The Implicit Situation of Criminal Justice

Robert Smith, Charles Ogletree, and Johanna Wald hare recently posted a synopsis of their chapter, titled “Coloring Punishment: Implicit Social Cognition and Criminal Justice” (in Justin D. Levinson and Robert J. Smith (eds), Implicit Racial Bias Across the Law, 2012) on SSRN.  Here’s the synopsis:

The United States has become the world’s leader in incarceration. The size and pervasiveness of the criminal justice regime have no parallel in history. One in 100 citizens are locked away in prisons and jails – a figure that reflects a tenfold expansion in the corrections population in less than four decades. If we count those individuals who are currently on probation or parole, more than 7 million men and women are under legal supervision – a number equal to the population of Israel. This system of mass incarceration – which includes policing, corrections, and the courts – employs 2.2 million Americans – which exceeds the 1.7 million Americans employed in higher education and the 650,000 employed by the system of public welfare. At the turn of the millennium, approximately 1.5 million children had at least one parent in jail or prison, and 10 million have had a parent in jail at some time during their lives.

Racial disparities are a defining feature of this regime. One in eight black males between the ages of 20–29 are in prison or jail on any given day, as compared with 1 in 59 white males of the same age. At the beginning of the new millennium black males had almost a 1 in 3 chance of serving time in prison, as compared with 3 in 50 for white males. The Leadership Conference on Civil Rights has suggested that current criminal justice policies and practices “threaten to render irrelevant fifty years of hard-fought civil rights progress.”

There are varied explanations for these disparities. Most analyses point to a constellation of complex and interrelated structural and institutional factors that include poverty, high rates of joblessness, low levels of education, and the clustering of blacks and Latinos in concentrated urban areas that are more heavily policed than predominantly white suburban and rural areas. In this chapter, we put forth a complementary analysis, one intended to fill in gaps that we consider to be missing from these structural analyses. The ongoing racial disparities evidenced in every phase of the criminal justice system can be at least partly explained by the levels of implicit racial bias held by key actors in the system. Although we cannot yet offer “the smoking gun” that indisputably links the presence of implicit bias among decision-makers to harsher criminal sanctions for black Americans, our hypothesis is backed by a robust and fast-growing literature that has developed over the past decade. This scholarship demonstrates conclusively that Americans (whites and people of color alike) possess negative implicit biases against black citizens. These implicit race biases are held by liberals and conservatives; by young people and old; and by residents on the East Coast, the West Coast, the South, and the Midwest. They often coexist, unknowingly by the holder, alongside more overtly egalitarian views. What makes them so important in any discussion about race and the law is that these implicit biases frequently determine our actions and sway our decisions. In the criminal justice context, these biases lead, for example, to more arrests and harsher sentences for blacks than for whites who commit similar offenses.

It is vital to understand and document more fully how and where implicit biases operate within the criminal justice system. Doing so will enable us to develop policies, practices, and strategies aimed at identifying and reducing their effects. In this chapter, we offer specific illustrations of how implicit racial bias influences the actions of key decision-makers at various phases of our criminal justice system. This chapter is not intended to be a comprehensive examination of the role of implicit bias within the criminal justice system; rather its objective is to match the literature on implicit bias with actual examples of its “real-world” effects. From the formulation of criminal justice policy, to the decision to target citizens of a particular race, to the selection of criminal petit juries, the impact of implicit race bias on decisions about arrests, sentences, and severity of punishment is broad and deep.

This chapter proceeds in five parts. Part I sets the stage for this analysis, introducing key implicit racial bias studies that demonstrate that the face of crime in America is black. More specifically, it documents that black citizens are considered to be more dangerous, hostile, and prone to criminality and also less fully human than white citizens. Building on this foundation, Part II examines the role that implicit racial bias plays in the formulation of crime policy. Part III examines why implicit racial bias might drive disparate outcomes in the enforcement of criminal laws. This part examines the phenomenon in two distinct contexts: (1) the decision to punish a student in the school discipline context and (2) the use of unnecessary force in police–citizen encounters. Part IV uses the example of discriminatory jury selection to explore how implicit racial bias might contribute to the exclusion of black citizens from the criminal justice decision-making process. Part V concludes the chapter.

Related Situationist posts:

• Implicit Bias in the Law Conference – This Thursday
• Implicit Bias in the Courtroom
• Implicit Bias Symposium (with links to videos)
• Nancy Gertner on The Situation of Dispositionist Criminal Sentencing
• Why Race May Influence Us Even When We “Know” It Doesn’t
• Jennifer Eberhardt’s “Policing Racial Bias” – Video
• A Situationist Considers the Implications of Simpson Sentencing
• Guilt and Racial Prejudice
• Perceptions of Racial Divide
• The Racial Situation of Criminal Juries and the Consequences
• The Situation of Capital Punishment – Abstract
• The Situation of Death Row
• Why We Punish
• Black History is Now
• Jena 6 – Part II – Part I
• The Criminals that Other Criminals Punish
• Intuitions of Punishment?
• The Situation of Perceived Intentionality
• The Blame Frame – Abstract
• Black History is Now
• Guilt and Racial Prejudice
• The Situation of Blaming Rihanna
• The Situation of Punishment (and Forgiveness)
• The Situation of Punishment
  

Race and Dehumanization

I was very sorry to miss the Implicit Racial Bias Across the Law Book Launch Conference yesterday.  It’s rare for such a great set of law and mind sciences speakers to assemble in one spot and the topic continues to be of great importance for all those committed to ironing out injustice in our legal system.  But stuck in Philly, I did manage to “participate” vicariously . . . or, perhaps, more accurately: while doing some background research for some experiments that I am running with Penn’s Geoff Goodwin, I came across an article that I had overlooked a few years back that is of certain interest to all those who study law and race.

The article, Not Yet Human: Implicit Knowledge, Historical Dehumanization, and Contemporary Consequences, offers a fascinating investigation of the mental association between Blacks and apes and its devastating consequences.  As the authors (Phillip Atiba Goff, Jennifer L. Eberhardt, Melissa J. Williams, and Matthew Christian Jackson) explain,

Historical representations explicitly depicting Blacks as apelike have largely disappeared in the United States, yet a mental association between Blacks and apes remains. Here, the authors demonstrate that U.S. citizens implicitly associate Blacks and apes. In a series of laboratory studies, the authors reveal how this association influences study participants’ basic cognitive processes and significantly alters their judgments in criminal justice contexts. Specifically, this Black–ape association alters visual perception and attention, and it increases endorsement of violence against Black suspects. In an archival study of actual criminal cases, the authors show that news articles written about Blacks who are convicted of capital crimes are more likely to contain ape-relevant language than news articles written about White convicts.  Moreover, those who are implicitly portrayed as more apelike in these articles are more likely to be executed by the state than those who are not. The authors argue that examining the subtle persistence of specific historical representations such as these may not only enhance contemporary research on dehumanization, stereotyping, and implicit processes but also highlight common forms of discrimination that previously have gone unrecognized.

