Running Head: UNDERSTANDING AND COMBATING RACIAL INJUSTICES IN THE JUSTICE

SYSTEM
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Understanding and Combating Racial Injustices in the Justice System

Ashton M. Foley

South Lyon High School

December 2021
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Abstract

The goal of this paper is to examine the institutional racial biases in the modern justice system

and to also form a research-based solution to these issues. In the past few decades, there has been a

troubling amount of racially motivated decisions both in law enforcement and in the courtroom. Despite

the surge in media attention these incidents have received, these trends show no signs of slowing down.

During my research, I decided to focus on issues in policing and court decisions. I found that there is a

multitude of associated problems in these two specific areas of the justice system. From my research, I

found that Black, Indigenous, and people of color are being killed in police shootings at disproportionate

levels, which is often misrepresented because of a misinterpretation of statistics. Additionally, there

remains an underlying bias in court cases against people of color, mostly due to the unconscious minds of

the jury. Fortunately, these issues are solvable. Using new methods of law enforcement such as

procedurally just policing and educating jurors of their potential implicit biases, these prevalent problems

can be reduced and possibly eliminated. The research in this paper is designed to assess the existing racial

biases in our justice system and to propose a feasible solution to these issues.

Word Count: 213

Understanding and Combating Racial Injustices in the Justice System

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1526. The transatlantic slave trade begins as the first slave ship crosses the Atlantic Ocean. 1776.

The United States of America is freed from the grip of tyrannical Britain, while the average

African-American continues to feel the discrimination of our imperfect nation. 1861. The beginning of a

bloody, cold war fought over the morality of human enslavement. 1877. Jim Crow laws are established to

keep people of color segregated from Whites. These remain in effect for just short of a century. 2020.

George Floyd is brutally murdered by police officer Derek Chauvin while two nearby officers stand idly

by.

From the birth of the United States, the battle for racial equality has been the defining factor of

almost all of the nation’s major issues, both institutionally and culturally. In recent years, this systematic

racism has become most prevalent in our criminal justice system. Since the tragic shooting of innocent

civilian Amadou Diallo, racial bias in our police forces has been brought to the forefront of politics in the

U.S., sprouting protests and a call for reform. At the same time, our courts fail to adapt to the progressive

state of our society, and still allow for noticeable racial discrepancies at both a local and federal level. The

institutions that are supposed to stand for justice, equality, and freedom, fail to realize — or simply lack

care for — the negative implications of the inherent biases that slip through the cracks time and time

again. Even in a society as cognizant of racial disparities as our own, there remains an undeniable racial

bias in our justice system that results in unjustified deaths by police shootings and unfair rulings in the

court of law. In order to combat these injustices, we need to turn our attention towards new methods of

maintaining and upholding the law, including procedurally just policing and educating jurors on implicit

biases they may have.

Despite numerous efforts to eliminate racism in law enforcement, there still is a large bias that has

brought with it many unnecessary police shootings and killings. In an analysis of 5,367 police shootings

from a national database compiled and maintained by The Washington Post, the rates of armed Native

Americans shot were three times that of white people, Blacks were 2.6 times as likely, and Hispanics were

1.3 times as likely. In unarmed victims, black people were 3 times more likely to be killed in police

shootings and Hispanics were 1.45 times as likely (Belli, 2020, para. 4). Each of these statistics shows the
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drastic difference between races in high-risk encounters, and how momentary lapses of judgment (i.e.

racial bias) could be the deciding factor between life and death. In addition, a 2018 study published by the

University of Pennsylvania found that these higher rates of police killings could be contributing to mental

health issues in black communities, showing an additional 1.7 poor mental health days per

African-American every year, or 55 million in the entire black population (Belli, 2020, para. 7). In areas

where police shootings were more common, it seemed that black people were the most affected, both in

their communities and in their mental well-being. Further analysis shows that these differences may be

due to an implicit bias held by the officers behind the weapon:

Eberhardt, Goff, Purdie, and Davies (2004) demonstrated that police officers identify

crime-related objects more easily after seeing (subliminally) Black faces, that they pay more

attention to Black faces after activation of the concept of crime, and that both of these biases tend

to be greater when the faces are those that have been judged to be more representative of Black

Americans as a social group (Spencer,

Charbonneau, Glaser, 2016, p. 54).

