Download this Paper Open PDF in Browser

Bias in the Shadows of Criminal Law: The Problem of Implicit White Favoritism

53 Pages Posted: 27 Jan 2014 Last revised: 17 Jun 2017

Robert J. Smith

Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute)

Justin D. Levinson

University of Hawaii - William S. Richardson School of Law

Zoe Robinson

DePaul University College of Law

Date Written: January 25, 2014

Abstract

Commentators idealize a racially fair criminal justice system as one without racial animus. But unjustified racial disparities would persist even if racial animus disappeared overnight. In this Article, we introduce the concept of implicit white favoritism into criminal law and procedure scholarship, and explain why preferential treatment of white Americans helps drive the stark disparities that define America’s criminal justice system. Scholarly efforts thus far have shone considerable light on how unconscious negative stereotyping of black Americans as hostile, violent, and prone to criminality occurs at critical points in the criminal justice process. We rotate the flashlight to reveal implicit favoritism, a rich and diverse set of automatic associations of positive stereotypes and attitudes with white Americans. White favoritism can operate in a range of powerful ways that can be distinguished from traditional race-focused examples: in the way, for example, white drivers are pulled over less often than unseen drivers or crimes against white victims are seen as more aggravating. Our account of implicit white favoritism both enriches existing accounts of how implicit racial bias corrupts the criminal justice system and provides explanations for disparities that implicit negative stereotyping explanations miss altogether.

Keywords: criminal law, criminal procedure, implicit racial bias, implicit white favoritism

Suggested Citation

Smith, Robert J. and Levinson, Justin D. and Robinson, Zoe, Bias in the Shadows of Criminal Law: The Problem of Implicit White Favoritism (January 25, 2014). Alabama Law Review, Vol. 66, 2015; UNC Legal Studies Research Paper No. 2385415. Available at SSRN: https://ssrn.com/abstract=2385415 or http://dx.doi.org/10.2139/ssrn.2385415

Robert J. Smith (Contact Author)

Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute) ( email )

Cambridge, MA
United States

Justin D. Levinson

University of Hawaii - William S. Richardson School of Law ( email )

2515 Dole Street
Honolulu, HI 96822-2350
United States

Zoe Robinson

DePaul University College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States

Paper statistics

Downloads
415
Rank
57,923
Abstract Views
4,879