Check out the whole article here.

Related Situationist posts:

• Why Race May Influence Us Even When We “Know” It Doesn’t
• Perceptions of Racial Divide
• Black History is Now
• Jennifer Eberhardt’s “Policing Racial Bias” – Video
• The Situation of Presidential Death Threats
• The Situation of the Obama Presidency and Race Perceptions
• Racial Attitudes in the Presidential Race
• Black History is Now

The Racial Situation of 2012 Election

From University of Washington Newswire:

After the 2008 election of President Barack Obama, many proclaimed that the country had entered a post-racial era in which race was no longer an issue. However, a new large-scale study shows that racial attitudes have already played a substantial role in 2012, during the Republican primaries. They may play an even larger role in this year’s presidential election.

The study, led by psychologists at the University of Washington, shows that between January and April 2012 eligible voters who favored whites over blacks – either consciously or unconsciously – also favored Republican candidates relative to Barack Obama.

“People were saying that with Obama’s election race became a dead issue, but that’s not at all the case,” said lead investigator Anthony Greenwald, a UW psychology professor.

The study’s findings mean that many white and non-white voters, even those who don’t believe they tend to favor whites over blacks, might vote against Obama because of his race. These voters could cite the economy or other reasons, but a contributing cause could nevertheless be their conscious or unconscious racial attitudes.

“Our findings may indicate that many of those who expressed egalitarian attitudes by voting for Obama in 2008 and credited themselves with having ‘done the right thing’ then are now letting other considerations prevail,” said collaborator Mahzarin Banaji, a psychology professor at Harvard University.

In the study, a majority of white eligible voters showed a pattern labeled “automatic white preference” on a widely used measure of unconscious race bias. Previous studies indicate that close to 75 percent of white Americans show this implicit bias.

In a study done just prior to the 2008 presidential election, Greenwald and colleagues found that race attitudes played a role in predicting votes for the Republican candidate John McCain.

The 2012 data, collected from nearly 15,000 voters, show that race was again a significant factor in candidate preferences.

In an online survey, Greenwald asked survey-takers about their political beliefs, how “warmly” they felt toward black and white people, and which presidential contender they preferred. Because the survey was conducted in the first four months of 2012, it included the five main Republican hopefuls – Herman Cain, Newt Gingrich, Ron Paul, Mitt Romney and Rick Santorum – as well as Obama.

Greenwald also measured unconscious race attitude using the Implicit Association Test, a tool he developed more than a decade ago to gauge thoughts that people don’t realize they have. Different variations of the test measure implicit attitudes about race, gender, sexuality, ethnicities and other topics.

Greenwald found that favoritism for Republican candidates was predicted by respondents’ racial attitudes, both their self-reported views and their implicit biases measured by the IAT. Greenwald emphasized that the study’s finding that some candidates are more attractive to voters with pro-white racial attitudes does not mean that those candidates are racist.

“The study’s findings raise an interesting question: After nearly four years of having an African-American president in the White House, why do race attitudes continue to have a role in electoral politics?” Greenwald said.

He suspects that Obama’s power as president in 2012, compared with his lesser status as candidate in 2008, may have “brought out race-based antagonism that had less reason to be activated in 2008.”

Another possibility is that Republican candidates’ assertions that their most important goal is to remove Obama from the presidency “may have strong appeal to those who have latent racial motivation,” Greenwald said.

Greenwald and his research team will continue to collect people’s attitudes about the 2012 presidential candidates as part of their Decision 2012 IAT study. Now that Mitt Romney has emerged as the presumptive Republican nominee, the researchers are modifying their survey to focus on voters’ comparisons of Romney with Obama.

They plan to post summaries of the data each month until the November election. Anyone can take the test online: https://implicit.harvard.edu/implicit/demo/featuredtask.html

More.

Related Situationist posts:

• The Situation of the Voting Booth
• The Informational Situation of Voters
• Reporting Social Facts vs. Pining for Jim Crow: No Comparison Between Reid and Lott
• Racial Attitudes in the Presidential Race
• The Situation of Pollworkers and Voting Booths – Abstract
• The Racial Situation of Voting
• The Interior Situation of Undecided Voters
• On Being a Mindful Voter
• Implicit Associations in the 2008 Presidential Election
• The Situation of Political Animals
  
• Your Brain on Politics.

Homophobia = Self-phobia?

From University of Rochester:

Homophobia is more pronounced in individuals with an unacknowledged attraction to the same sex and who grew up with authoritarian parents who forbade such desires, a series of psychology studies demonstrates.

The study is the first to document the role that both parenting and sexual orientation play in the formation of intense and visceral fear of homosexuals, including self-reported homophobic attitudes, discriminatory bias, implicit hostility towards gays, and endorsement of anti-gay policies. Conducted by a team from the University of Rochester, the University of Essex, England, and the University of California in Santa Barbara, the research will be published the April issue of the Journal of Personality and Social Psychology.

“Individuals who identify as straight but in psychological tests show a strong attraction to the same sex may be threatened by gays and lesbians because homosexuals remind them of similar tendencies within themselves,” explains Netta Weinstein, a lecturer at the University of Essex and the study’s lead author.

“In many cases these are people who are at war with themselves and they are turning this internal conflict outward,” adds co-author Richard Ryan, professor of psychology at the University of Rochester who helped direct the research.

The paper includes four separate experiments, conducted in the United States and Germany, with each study involving an average of 160 college students. The findings provide new empirical evidence to support the psychoanalytic theory that the fear, anxiety, and aversion that some seemingly heterosexual people hold toward gays and lesbians can grow out of their own repressed same-sex desires, Ryan says. The results also support the more modern self-determination theory, developed by Ryan and Edward Deci at the University of Rochester, which links controlling parenting to poorer self-acceptance and difficulty valuing oneself unconditionally.

The findings may help to explain the personal dynamics behind some bullying and hate crimes directed at gays and lesbians, the authors argue. Media coverage of gay-related hate crimes suggests that attackers often perceive some level of threat from homosexuals. People in denial about their sexual orientation may lash out because gay targets threaten and bring this internal conflict to the forefront, the authors write.

The research also sheds light on high profile cases in which anti-gay public figures are caught engaging in same-sex sexual acts. The authors write that this dynamic of inner conflict may be reflected in such examples as Ted Haggard, the evangelical preacher who opposed gay marriage but was exposed in a gay sex scandal in 2006, and Glenn Murphy, Jr., former chairman of the Young Republican National Federation and vocal opponent of gay marriage, who was accused of sexually assaulting a 22-year-old man in 2007.