In these situations, police officers are not acting on any sort of rational thought, but instead on their

unconscious intuition. The idea of a Black-American, coupled with a high-crime area and the possibility

of criminal activity, immediately heightens officers' awareness of weapons, and may lead to incorrect

decision-making within the few seconds they have to act. In Blink, author Malcolm Gladwell (2005)

elaborates on this idea of unconscious, snap-decision making even further, adding, “But Diallo is black,

and it’s late, and it’s the South Bronx, and time is being measured now in milliseconds, and under those

circumstances we know that wallets invariably look like guns” (p. 243). Gladwell highlights the immense

pressure of making decisions that are compacted into only a moment or two. In such scenarios, people

often revert back to their instincts, and when police officers have worked their entire time on the force in

an area where crime is common and the threat of guns is very real, these instincts can be deadly. The

actual cause of such large disparities in police shootings isn’t because of an officer’s conscious racist
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thoughts (in most cases), but because of their unconscious mind making a clouded judgment in a

high-intensity situation.

Aside from racial disparities within law enforcement, there is an overwhelming bias against

people of color in the place where justice for all should be the priority: The courtroom. The core problem

within the court system is that people are being judged by other people, who each harbor individual biases

based on their past experiences and stereotypes. Anona Su (2020), an author of the Hastings Women’s

Law Journal, argues that “jurors run the risk of improperly evaluating these individuals based on

stereotypes rather than taking in the whole picture of how they presented themselves at the stand” (p. 83).

This is particularly problematic because misjudgments by a jury in the court of law could translate to

years of wrongful imprisonment along with the lasting effects of being convicted of a felony. Figure 1

further shows these differences by comparing

the percentage of known exonerations of

African-Americans to the percentage of

African-Americans living in the U.S (Stephens,

n.d.). An exoneration is a situation where the

party found guilty was proven to be wrongfully

convicted, attesting to the failure of the jury to

correctly label defendants as guilty or not guilty.

What the figure shows is the black population,

which accounts for roughly 13% of the U.S. population, takes up nearly half of the exonerations in the

U.S. This suggests the jury is far more likely to wrongfully convict a defendant who is black than any

other race and highlights the significant bias that lies behind many trials in America. Even at the highest

level, in the United States Supreme Court, there is yet to be the necessary reform to properly address the

long-term institutional racism that has stood over the system since the birth of the country. In the Supreme

Court case Whren v. United States (1996), Michael Whren claimed that he and his accomplice, James

Lester Brown, were pretextually stopped in traffic based on their race, despite being found guilty of
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multiple counts of drug possession. The Supreme Court ruled in favor of the defendants, stating the

“officer’s motive” for a stop or arrest, even in cases based upon race, does not “invalidate objectively

justifiable behavior under the Fourth Amendment”(Katz, 2016, p. 928). According to Lewis Katz (2016),

a specialist in criminal law and the Fourth Amendment, “Whren helped pave the way for traffic stops

resulting in the death of black drivers that are causing conflict in our society today. I believe that we will

continue to face this problem until at least Whren is reversed” (p. 928). Make no mistake, Michael Whren

and James Brown were undoubtedly guilty of numerous felonies and illegal activities, but if the courts

continue to validate these unlawful and discriminatory methods used to identify potential criminals, many

more completely innocent citizens will be put in danger simply because of the color of their skin.

Despite the large waves of media and attention our justice system has received, many people still

lack awareness of the severity of these racial biases. In 2016, the New York Times published a paper

written by Harvard economist Roland Fryer, which claimed that racial bias wasn’t statistically present at

all in police shootings. Justin M. Feldman (2016), a Harvard graduate himself, immediately questioned

the validity of this statement. He found that “properly interpreted, the actual result from Fryer’s analysis

is that the racial disparity in arrest rates is larger than the racial disparity in police shootings. This is an

unsurprising finding, and proves neither a lack of bias nor a lack of systematic discrimination” (para. 7).

