Systemic Implicit Bias

Abstract

Legal discourse on implicit bias has changed the way scholars and citizens think about race in the justice system. Ever-growing scholarship, much of it empirical, has identified, confronted, and sought to address how implicit bias operates in nearly every criminal justice context—especially in policing, prosecuting, judging, and juror decision-making. This focus on racially fraught legal processes, and the subsequent search to mitigate or eliminate the operations of implicit bias within each of them, has been an illuminating force not only for those who seek to expose the reality of a biased system, but also for those who recognize that the fairness-driven ideals of the American legal system are not being realized. Thus, it is not surprising that efforts designed to “deal with” implicit bias in the criminal justice system—whether through judicial trainings, jury instructions, or structural safeguards—have become increasingly popular.

Our aim here is to strengthen the existing model of implicit bias by proposing the addition of a new theoretical layer. It is not only processes and people that allow implicit bias to seep into the criminal justice system. We argue that a comprehensive understanding of implicit bias in the criminal justice system requires acknowledging that the theoretical underpinnings of the entire system may now be culturally and cognitively inseparable from implicit bias.