“We laugh at or make fun of such blatant hypocrisy, but in a real way, these people may often themselves be victims of repression and experience exaggerated feelings of threat,” says Ryan. “Homophobia is not a laughing matter. It can sometimes have tragic consequences,” Ryan says, pointing to cases such as the 1998 murder of Matthew Shepard or the 2011 shooting of Larry King.

To explore participants’ explicit and implicit sexual attraction, the researchers measured the discrepancies between what people say about their sexual orientation and how they react during a split-second timed task. Students were shown words and pictures on a computer screen and asked to put these in “gay” or “straight” categories. Before each of the 50 trials, participants were subliminally primed with either the word “me” or “others” flashed on the screen for 35 milliseconds. They were then shown the words “gay,” “straight,” “homosexual,” and “heterosexual” as well as pictures of straight and gay couples, and the computer tracked precisely their response times. A faster association of “me” with “gay” and a slower association of “me” with “straight” indicated an implicit gay orientation.

A second experiment, in which subjects were free to browse same-sex or opposite-sex photos, provided an additional measure of implicit sexual attraction.

Through a series of questionnaires, participants also reported on the type of parenting they experienced growing up, from authoritarian to democratic. Students were asked to agree or disagree with statements like: “I felt controlled and pressured in certain ways,” and “I felt free to be who I am.” For gauging the level of homophobia in a household, subjects responded to items like: “It would be upsetting for my mom to find out she was alone with a lesbian” or “My dad avoids gay men whenever possible.”

Finally, the researcher measured participants’ level of homophobia – both overt, as expressed in questionnaires on social policy and beliefs, and implicit, as revealed in word-completion tasks. In the latter, students wrote down the first three words that came to mind, for example for the prompt “k i _ _”. The study tracked the increase in the amount of aggressive words elicited after subliminally priming subjects with the word “gay” for 35 milliseconds.

Across all the studies, participants with supportive and accepting parents were more in touch with their implicit sexual orientation, while participants from authoritarian homes revealed the most discrepancy between explicit and implicit attraction.

“In a predominately heterosexual society, ‘know thyself’ can be a challenge for many gay individuals. But in controlling and homophobic homes, embracing a minority sexual orientation can be terrifying,” explains Weinstein. These individuals risk losing the love and approval of their parents if they admit to same sex attractions, so many people deny or repress that part of themselves, she said.

In addition, participants who reported themselves to be more heterosexual than their performance on the reaction time task indicated were most likely to react with hostility to gay others, the studies showed. That incongruence between implicit and explicit measures of sexual orientation predicted a variety of homophobic behaviors, including self-reported anti-gay attitudes, implicit hostility towards gays, endorsement of anti-gay policies, and discriminatory bias such as the assignment of harsher punishments for homosexuals, the authors conclude.

“This study shows that if you are feeling that kind of visceral reaction to an out-group, ask yourself, ‘Why?'” says Ryan. “Those intense emotions should serve as a call to self-reflection.”

The study had several limitations, the authors write. All participants were college students, so it may be helpful in future research to test these effects in younger adolescents still living at home and in older adults who have had more time to establish lives independent of their parents and to look at attitudes as they change over time.

Other contributors to the paper include Cody DeHaan and Nicole Legate from the University of Rochester, Andrew Przybylski from the University of Essex, and William Ryan from the University of California in Santa Barbara.

Related Situationist posts:

• The Connection Between Homophobia and Homosexual Arousal
• Dr. Robert Trivers at Harvard Law – Thursday
• The Color of Sex Appeal
• Your Brain and Morality
• Memory Biases as Source of Prejudice
• David Vitter, Eliot Spitzer, John Edwards, Jon Ensign, Mark Sanford, Chris Lee, and Now Arnold Schwarzenegger and Anthony Weiner: The Disposition Is Weaker than the Situation
• The Situation of Narcissism in PoliticsThe Situation of Temptation

The Situation of the Voting Booth

Stanford University Press Release (2008):

What would you say influenced your voting decisions in the most recent local or national election? Political preferences? A candidate’s stance on a particular issue? The repercussions of a proposition on your economic well-being? All these “rational” factors influence voting, and peoples’ ability to vote, based on what is best for them, is a hallmark of the democratic process.

But Stanford Graduate School of Business researchers, doctoral graduates Jonah Berger and Marc Meredith, and S. Christian Wheeler, associate professor of marketing, conclude that a much more subtle and arbitrary factor may also play a role—the particular type of polling location in which you happen to vote.

It’s hard to imagine that something as innocuous as polling location (e.g., school, church, or fire station) might actually influence voting behavior, but the Stanford researchers have discovered just that. In fact, Wheeler says “the influence of polling location on voting found in our research would be more than enough to change the outcome of a close election.” And, as seen in the neck-to-neck 2000 presidential election where Al Gore ultimately lost to George W. Bush after months of vote counting in Florida, election biases such as polling location could play a significant role in the 2008 presidential election. Even at the proposition level, “Voting at a school could increase support for school spending or voting at a church could decrease support for stem cell initiatives,” says Wheeler.

Why might something like polling location influence voting behavior? “Environmental cues, such as objects or places, can activate related constructs within individuals and influence the way they behave,” says Berger. now an assistant professor of marketing at the Wharton school. “Voting in a school, for example, could activate the part of a person’s identity that cares about kids, or norms about taking care of the community. Similarly, voting in a church could activate norms of following church doctrine. Such effects may even occur outside an individual’s awareness.”

Using data from Arizona’s 2000 general election, Berger, Meredith, a visiting lecturer at MIT, and Wheeler discovered that people who voted in schools were more likely to support raising the state sales tax to fund education. The researchers focused on Proposition 301, which proposed raising the state sales tax from 5.0 percent to 5.6 percent to increase education spending. What they found was that voters were more likely to support this initiative if they voted in a school versus other types of polling locations (55.0 percent versus 53.09 percent).

This effect persisted even when the researchers controlled for—or removed the possibility of—other factors such as:

Where voters lived. People who have kids may be pro-education and more likely to live near, and hence vote at, schools; Political views. Those who voted for Gore or positively on other propositions; and Demographics including age, sex, etc.

In regards to the first control, for example, people were still more likely to support Proposition 301 if they had voted in schools than if they had voted in places that were not schools but had schools nearby. No matter how they cut and spliced the data, the researchers found that voters in schools were more likely to support Proposition 301.

“We want factors like political views—whether someone thinks a candidate is going to make our country a better place—to sway elections,” said Berger. “But in forming election policy, we also want to make sure that arbitrary factors such as polling location don’t ultimately influence voting behaviors.”