Feldman (2020), with the support of numerous other statisticians, disproved Fryer within a day of his

report, later stating, “It is a failure of journalism that the New York Times heavily promoted this study

without seeking critical perspectives from experts in the field” (para. 11). Although Feldman and other

experts were able to swiftly discern fact from fiction, the public easily accepted Fryer’s statistically

flawed analysis, which calls into question the state of public opinion in the modern age, particularly on

issues regarding racial bias. In addition, many more people believe that the judiciary system is already

completely void of unfair judgments. According to Su (2020), “Opponents to educating jurors on implicit

bias believe that it is the job of attorneys to control bias in the courtroom through the usage of peremptory

challenges,” however what they don’t realize is that “for attorneys to be effective at identifying implicit

bias they have to somehow be able to inquire into something the juror does not even realize they have” (p.
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85). Although it seems plausible to lay the position of identifying bias on the attorney, it becomes much

more difficult when considering that even the jurors themselves are unaware. Looking at it through this

lens, it becomes immediately obvious this method is an ineffective approach to a very harmful problem.

Understanding that our society neglects racial biases in our institutions is vital, however, useless

if no solid action is taken. For any good solution, it’s important to look at what has been done, why that

continues to fail, and what can be done with more effective results. Gladwell (2005) shows one of the

main issues in policing in high-intensity situations, stating, “An officer with a partner is no safer than an

officer on his own”... “With two officers, encounters with citizens are far more likely to end in an arrest or

an injury to whomever they are arresting” (p. 234). What Gladwell is arguing is a solution to the source of

unconscious racism. Officers who travel in pairs often fail to slow down the situation and think, and when

they do this, they begin to rely on their instinctual decisions. By removing these unconscious biases and

allowing officers to think slowly and independently, there should be a drastic reduction in the number of

violent encounters between police and people of color. According to Zara Abrams (2020), a science writer

who specializes in psychology, “A study in Seattle randomly assigned officers to receive training in

procedurally just policing, leading to a reduction in use of force of between 15% and 40%, depending on

the situation” (para. 15). Using this method of procedurally just policing, which is a method of law

enforcement in which transparency and fairness take precedence in the officer’s duties, psychologists

have found there is a significant reduction in the amount of force used in police-citizen interactions,

which speaks to the effectiveness of this training. By training officers to be open, respectful, and fair to

their citizens, they are better able to deescalate intense confrontations and rely on civilized means of

enforcing the law before resorting to more forceful methods. In a 2012 study conducted by Patricia

Devine, Patrick Forscher, Anthony Austin, and William Cox, participants were assessed on their implicit

racial biases before and after being educated about bias and trained in how to reduce them. The methods

implemented in this study included stereotype replacement (identifying responses that reflect stereotypes

and replacing them with unbiased responses), counter-stereotype imaging (imagining in detail

counter-stereotypic examples), and individuation (using specific information about targets in order to
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reduce dependence on stereotypes). They found a significant reduction of implicit bias in subjects who

received this intervention compared to those who didn’t (Spencer, Charbonneau, Glaser, 2016, p. 56).

This study shows that it is possible to alter implicit biases, an idea that runs contrary to common belief.

Because the most prominent cause of racial bias in policing is implicit bias, these methods of educating

and training could prove to be very effective at reducing bias in our police forces.

