Subconscious Impact

L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 Minn. L. Rev. __ (forthcoming 2011), available at SSRN.

He was a widely respected leader in his class, courted by some of Washington DC’s top law firms. Though a student, he already had a book of potential business top sports lawyers salivated over, plus a post working in the Senate for the summer. He was the kind of student who listened carefully when others spoke rather than speak often, but when he did speak people listened because the insights were often illuminating.

On the roadways, however, he was just another black man, driving as carefully as possible because he was a black man on the freeway. He was stopped anyway for unknown reasons, ordered out of the car, frisked like a criminal on the side of the road, and waved on his way when the roving search yielded nothing. He wondered what recourse he had to realize the protection of the criminal procedure rights we were studying, the standards that say you cannot be stopped without reasonable articulable suspicion of a crime, that you cannot be frisked without reasonable articulable suspicion that you pose a danger to officers.

His account was immensely moving to me and his fellow students. He never allowed himself to show frustration or anger. He always broadcast careful grace and gravitas, even in this account. But you could feel it. In fact, we all felt frustrated and angry for him. How could this happen to him–to be demeaned in this way, to live with de facto differential rights?

A few months later, I was moderating a panel on race and the criminal justice system at the University of Washington and listening to another person with grace and gravitas speak. He was the kind of law enforcement officer I have had the privilege of working with before, who entered a very difficult field because he passionately wanted to be one of the good guys, there for you in your time of distress. He was describing how, for police officers who strive hard and genuinely believe they are dispensing evenhanded justice, it can be deeply frustrating to be besieged by frequent accusations that they and their professional comrades are racists, are biased, and are the ones responsible for the gross racial disparities in who is targeted and incarcerated in the criminal justice system. It makes them hunker down. It may even make some officers resentful rather than receptive when undergoing training about dealing with diversity and race because the training seems like just another accusation.

When you have worked and teach in the passionately polarized domain of criminal law and procedure, and have seen stark problems entrenched in part because good people from various vantages feel besieged and beset, it makes you yearn for ways we can understand each other. How can we work with each other, without hackles raised, so that we can do more than merely face off? The status quo, desperately in need of reform, is left entrenched for lack of consensus. And why do we keep doing this, despite knowing that something is deeply wrong in a system with severe racial disparities? Is averting our gaze and enduring hurt and accusations the best that law can do?

This is why I loved the rich and fascinating body of literature on implicit social cognition from the moment I read Charles R. Lawrence’s The Id, the Ego, and Equal Protection in Reva Siegel’s constitutional law class as a 1L law student. As Jerry Kang and Mahzarin Banaji, two leaders in the law and implicit bias literature explain, “[t]he science of implicit social cognition examines those mental processes that operate without conscious awareness or conscious control” that influence our evaluation of others. A host of studies have replicated the finding of strong implicit bias against outgroup members that may clash with our consciously avowed and desired beliefs. The law and implicit bias literature has burgeoned and the insights from social psychology have been immensely productive in legal scholarship and criminal justice scholarship.1

L. Song Richardson’s Arrest Efficiency and the Fourth Amendment is an excellent forthcoming article that applies the insights from the research on implicit bias to the Fourth Amendment legal regime and policing. I had the pleasure of hearing a fabulous talk based on the article by Song at the LatCrit Conference hosted at American University Washington College of Law in 2009 and am delighted that the article will be hitting the presses soon. The article begins with a puzzle when it comes to “arrest efficiency.” The available data on “hit rates”–the rate at which police find illegal contraband or other evidence in a stop and search–show either higher success rates in searches of whites or at least equal success rates between searches of whites and blacks. Yet data indicates that police target blacks at higher rates than whites for stops and frisks. Song’s article examines the phenomenon in the context of Terry stop and frisks on the street. In a future article she will examine the phenomenon in the context of traffic stops.

Song argues that part of the reason why police persist in higher rates of less efficient searches of blacks is because of implicit bias. Song masterfully marshals the research from the social psychology literature showing how the “stereotype of blacks, especially young men, as violent, hostile, aggressive, and dangerous” permeates social perception, often at the subconscious level, to the detriment of life opportunities and civil liberties. She explains that police would be more efficient and accurate when they stop whites because they then tend to base their suspicion on more accurate indicia of suspicious activity.

Song argues that Fourth Amendment doctrine and its traditional deference to police perception needs to take into consideration the large body of evidence on how implicit bias can skew perception even without explicit bias. She argues that courts should ask for better empirical support for police inferences about suspicious activity. Song also argues that to render stops more accurate courts should hold that race is irrelevant in justifying a Terry seizure.

Applying insights from the research on implicit social cognition to policing is salutary. For the officers who hunker down when faced with what feels like another accusation, I hope we can translate implicit bias research in a way that fosters receptivity toward understanding and ameliorating subconscious impact. Perhaps it may help to avoid the term bias, which could shut down the will to listen because it may sound like another personalized accusation. The power of implicit social cognition research is to depersonalize blame, showing how subconscious impact may be a cultural problem, and how people who genuinely believe themselves to be acting nobly may exert subconscious impact. As lawyers, particularly criminal lawyers, we are all too good at pointing fingers. But to progress, perhaps the better approach is to emerge from the posture of fierce polarization and defensiveness and find ways to more accurately see and understand each other.

 



  1. Gary Blasi, Advocacy Against the Stereotype: Lessons from Cognitive Social Psychology, 49 UCLA L. Rev. 1241; Joshua Correll, The Police Officer’s Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals, 83 J. Pers. & Soc. Psych. 1314 (2002); Scott W. Howe, The Futile Quest for Racial Neutrality in Capital Selection and the Eighth Amendment Argument for Abolition Based on Unconscious Racial Discrimination, 45 Wm. & Mary L. Rev. 2083 (2004); Sheri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 Cornell L. Rev. 1016 (1988); Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489 (2005); Cynthia Lee, The Gay Panic Defense, 42 U.C. Davis L. Rev. 471 (2008); Rory K. Little, What Federal Prosecutors Really Think: The Puzzle of Statistical Race Disparity Versus Specific Guilt, and the Specter of Timothy McVeigh, 53 DePaul L. Rev. 1591 (2004); Jeffrey J. Pokorak, Probing the Capital Prosecutor’s Perspective: Race of the Discretionary Actors, 83 Cornell L. Rev. 1811 (1998); Yoav Sapir, Neither Intent nor Impact: A Critique of the Racially Based Selective Prosecution Jurisprudence and a Reform Proposal, 19 Harv. BlackLetter L.J. 127 (2003). []