To further test their hypothesis, the researchers even conducted the same analysis for the other 13 propositions on the Arizona ballot. They reasoned that if voters who cast their ballots in schools were more likely to vote positively for other unrelated propositions on wildlife or property taxes, for example, then the researchers would know that their model was not adequately accounting for some other factor beyond polling location, and that something such as voting preferences was having an effect. But such additional testing only supported the researchers’ hypotheses further.

The researchers also followed up with a lab experiment that allowed for random assignment of voters to pictures of different voting environments that the researchers thought might influence voting behavior. Participants were shown 10 images from well-maintained schools (e.g. lockers, classrooms) or churches (e.g. pews, alters), plus five additional filler images of generic buildings. A control group was shown images of generic buildings.

The participants then voted on a number of initiatives including California’s 2004 stem cell funding initiative, Arizona’s education initiative, and several others. Initiative wording was taken right from each state’s legislative council documents. As predicted by Berger, Meredith, and Wheeler: Environmental cues contained in the photos influenced voting.

Results from the second study showed that participants were less likely to support the stem cell initiative if they were shown church images than if they were shown school images or a generic photo of a building. The subjects also were more likely to support the education initiative if they were shown school images versus church or generic building images. The results further demonstrated that environmental cues present in different polling locations can influence voting outcomes, even when voters are randomly assigned to different environmental cue conditions.

“What our research suggests is that it might be useful to further investigate influences such as polling location to better understand how such factors affect different types of voting situations. From a policy perspective, the hope is that a voting location assignment could be less arbitrary and more determined in order to avoid undue biases in the future,” says Wheeler.

(pdf here.)

From USA Today (2012):

University of Maine psychology professor Jordan LaBouff and co-author Wade Rowatt, Ph.D., associate professor of psychology and neuroscience at Baylor, have a new paper out in the International Journal for the Psychology of Religion, finding that people expressed “cold” rather than “warm” attitudes toward gay men and women if they were asked their views while they were within sight of a church.

The research, conducted in England and the Netherlands with participants of 20 different nationalities, found that the unmentioned but evident visual cue of a church prompted people to express more conservative views on a range of issues — foreign aid, immigration, protection of the environment, separation of church and state, and more.

LaBouff said Thursday, “The effect is not specific to Christianity, but the sight of a church highlights our internal boundaries — who is like us and who is not like us. And we are more negative toward people who are not like us, whether we are religious or not.”

Related Situationist posts:

• The Informational Situation of Voters
• Reporting Social Facts vs. Pining for Jim Crow: No Comparison Between Reid and Lott
• Racial Attitudes in the Presidential Race
• The Situation of Pollworkers and Voting Booths – Abstract
• The Racial Situation of Voting
• The Interior Situation of Undecided Voters
• On Being a Mindful Voter
• Implicit Associations in the 2008 Presidential Election
• The Situation of Political Animals
  
• Your Brain on Politics.

Justice for Trayvon

For The Situationist, Sabreena El-Amin (Harvard Law School student and President of the Student Association for Law and Mind Sciences (SALMS)), has authored the following legal analysis of the Trayvon Martin shooting and situationist analysis of the “stand your ground” doctrine.  We are pleased to publish it and look forward to more contributions from Sabreena and other members of SALMS.

The Trayvon Martin incident is of particular importance to me: not only as a Black person, not only as a law student, not only as a mother, but as a big sister. My younger brother is currently attending school at Barry University in Miami, Florida. He, like myself, loves Arizona Ice Tea. We are also both big fans of Skittles, though we have a particular preference for the sour kind. Most importantly, we both wear hoodies. I am now more nervous than ever for my brother: a 19-year-old black man walking the streets of Miami with a camera. With laws like the “Stand your Ground” statute, vigilantes like Zimmerman are free to roam the streets in Florida, singling out young black men and killing them seemingly without repercussions.

My argument will focus on two main points: 1) Zimmerman should have been arrested as the prosecution will likely be able to meet their burden of proof that his action was not in accordance with the statute; and 2) the Stand Your Ground statute should be repealed because a) it encourages armed individuals to respond to situations violently and b) it sanctions the attack of Blacks.  I will begin the article by outlining the facts as I know them. I understand that there are several different fact patterns floating around and the story is being developed daily. My arguments will be based solely on the facts mapped out below. I will continue by discussing why the facts would support the prosecution’s case, if one were to be brought, focusing mainly on a piece by Governor Granholm of Michigan. I will then go on to discuss the “Stand Your Ground” statute based on two psychological studies that show the statute endorses more violence than is reasonably necessary.

Facts*

Trayvon Martin, a 17-year-old Black male, was walking to his father’s home in a gated community in Sanford, FL after returning from a 7-Eleven convenience store. En route, 28-year-old self-appointed Neighborhood Watchman, George Zimmerman, spotted Trayvon and telephoned police that there was a suspicious young black man walking around. Zimmerman informed the police that the young man looked like he was on drugs and appeared to be reaching for something in his waistband. Initially Zimmerman claimed that the young man was coming right at him, and then that Trayvon was getting away. Zimmerman complained that “they” always get away. Dispatcher informed Zimmerman that they did not need him to follow Trayvon and Zimmerman said okay. Several residents of the area called in shortly after Zimmerman’s call to report that they heard screaming. In some cases, callers reported a black male lying on the ground. Each caller also heard gun shots and heard the screaming stop. One caller reported that there was a man in a white shirt on top of someone lying on the ground.

Police collected Trayvon’s body, tested him for drugs, ran a background check, labeled him John Doe and placed him in the morgue where he would lie for over 24 hours before he was identified. Trayvon was unarmed and in fact only had a can of Arizona Ice Tea and a bag of Skittles. Zimmerman was questioned after the shooting, but never arrested. Zimmerman weighed 250 pounds and had a history of vigilantism.

Zimmerman claims that he shot Trayvon in self defense. Florida has a statute (Fla. Stat. § 776.013, also called the “Stand Your Ground” statute) which states (in relevant part):

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Zimmerman’s claims he was justified in his use of force based on this statute. It is not clear which clause Zimmerman’s defense is connected to.

Zimmerman has, since the incident, secured legal counsel. Zimmerman’s lawyer asserts that Zimmerman is not a racist and that he in fact mentors Blacks. His lawyer also stated that Zimmerman is currently in hiding, but has not fled the country. According to Zimmerman’s father, Zimmerman identifies as Hispanic.

Currently, Florida Governor Jed Bush does not believe Zimmerman’s actions are covered by the statute. There is a Department of Justice investigation in regards to the failure of the Sanford Police Department to arrest Zimmerman, President Obama has called for justice for Trayvon, and Sanford’s chief of police has stepped down. People across the country are expressing their distaste for the response to Trayvon’s murder and are, via protest, Facebook, articles, etc., calling for “Justice for Trayvon”.