Along with new methods of policing, we can take actions to reduce racial bias in the criminal

justice system by changing the processes that allow for such discrimination in the courtroom. According

to Su (2020), “Several courts have addressed the issue of implicit bias by using expert witnesses to

educate jurors on the subject” which is designed “to remind jurors what unconscious bias is and how it

can relate to their decision-making duties in the case at hand”

(p. 87). Although this strategy has proven to be ineffective because the evidence these expert witnesses

provide is typically deemed irrelevant to the case, it shows that educating the jury on implicit bias has a

strong, positive impact on how they make their verdict. If we were to take away the formalities of law,

this method would undoubtedly be very effective in reducing bias in the jury. She then builds off of this

idea by highlighting the Western District Court of Washington, which designed a dual method approach to

combating racial inequalities, including an informational video and jury instruction of implicit bias. In the

video, they educate the jury on what implicit bias is, where it may be present, and why this type of bias is

so difficult to assess. They then combine this video with jury instruction after the trial, right before they

meet to determine the verdict (Su, 2020, p. 92-94). This allows the jurors ample opportunities before,

during, and after the trial to think about the implicit biases they might have. By building off of the

impractical, yet effective strategy of using experts witnesses to educate jurors, the officials behind the

Western District Court of Washington have constructed a blend of methodologies that proves to be a

promising solution to address the overwhelming bias presented in the jury. Moreover, for officials in both

state and federal courts, plausible solutions to end bias are being uncovered every day. The National

Center of State Courts (n.d.) suggests starting at the root of the problem:
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“Diversity training seminars can serve as a starting point from which court culture itself can

change. When respected court leadership actively supports the multiculturalism approach, those

egalitarian goals can influence others. Moreover, when an individual (e.g., new employee)

discovers that peers in the court community are more egalitarian, the individual’s beliefs become

less implicitly biased.” (p. 6)

Instead of tackling implicit racism head-on in a constant cycle of problem and solution, the NCSC

suggests cutting out the issue altogether. By changing the culture in which our judiciary system operates,

a system in which the judges and jurors are truly impartial — both explicitly and implicitly — will form.

In the modern age, the U.S. justice departments still struggle to resolve the institutional racial bias

that has long infected the system. Luckily, by implementing procedurally just policing, single-officer

patrols, and educating the jury and the judges on the significance of implicit bias, this bias can be reduced,

if not eliminated. Through these proposed solutions, we can bring about real-world change, and assist

many innocent citizens from being wrongfully judged or even killed on the basis of their skin color. For

nearly 500 years, since that first transatlantic slave ship set out for sail, humanity has struggled to equally

represent all people fairly. Now is the time to right the wrongs of our history. Now is the time for reform.

Now is the time for justice.

References

Abrams, Z. (2020, October 1). What works to reduce police brutality. American Psychological

Association, 51(7), p. 30. Retrieved from

https://www.apa.org/monitor/2020/10/cover-police-brutality

Addressing Implicit Bias in the Courts. (n.d.). In Helping Courts Address Implicit Bias. Retrieved

from

https://www.nccourts.gov/assets/inline-files/public-trust-12-15-15-IB_Summary_033012

.pdf?q_DMMIVv0v_eDJUa1ADxtw59Zt_svPgl

Belli, B. (2020, October 27). Racial disparity in police shootings unchanged over 5 years.

YaleNews. Retrieved from

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https://news.yale.edu/2020/10/27/racial-disparity-police-shootings-unchanged-over-5-years

Feldman, J. M. (2016, July 12). Roland Fryer is wrong: There is racial bias in shootings by police.

Retrieved from

https://scholar.harvard.edu/jfeldman/blog/roland-fryer-wrong-there-racial-bias-shootings-police

Gladwell, M. (2005). Blink. New York, NY: Back Bay Books/Little Brown and Company.

Katz, L. R. (2016). Whren at Twenty: Systemic Racial Bias and the Criminal Justice System.

Case Western Reserve Law Review, 66(4), 923-929.

Spencer, K. B., Charbonneau, A. K., & Glaser, J. (2016, October 1). Implicit Bias and Policing.

Retrieved from

https://gspp.berkeley.edu/assets/uploads/research/pdf/SpencerCharbonneauGlaser.

Compass.2016.pdf

Stephens, S. (n.d.). Race and Wrongful Convictions. In The National Registry of Exonerations.

Retrieved from

https://www.law.umich.edu/special/exoneration/Pages/Race-and-Wrongful-Convictions.aspx

Su, A. (2020). A Proposal to Properly Address Implicit Bias in the Jury. Hastings Women's Law

Journal, 31(1), 79-100.

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