Race and Retribution: An Empirical Study of Implicit Bias and Punishment in America

53 Pages Posted: 13 Jan 2020

See all articles by Justin D. Levinson

Justin D. Levinson

University of Hawaii at Manoa - William S. Richardson School of Law

Robert J. Smith

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

Koichi Hioki

Kobe University - Graduate School of Business Administration

Date Written: December 15, 2019

Abstract

Retribution stands at the forefront of America’s criminal justice system. Yet, as Justice Anthony Kennedy cautioned, retribution is also the motive for punishment that “most often can contradict the law’s own ends.” This Article proposes, and then tests empirically, the existence of a novel contradiction of retribution — the idea that race and retribution have become automatically and inextricably intertwined in the minds of Americans.

The study we present in this Article demonstrates that the core support for retribution’s use has been shaken by implicit racial bias. Our national empirical study, conducted with over 500 jury-eligible citizens, shows that race cannot be separated from the concept of retribution itself. The study finds, for example, that Americans automatically associate the concepts of payback and retribution with Black and the concepts of mercy and leniency with White. Furthermore, the study showed that the level of a person’s retribution-race implicit bias predicted how much they supported retribution as a desirable punishment rationale — the stronger the anti-Black implicit racial bias they held, the more likely they were to harbor retributivist views of criminal punishment.

Contextualized within the racial history of America’s criminal justice system, as well as the continued racial disparities in the criminal justice system, the results of our empirical study have wide-ranging implications for legislative enactments, constitutional challenges to harsh punishment practices, and even for the reduction of excessive force against civilians in the context of policing.

Keywords: implicit bias, retribution, criminal law, death penalty, death qualification, implicit racial bias, jury decision-making

JEL Classification: K14, K40, P37

Suggested Citation

Levinson, Justin D. and Smith, Robert J. and Hioki, Koichi, Race and Retribution: An Empirical Study of Implicit Bias and Punishment in America (December 15, 2019). UC Davis Law Review, Vol. 53, 2019, University of Hawai’i Richardson School of Law Research Paper No. 3516378, Available at SSRN: https://ssrn.com/abstract=3516378

Justin D. Levinson (Contact Author)

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

2515 Dole Street
Honolulu, HI 96822-2350
United States

Robert J. Smith

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

Cambridge, MA
United States

Koichi Hioki

Kobe University - Graduate School of Business Administration ( email )

3-7-2 Shimiyoshiyamate
Higashinada-ku
Kobe, Hyogo 658-0063, Hyogo 657-8501
Japan

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