Justice for Trayvon: Bringing Charges against Zimmerman

The “Stand Your Ground” statute essentially creates a presumption of self-defense in certain situations. Zimmerman has yet to be arrested because authorities do not believe there is enough evidence to rebut this presumption. I would like to focus this aspect of my piece on the following arguments: a) the facts of the case do not support a claim of self defense alleged pursuant to Fla. Stat. § 776.013(3) as Zimmerman appears to have been the attacker and not the victim, and b) the facts of the case do not support a claim of self defense pursuant to Fla. Stat. § 776.013(1) as Trayvon was unarmed and Zimmerman was likely acting unlawfully in his pursuit of Trayvon by misleading officials. Admittedly, only Zimmerman knows exactly what transpired during his altercation with Martin, and thus this argument may be moot after Zimmerman’s account becomes public.

Section 3 of the “Stand Your Ground” statute allows someone who is being attacked to respond with force and does not require them to first attempt to flee. Under a possible account of the facts, Zimmerman’s actions were self defense because he was attacked by Trayvon. Michigan Governor Jennifer M. Granholm wrote a piece on March 21, 2012 outlining several reasons why this account is unsupported by the facts as publicly known. In her piece Governor Granholm discusses five key pieces of evidence which refute Zimmerman’s claim:

• 1.The call from Zimmerman to law enforcement, and the officers telling Martin not to pursue. Zimmerman whispers what many have described as a racial slur under his breath.
• 2.There is a 911 call where you can hear a voice yelling for help and a firearm shot.
• 3.Trayvon’s father identified his voice on that 911 call on Al Sharpton’s Politics Nation program on MSNBC.
• 4.The account of the girlfriend, who says Trayvon told her by cellphone that he was being followed.
• 5.Trayvon was not armed and weighed between 75-100 pounds less than Zimmerman.

The evidence that we know of — the public evidence — establishes that Zimmerman was the pursuer, and not the victim.

In addition to this evidence, a 9-11 caller reported a man in a white shirt on top of a man lying on the ground. Another caller reported a man lying on the ground screaming “Help” and hearing gun shots go off before he got the chance to go to the man for help. Trayvon’s parents have identified this voice as their sons on the tape. Zimmerman, however, claims that this is his voice, but in connection with the other evidence (e.g., that he was the heavier of the two and that Trayvon was unarmed), this will likely be refuted. Based on the facts as alleged, the situation seems to have been initiated by Zimmerman. Even if Trayvon fought back after being pursued, his actions were justified based on the same statute that Zimmerman is currently hiding under.

Section 1 of the “Stand Your Ground” statute creates a presumption of self defense if a person is doing something unlawful and the person using force knows or reasonably believes that an unlawful act is occurring or about to occur. There has been some discussion at my law school that if Zimmerman asserts that he witnessed Trayvon about to break into someone’s home then Zimmerman may likely have a claim. I think this is unlikely for two reasons. First, Trayvon was unarmed and, based on all available evidence, innocently walking home from the convenience store. In order for the presumption in section 1 to be triggered, the attacked must have been in the process of committing certain crimes. There has been no evidence advanced indicating that Trayvon was participating in any crime. In fact the evidence points to Trayvon being engaged in innocent activity. Second, section (2)(c) asserts that this presumption is unavailable if the attacker is engaged in an unlawful activity at the time of the attack. As the 911 tape shows, Zimmerman was told not to follow Trayvon and said “okay.” This act can be seen as misleading police officers, who were likely told by dispatch that Zimmerman would be waiting for them to arrive before doing anything further. This act is likely in violation of Fla. Stat. § 843.06, which makes the “neglect or refusal to aid peace officers” “in the preservation of the peace” unlawful. Zimmerman’s false compliance with the order may have delayed the response time of the dispatched officers and been the reason why the police were unable to respond to Zimmerman’s call in time to save Trayvon’s life. Arguably, Zimmerman’s actions show  neglect to assist a peace officer and thus could qualify as unlawful acts that will exclude Zimmerman from the protection of Fla. Stat. § 776.013(1).

Justice for Blacks in Florida: Repeal the Stand Your Ground Statute

I would like to start this section by clarifying two points. First, Florida is not the only state to have a version of the “Stand Your Ground” statute. According to the above-mentioned piece by Gov. Granholm, who describes the statute as “part of the American Legislative Exchange Council (ALEC)’s cluster of pro-NRA bills that shot through legislatures in the past few years”, Florida is only one of 17 states to have a statute of this kind. Secondly, studies suggest that it is very possible for Zimmerman to be a rational, tolerant, even intelligent, person and still to have reacted in the manner that he did. Many people have labeled Zimmerman a racist and even called him sadistic for his response to an innocent young boy. Sadly, while this may be true for Zimmerman, it does not have to be. Due to the freedom that this law opens up for people to act upon their fears, which may be based on their predisposition to certain opinions, I believe this law should be repealed immediately. Every minute that this law and laws like it remain on the books another Black person’s life is in jeopardy.

Guns Breed Violence

In a piece entitled “Holding a Gun Influences You to Think Others are Armed,” David DiSalvo discusses psychological research that suggests Zimmerman may have reasonably believed that Trayvon was armed. As the title of the piece indicates, James Brockholm’s study, which will be published in the upcoming edition of Journal of Experimental Psychology, supports the idea that the possession of a gun will influence your opinion of whether those around you are armed. Brockholm’s conclusion is that a person’s ability to act upon certain impulses can “bias their recognition of objects… in dramatic ways.” In the study, individuals holding toy guns were more likely to believe a person had a gun than those who were holding a ball and who simply had guns in the room, but not in their hand. The article describes this as the “blending of perception and action representations” which cause those holding guns to believe others are too.

The statute and others like it (e.g. Wisconson’s Castle Doctrine under which a homeowner recently shot and killed 20-year-old, unarmed Bo Morrison, without being charged) is meant to provide a means for people to protect themselves when actually threatened. Based on Brockholm’s research, the statute is actually allowing people to act upon perceived threat that is automatically enhanced by their ability to act against the threat. This research supports the idea that individuals with guns are likely to act frequently because they can act, and not because there is an actually threat. In Bo’s case, his hands were both in the air. In Trayvon’s case, he was walking with a cell phone, an Arizona Ice Tea, and Skittles. Neither youth was armed. Neither was attempting to harm anyone. But two lives are lost, and importantly, two men have taken a life because they were able to, not because they had to. These statutes encourage violence by giving gun holders the right and encouraging them to “meet force with force” when the force they perceive will always be equal to the force they are capable of exerting themselves. These types of laws should be repealed immediately in order to prevent more innocent people from losing their lives and others from taking lives.

