58 Pages Posted: 29 Jun 2013
Date Written: 2013
This Article uses the Trayvon Martin shooting to examine the operation of implicit racial bias in cases involving self-defense claims. Judges and juries are often unaware that implicit racial bias can influence their perceptions of threat, danger, and suspicion in cases involving minority defendants and victims. Failure to recognize the effects of implicit racial bias is especially problematic in cases involving black male victims and claims of self-defense because such bias can make the defendant’s fear of the victim and his decision to use deadly force seem reasonable. The effects of implicit racial bias are particularly likely to operate under the radar screen in a society like ours that views itself as post-racial.
Recent social science research on race salience by Samuel Sommers and Phoebe Ellsworth suggests that individuals are more likely to overcome their implicit biases if race is made salient than if race is simply a background factor — known but not highlighted. Making race salient or calling attention to the relevance of race in a given situation encourages individuals to suppress what would otherwise be automatic, stereotypic congruent responses in favor of acting in a more egalitarian manner. In the Trayvon Martin case, race was made salient by the huge public outcry over the Sanford Police Department’s failure to arrest George Zimmerman and accusations of racial profiling, which received extensive media coverage. Most criminal cases, however, do not receive the kind of media attention received in the Trayvon Martin case. In most criminal cases involving a minority defendant or victim, race is a background factor but is not something either party tries to highlight. The parties may think race is not relevant, or they may fear that if they call attention to race, they will be accused of playing the race card. Race, however, often is relevant to questions about the reasonableness of fear and calling attention to race may be the best way to defuse the adverse effects of implicit racial bias.
Building on these insights, this Article suggests that in the run-of-the- mill case, when an individual claims he shot a young black male in self-defense, the police, the prosecutor, the judge, and the jury are likely to find reasonable the individual’s claim that he felt he was being threatened by the young black male unless mechanisms are in place to make the operation of racial stereotypes in the creation of fear salient. The Article concludes with some suggestions as to how prosecutors and defense attorneys concerned about the operation of implicit racial bias can make race salient in the criminal courtroom.
Keywords: race, post-racial, implicit bias, self-defense, race salience, racial profiling, racial bias
JEL Classification: K14
Suggested Citation: Suggested Citation
Lee, Cynthia, Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post-Racial Society (2013). 91 North Carolina Law Review, Forthcoming; GWU Legal Studies Research Paper No. 2013-97; GWU Law School Public Law Research Paper No. 2013-97. Available at SSRN: https://ssrn.com/abstract=2282686