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Copyright (c) 2009 The University of Notre Dame
Notre Dame Law Review

ARTICLE: DOES UNCONSCIOUS RACIAL BIAS AFFECT TRIAL JUDGES?

March, 2009

NOTRE DAME LAW REVIEW

84 Notre Dame L. Rev. 1195

Author

Jeffrey J. Rachlinski,* Sheri Lynn Johnson,+ Andrew J. Wistrich++ and Chris Guthrie+++

Excerpt

Introduction

Justice is not blind.

Researchers have found that black defendants fare worse in court than do their white counterparts. In a study of bail-setting in Connecticut, for example, Ian Ayres and Joel Waldfogel found that judges set bail at amounts that were twenty-five percent higher for black defendants than for similarly situated white defendants. 1 In an analysis of judicial decisionmaking under the Sentencing Reform Act of 1984, David Mustard found that federal judges imposed sentences on black Americans that were twelve percent longer than those imposed on comparable white defendants. 2 Finally, research on capital punishment shows that "killers of White victims are more likely to be sentenced to death than are killers of Black victims" and that "Black defendants are more likely than White defendants" to receive the death penalty. 3

Understanding why racial disparities like these and others persist in the criminal justice system is vital. Only if we understand why black defendants fare less well than similarly situated white defendants can we determine how to address this deeply troubling problem.

Two potential sources of disparate treatment in court are explicit bias and implicit bias. 4 By explicit bias, we mean the kinds of bias that people knowingly - sometimes openly - embrace. Explicit bias exists and undoubtedly accounts for many of the racial disparities in the criminal justice system, but it is unlikely to be the sole culprit. Researchers have found a marked decline in explicit bias over time, even as disparities ...
 
 
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