People Focus on Blacks when on the Look-out for Criminal Activity

Recently, I took a photograph with some of my Black classmates at Harvard Law School. We wore hoodies and held signs asking “Do we look suspicious?” Unfortunately, research completed by Jennifer Eberhardt, Valerie Purdie, Phillip Goff, and Paul Daves in 2005 concludes that for many people the answer to that question is yes. “Seeing Black: Race, Crime, and Visual Processing” asserts that stereotypes are bidirectional. The article states:

the mere presence of a Black man…can trigger thoughts that he is violent and criminal. Simply thinking about a Black person renders these concepts more accessible and can lead to misremember the Black person as the one holding the razor. Merely thinking about Blacks can lead people to evaluate ambiguous behavior as aggressive, to mis-categorize harmless objects as weapons, or to shoot quickly . . . .

The studies show that not only does thinking about Blacks make people think of crime, but thinking about crime makes people think of Blacks. These studies were intentionally done with both civilians and police officers. The officers were as susceptible to this association. Importantly, the study showed that when one is told to look out for crime, their visual attention focuses on Black faces. They may thus unconsciously avoid criminal activity of non-Black actors. For instance, when experimenters asked police officers “Who looks criminal?,” the officers choose Black faces more often than White faces. The study makes it clear that racial animus is not required. The association is automatic and is even sparked in Blacks and others minorities.

Based on this research, Zimmerman may have associated Trayvon with criminality without having any negative opinions of Blacks. As a neighborhood watchman put on guard to look out for crime, he was likely looking for Blacks. Zimmerman was attempting to crack down on several robberies that had occurred in his neighborhood, and the possibility of criminal activity was salient in his mind, when Trayvon walked innocently by. Zimmerman may have reasonably believed that Trayvon was about to engage in unlawful behavior, but this belief was based on stereotypes and not supported by what was actually occurring. Section 1 of the statute protects people who seek out criminals and prevent their crimes from being completed. As people often unconsciously associate African Americans with crime, they may seek out African Americans engaging in ambiguous behavior percieve it as criminal. Acting upon this perception, they may attack (as Zimmerman did), under the protective shield of the Stand Your Ground Statute, leading to the harm of either themselves or innocent individuals. Based on this research it is clear that the first section of the statute puts a target on Blacks.

Implications

The implications of the research that I have outlined in this section are that people who carry guns and seek out criminal activity will be searching for Blacks and will automatically associate ambiguous behavior with criminal activity. Laws like the “Stand Your Ground” statute give these individuals the right to act upon their perception and harm these Black people regardless of what they are doing. This means that Blacks in such situations will likely have no control over being shot or attacked. Even worse it means that individuals will be searching for Blacks and may unconsciously overlook true criminal activity in an attempt to find images that support their perception. We should not provide support for individuals to act upon irrational conclusions that are not supported by the circumstances. This does not mean that there should be no protection of individuals who respond reasonably to imminent danger, but we should require their perception to be supported by fact and not stereotype and thus require them to be able to connect their fear to something more than the person’s race. We should deem this on a case by case and remove the blanket approval of such behavior. People should be instructed to call police when observing unlawful behavior or to attempt to retreat when in fear of being attacked. Thus the statute should be repealed and self-defense should return to being a defense of murder, and not a presumption of innocence that must be rebutted.

Conclusion

What happened to Trayvon Martin is an all too familiar story to many Blacks. We are profiled regularly based on stereotypes that we have no control over. As many of us mourn Trayvon’s death and remember many of our other brothers and sisters who have fallen victim to racial stereotyping, there is a concurrent legal movement attempting to shed some hope on the issue by bringing charges against Zimmerman. This movement should also focus on repealing the Florida statute. Once these actions are taken, we will be one step closer to Justice for Trayvon.

*I would like to thank Anisha Queen, David Korn, James Smith, and Professor Jon Hanson for their assistance and inspiration with this piece.

** The facts have been compiled from the following articles:

• http://www.foxnews.com/us/2012/03/24/lawyer-advising-trayvons-killer-denies-racism-as-prosecutor-vows-were-going-to/
• http://www.craigboyce.com/w/2012/03/trayvon-martin-shooting-911-call/
• http://www.slate.com/articles/news_and_politics/crime/2012/03/why_george_zimmerman_trayvon_martin_s_killer_hasn_t_been_prosecuted_.html
• http://www.huffingtonpost.com/jennifer-m-granholm/5-reasons-zimmermans-stan_b_1371554.html

Related Situationist posts:

• New Research on the Dangers of Private Law Enforcement
• Race, Guns, and the Danger of Private Law Enforcement
• If Guns Don’t Kill People, Sometimes Gun-Saturated Situations Do
• The Psychology of Guns and Race
• Why Race May Influence Us Even When We “Know” It Doesn’t
• He’s a Banana-Eating Monkey, but I’m Not a Racist
• Jennifer Eberhardt’s “Policing Racial Bias” – Video
• A Situationist Considers the Implications of Simpson Sentencing
• The Situation of Handguns on Urban Streets-Abstract
• The Situation of First-Person Shooters
• Guilt and Racial Prejudice
• Perceptions of Racial Divide
• Banaji & Greenwald on Edge – Part IV

Image from Flickr.

Race, Guns, and the Danger of Private Law Enforcement

It is heartbreaking to read the details that are emerging concerning the killing of Trayvon Martin in Sanford, Florida.

Various theories have been advanced to explain how Trayvon, an unarmed African-American teenager, was shot in the chest by a neighborhood watch captain in a gated community.  Some have focused on the potential bad disposition of the shooter, while others have cast Trayvon as a potential aggressor.  But the most compelling explanation may relate to the impact of implicit racial bias.

Indeed, the tragedy of this case may ultimately come down to a toxic combination of negative stereotypes (linking blacks and crime) and a culture increasingly encouraging private law enforcement.

