Race and Retribution: An Empirical Study of Implicit Bias and Punishment in America
UC Davis Law Review, Vol. 53, 2019
University of Hawai’i Richardson School of Law Research Paper No. 3516378
53 Pages Posted: 13 Jan 2020
Date Written: December 15, 2019
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: Suggested Citation