and advantage their group status. Whereas subordinate groups lack any such means to advance their position within the social hierarchy. Moreover, social dominance theorists also argue that powerful groups create “legitimizing myths” to justify the unequal distribution of resources and power. Under the Social Dominance Theory, bigotry persists because people intentionally generate favorable social environments for their group. Because resources are finite, when one group takes the lion’s share of wealth and opportunity, it inevitably creates scarcity among other groups.

Legal scholars and social scientists argue whether Implicit Bias or Social Dominance is the primary source of the strong racial and gender disparities exhibited by the criminal justice system. No matter the explanation of bias, all researchers agree that the phenomena is quite prevalent in the United States. The US has not entered a post-race or post-gender phase in society. Today, biases among police, prosecutors, judges, and jurors combine to impact the experiences of minority male defendants in profound ways.

Impact of Bias

While the United States has struggled to heal from its history of bigotry and oppression, certain bad behaviors by the government are still shockingly commonplace. For example, several incidents involving the killing of unarmed black men, including Michael Brown, John Crawford, and Eric Garner, occurred in 2014. Those incidents sparked debate as all the assailants were summarily acquitted without ever being charged. In almost all the aforementioned instances both media and academic commentators contended that race was a major factor in causing the police fear. In other words, racial stereotypes that depict minority men as dangerous, not any actual violent behavior, motivated the killings. Although facially discriminatory action by government officials violates the 14th Amendment of the Constitution, patterns of racial and gender discrimination continue to manifest as large disparities in sentencing on the basis of race, ethnicity, and gender.

The Sentencing Guidelines and Policy Statements of the Sentencing Reform Act (SRA of 1984 were intended to eliminate sentencing disparities based on race, gender, ethnicity, and income; however, broad sentencing disparities continue to persist among federal offenders. For example, over 90 percent of defendants convicted of possessing 5 grams of crack cocaine, a felony offense that carries a 5-year minimum prison sentence, are black. This contrasts sharply with the misdemeanor penalty imposed for powdered cocaine possession, a controlled substance that predominates primarily among white users. Research also concludes that departures from the federal sentencing guidelines account for approximately 55 percent of the black-white difference, and 70 percent of the male-female difference. Additionally, blacks and males were significantly less likely to receive state supervision in lieu of prison; less likely to receive a downward departure from the sentencing guidelines (“lighter sentence”); and exponentially more likely to receive an upward adjustment (“heavier sentence”). This results in large differences in the average sentence based on race, ethnicity, and gender. The average sentence for males is 278.4 percent greater than for females (51.5 versus 18.5 months). And the average sentence for minority offenders is 22.8 percent higher than their white counterparts.

Legality of Bias

Overt discrimination within the criminal justice system is illegal under contemporary American jurisprudence. The Conference of Chief Justices was established in 1988 and signaled a commitment to fairness and egalitarianism by the US Supreme Court. Today, twenty-seven state supreme courts similarly have established a task force to address racial bias, and thirty-nine state supreme courts have formed a task force to address gender bias. Most of the respective task forces have focused primarily on revising or amending their local rules governing the conduct of judges, lawyers, and court employees. Some states have adopted measures prohibiting judges from engaging in racially or sexually biased conduct while on the bench and also prohibit judges from holding office while maintaining membership with any discriminatory group or organization. The Rules of Professional Conduct likewise address discriminatory lawyer behaviors. And some states have even published extensive court-employee manuals in an attempt to curtail bias in the court’s administration. These rules and regulations are in addition to the Supreme Court precedent that dictates racial equality under the 14th Amendment of the US Constitution. In sum, race and gender discrimination is illegal. However, the specter of bias still haunts modern courts. This is because eliminating bias falls upon the shoulder of every citizen and court official. Only when everyone begins to treat all their fellow Americans with respect will we be able to dissolve the cancer of bias from the criminal justice system.

At Wasatch Defense Lawyers we are aware of the biased nature of the courts, and we will fight to ensure you receive fair process under the law! Contact Us for a FREE, No-Obligation Case Review. Call: 801-980-9965

Craig R. Chlarson