A little over a year ago, I wrote an article (Quick on the Draw: Implicit Bias and the Second Amendment) that takes up this precise topic.  Below is the abstract:

African Americans face a significant and menacing threat, but it is not the one that has preoccupied the press, pundits, and policy makers in the wake of several bigoted murders and a resurgent white supremacist movement. While hate crimes and hate groups demand continued vigilance, if we are truly to protect our minority citizens, we must shift our most urgent attention from neo-Nazis stockpiling weapons to the seemingly benign gun owners among us – our friends, family, and neighbors – who show no animus toward African Americans and who profess genuine commitments to equality.

s

Our commonsense narratives about racism and guns – centered on a conception of humans as autonomous, self-transparent, rational actors – are outdated and strongly contradicted by recent evidence from the mind sciences.

s

Advances in implicit social cognition reveal that most people carry biases against racial minorities beyond their conscious awareness. These biases affect critical behavior, including the actions of individuals performing shooting tasks. In simulations, Americans are faster and more accurate when firing on armed blacks than when firing on armed whites, and faster and more accurate in electing to hold their fire when confronting unarmed whites than when confronting unarmed blacks. Yet, studies suggest that people who carry implicit racial bias may be able to counteract its effects through training.

s

Given recent expansions in gun rights and gun ownership – and the hundreds of thousands, if not millions, of private citizens who already use firearms in self-defense each year – this is reason for serious concern. While police officers often receive substantial simulation training in the use of weapons that, in laboratory experiments, appears to help them control for implicit bias, members of the public who purchase guns are under no similar practice duties.

s

In addressing this grave danger, states and local governments should require ongoing training courses for all gun owners similar to other existing licensing regimes. Such an approach is unlikely to run into constitutional problems and is more politically tenable than alternative solutions.

If you’d like to read a free copy of the entire article, click here.

Related Situationist posts:

• If Guns Don’t Kill People, Sometimes Gun-Saturated Situations Do
• The Psychology of Guns and Race
• Why Race May Influence Us Even When We “Know” It Doesn’t
• He’s a Banana-Eating Monkey, but I’m Not a Racist
• Jennifer Eberhardt’s “Policing Racial Bias” – Video
• A Situationist Considers the Implications of Simpson Sentencing
• The Situation of Handguns on Urban Streets-Abstract
• The Situation of First-Person Shooters
• Guilt and Racial Prejudice
• Perceptions of Racial Divide
• Banaji & Greenwald on Edge – Part IV

Implicit Juror Bias

Anna Roberts posted her article, “(Re)Forming the Jury: Detection and Disinfection of Implicit Juror Bias” (Connecticut Law Review, Vol. 44, 2012) on SSRN.  Here is the abstract.

* * *

This Article investigates whether one of the most intractable problems in trial procedure can be ameliorated through the use of one of the most striking discoveries in social science. The intractable problem is selecting a fair jury. Current doctrine fails to address the fact that jurors harbor not only explicit, or conscious bias, but also implicit, or unconscious, bias. The discovery is the Implicit Association Test (“IAT”), an online test that aims to reveal implicit bias.

This Article conducts the first comparison of proposals that the IAT be used to address jury bias. They fall into two groups. The first group would use the IAT to “screen” potential jurors for implicit bias; the second group would use the IAT to educate jurors about implicit bias. These proposals merit deeper consideration. Implicit bias is pervasive, and affects crucial juror functions: evaluation of evidence, recall of facts, and judgments of guilt. Juries are generally told nothing about implicit bias. The judiciary has expressed concern about implicit juror bias, and sought help from the academy in addressing the problem.

I provide what the proposals lack: critique and context. I show that using the IAT to screen jurors is misguided. The educational project has merit, however, since implicit bias can be countered through knowledge of its existence and motivation to address it. To refine the project, I identify two vital issues that distinguish the proposals: when jurors should learn about implicit bias, and how they should learn.

On the issue of when, I argue that the education should begin while the jurors are still being oriented. Orientation is not only universal, but, as research into “priming” and “framing” has shown, a crucial period for the forming of first impressions. On the issue of how, I argue that those proposals that would include the jurors taking an IAT are superior to those that would simply instruct jurors on what the IAT shows. In an area fraught with denial, mere instruction would likely be dismissed as irrelevant. I use pedagogical theory to show that experiential learning about bias is more likely to be effective.

I bring when and how together, proposing a model that would include the use of the IAT as an experiential learning tool during orientation. It would harness the civic energy of jurors to an educational purpose, rather than letting it morph into boredom; by putting jurors in an active mindset, it would enhance their satisfaction with the process, and their ability to perform optimally. As for potential jurors who are never selected, their participation would honor the long-standing educational function of jury service.

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Download the article for free here.

Related Situationist posts:

• Juror Bias
  
• Unequal Juries
• What Are the Legal Implications of Implicit Biases?
• Race Effects on Ebay
• Jurors, Brain Imaging, and the Allure of Pretty Pictures
• A Situationist Considers the Implications of Simpson Sentencing
• The Racial Situation of Criminal Juries and the Consequences
• Unconscious Racial Attitudes
• The Situation of Capital Punishment – Abstract,
• Why We Punish,
• The Situation of Death Row, and
• Black History is Now.

The Roots of Racism in Rhesus Monkeys

From Big Think:

Laura Santos on why our prejudices may be deeply ingrained in our evolutionary development.

Related Situationist posts:

• 25 Mil­lion Years of Us vs. Them
• “The Endowment Effect in Chimpanzees – Abstract,”
• “Even monkeys know when they’re being treated unfairly,”
• “Monkey Fairness,”
• Felix Warneken at Harvard Law School
• The Embodied Situation of Power
• “The Situational Power of Appearance and Posture,
• “The Endowment Effect in Chimpanzees – Abstract,”
• “The Situation of Political Animals,” and
  
• Laurie Santos on the Evolutionary Situation of Cognitive Biases.

Implicit Gender Bias in Legal Profession

Justin Levinson and Danielle Young posted their excellent article, “Implicit Gender Bias in the Legal Profession: An Empirical Study” (Duke Journal of Gender Law & Policy, Vol. 18, No. 1, 2010) on SSRN.  Here’s the abstract.

* * *

In order to test the hypothesis that implicit gender bias drives the continued subordination of women in the legal profession, we designed and conducted an empirical study. The study tested whether law students hold implicit gender biases related to women in the legal profession, and further tested whether these implicit biases predict discriminatory decision-making. The results of the study were both concerning and hopeful. As predicted, we found that implicit biases were pervasive; a diverse group of both male and female law students implicitly associated judges with men, not women, and also associated women with the home and family. Yet the results of the remaining portions of the study offered hope. Participants were frequently able to resist their implicit biases and make decisions in gender neutral ways. Taken together, the results of the study highlight two conflicting sides of the ongoing gender debate: first, that the power of implicit gender biases persists, even in the next generation of lawyers; and second, that the emergence of a new generation of egalitarian law students may offer some hope for the future.

* * *

Download article for free.

Related Situationist posts:

• Unequal Juries
• What Are the Legal Implications of Implicit Biases?
• The Gendered Situation of Math, Humanities, and Romance
• Not Just Whistling Vivaldi
• “Women’s Situational Bind,”
• “The Nerdy, Gendered Situation of Computer Science.”
• “Social Psychologists Discuss Stereotype Threat,”
• “The Gendered Situation of Chess,”
• “The Situation of Gender-Science Stereotypes,”
• “The Situation of Gender and Science,”
• “Stereotype Threat and Performance,”
• “The Gendered Situation of Science & Math,”
• “Gender-Imbalanced Situation of Math, Science, and Engineering,”
• “Sex Differences in Math and Science,”
• “You Shouldn’t Stereotype Stereotypes,”
• “Women’s Situation in Economics,”
• “Your Group is Bad at Math,” and
• “Belonging.”

