By Paloma Wu, Legal Fellow, ACLU of Pennsylvania
At this American civil rights impasse, we are up against a powerful and dangerous fantasy: the delusion that our intention to be race neutral makes us so, and the delusion that our intention not to discriminate means we don’t. No longer are slur-hurling city officials, police-protected lynch mobs, and smoke-filled redlining rooms the most formidable force opposing equality in America. It is all of us.
A growing body of research on implicit racial bias shows that about 75% of whites and Asians demonstrate an implicit bias in favor of whites compared to blacks, and over 200 related published studies show that implicit bias influences judgment, decisions, and behavior. An onslaught of images, lore, and language continuously tie brown and black skin in with the negative. Implicit racial bias operates powerfully but in the background, at the unconscious level, impacting our judgment and shaping our decisions such that we often act contrary to our conscious intent to behave in a race neutral way. Most insidiously, our implicit racial bias calls the shots without us registering that it has. We reason away the race biased logic that formed the basis of our decision, and we cleave to the far more flattering race-blind version of ourselves that we deeply personally identify with.
Since taking the well-validated Implicit Association Tests (“IATs”), I cannot claim to be more sturdily built. I am ashamed, but not surprised, to learn that I strongly associated black people with having weapons on the Weapons-Harmless Objects IAT, and that was just the beginning. Despite who I am, what I have done with my life, who I intend to be, and that I am neither white nor male, I am a petri dish of implicit racial and gender bias. Sharing my corner of shame: most of the eight million IAT takers, including Malcom Gladwell. Gladwell, who is half black, deftly explained in his bestselling book, “Blink,” that his “moderate automatic preference for whites” on the IAT left him “feeling creepy.” For others, the revelation of racial bias is embarrassing, deeply humbling, and disturbing.
After you take a few IATs, consider this:
- White Americans, on average, vastly overestimate the criminality of blacks.
- Many Americans incorrectly believe that black Americans use more drugs than whites: five times as many white than black people use drugs in this country, but black Americans are sent to prison for drug offenses at 10 times the rate as white Americans.
- “Shooter bias” studies show that black and white shooters both show bias against blacks in both response times and errors, meaning we will shoot black people more often and faster than we will whites.
- In shooter bias studies, we even pick up the pace if first shown a negative media article about a black perpetrator of a crime.
- Americans of all races more often see blacks as perpetrators and whites as victims; in one study, 70% of viewers of a crime story who falsely recalled seeing a picture of the perpetrator believed that perpetrator had been a black man.
Then consider how a blazing color line separates blacks and whites in crime and punishment:
- We start punishing black Americans more harshly based on race alone at least as early as preschool.
- Blacks and Latinos nationwide are less likely to be found with contraband or committing a criminal act, but we stop, search, arrest, and imprison them at rates higher than others.
- A black person convicted of a nonviolent drug offense can expect to receive the same sentence as a white person convicted of a violent crime.
- Black Americans face more severe charges by prosecutors and receive harsher bail decisions, based on race alone.
- NYPD officers select blacks and Latinos about 85% of the time for causeless stop-and-frisk searches—even though police find nothing in nearly 9 out of 10 of such searches.
- Our sentencing laws inexplicably more harshly punish drugs common to black communities.
- We arrest blacks at a rate 10 times higher than we arrest non-black people—mostly for petty victimless crimes—like Eric Garner’s fatal call to sell “loosies.”
A select few departments are trying to incorporate racial bias training to curb the tide, but the tide is nearly as powerful as our fantasy that it does not exist. The common refrain of police officers, elected officials, district attorneys, and policy makers with skin in this game is not “We Shall Overcome,” but rather—“We Did Not Intend.” But our knowledge about implicit racial bias in this era of political correctness renders the intent issue moot. Equal protection questions can only be addressed through data and analysis—do our laws in fact discriminate and are they in fact discriminatorily enforced. There is no silver bullet, but it is a necessary step, along with our acceptance of implicit racial bias as the norm: the unintentional constant that we must build in to any algorithm we use to formulate a next step—if we want it to be forward.
Also, feel free to sing along to this Avenue Q song, for a boost with the acceptance part…
(Stay tuned for Part 2 of this post: “The Effects of Implicit Racial Bias in Law Enforcement and Lessons from the Era of Anti-Lynching Legislation.”)
This post is part of a series in honor of Black History Month.
Paloma Wu joined the ACLU as an awardee of the 2014 Simpson Thacher & Bartlett LLP Public Service Fellowship. As a Simpson litigation associate, Paloma worked on antitrust, securities, and intellectual property matters, and she represented clients in successful prisoner civil rights (Pogue v. Diep) and asylum cases.