Anthony Greenwald on The Psychology of Blink

From ResearchChannel:

[Situationist friend] Dr. Anthony Greenwald, professor of psychology at the University of Washington, describes his research developing the method (described in Malcolm Gladwell’s Blink) that reveals unconscious thought patterns that most people would rather not possess. Learn about these mental contents, as Dr. Greenwald demonstrates the method and describes how these patterns affect our behavior.

From ResearchChannel:

In this program from the University of Washington psychology department, MacArthur awardee Dr. Lisa Cooper, professor at John Hopkins University School of Medicine, describes her research on how patient race influences patient-physician communication and physician clinical decision making. She also includes her efforts to design interventions to negate these undesired racial and ethnic health care disparities.

Related Situationist posts:

• The Implicit Situation of Love
• Implicit Associations on Oprah
• “The Interior Situation of Undecided Voters,”
• “Confronting the Backlash against Implicit Bias,”
• “The Interior Situation of Suicide,”
• “Implicit Associations on Oprah,”
• “MSNBC Report on Implicit Associations,”
• “Measuring Implicit Attitudes,”
• “Mispredicting Our Reactions to Racism,”
• “Banaji & Greenwald on Edge – Part IV,” and
• “Do You Implicitly Prefer Markets or Regulation?”

Shared Human Experiences

Matt Motyl and his co-authors recently posted their excellent article, titled “Subtle Priming of Shared Human Experiences Eliminates Threat-Induced Negativity Toward Arabs, Immigrants, and Peace-Making” on SSRN (forthcoming  (April 20, 2011). Journal of Experimental Social Psychology.

* * *

Many studies demonstrate that mortality salience can increase negativity toward out-groups but few have examined variables that mitigate this effect. The present research examined whether subtly priming people to think of human experiences shared by people from diverse cultures increases perceived similarity of members of different groups, which then reduces MS-induced negativity toward out-groups. In Study 1, exposure to pictures of people from diverse cultures engaged in common human activities non-significantly reversed the effect of MS on implicit anti-Arab prejudice. In Study 2, thinking about similarities between one’s own favorite childhood memories and those of people from other countries eliminated MS-induced explicit negative attitudes toward immigrants. In Study 3, thinking about similarities between one’s own painful childhood memories and those of people from other countries eliminated the MS-induced reduction in support for peace-making. Mediation analyzes suggest the effects were driven by perceived similarity of people across cultures. These findings suggest that priming widely shared human experiences can attenuate MS-induced inter-group conflict.

* * *

Download the article for free here.

Related Situationist posts:

• The Situation of Attiudes about Progress
• Think Progress or Die
• “Terror Management Theory Goes Mainstream” and
• “The Situation of Ideology – Part II.”

Unconscious Racial Attitudes

David Kairys posted his article, titled “Unconscious Racism” (forthcoming Temple Law Review, Vol. 83, 2011) on SSRN.  Here’s the abstract.

* * *

This article is the introduction to a law review symposium on unconscious racism and social science and statistical evidence of bias as bases for race discrimination claims, focusing concretely on discrimination in employment and housing. The article starts with an example of unconscious racism in the bail-setting court in Philadelphia. Two drunk-driving cases about a week apart were identical in all respects except the races of the defendants, but the judge, who was not an overt or self-perceived racist, showed empathy to the white drunk driver while his reaction to the black one was dominated by fear.

Unconscious racism specifically, and the biases and motivations of alleged discriminators in general, were not of much interest in civil rights law or litigation until the Supreme Court began, in the mid-1970s, to require specific proof of purposeful discrimination to make out a constitutional violation (less-demanding proof is required for certain statutory violations). The article presents a historical perspective on the development of perceptions of racial wrongdoing in law and in society generally, starting with the relatively recently accepted understanding that racism is wrong. About 50 or 60 year ago, racism on the part of government, private institutions and individuals became socially, morally and culturally wrong. Before that, racism in words and deeds was acceptable and not unusual, if not something like the norm.

However, deep-seated notions about race from slavery, Jim Crow, and segregation were still very much alive and persist today – notions of inferiority and superiority and racially attributed, stereotyped characteristics, like intelligence, perseverance, morality, tendencies to violence and sexual promiscuity. But in the legal realm and in society generally, we wound up focusing our attention almost exclusively on overt, explicit and formal inequality. Once they were banished, we declared a pre-mature victory in the struggle for racial equality. Explicitly racist and overtly segregationist measures were banned, and racial epithets became taboo. But we left in place the legacy of slavery and Jim Crow and segregation, and the remaining racism – the deep-seated, unconscious parts that do not just go away because a court declares explicit racism wrong. Progress was hindered further by a multi-faceted retrenchment by the courts. The adoption of the purposeful discrimination rule in the mid-1970s, which requires specific proof of a racial purpose or motive to establish a discrimination case, made it near impossible for minorities to win. The Supreme Court embraced a formal insensitivity to minority claims, even in circumstances that resemble the worst forms of the discrimination, segregation and disenfranchisement of African Americans that characterized the pre-civil rights past. Then a hypersensitive version of the purposeful discrimination rule was applied to invalidate good-faith affirmative and remedial action, by taking any consideration of race – even if done in good faith to open opportunities and eliminate discrimination – as sufficient proof of purposeful discrimination. Alongside and not unrelated to these legal developments, non-explicit forms of discrimination against African Americans and other minorities grew in number and significance, and became more easily non-explicit.

The use of social science and statistics to prove unconscious racism presents a possibility of dealing with at least some of these problems in the current context.

Download the article for free here.

Related Situationist posts:

• Preference, Principle, & Casuistry
• Responding to Subtle Racial Harassment
• Interview with Professor Eric Knowles
• Race and Implicit American-ness
• “Why Race May Influence Us Even When We “Know” It Doesn’t,”
• “What Are the Legal Implications of Implicit Biases?,”
• “Confronting the Backlash against Implicit Bias,” and
• “The Situation of Situation in Employment Discrimination Law – Abstract.”

The Situational Effects of Iqbal

Victor Quintanilla recently posted his paper, “Beyond Common Sense: A Social-Psychological Study of Iqbal’s Effect on Claims of Race Discrimination”  on SSRN.  Here’s the abstract.

* * *

This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social-psychological perspective, and empirically studies Iqbal’s disparate effect on claims of race discrimination.

In Twombly and then Iqbal, the Court recast Rule 8 into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been presented, when judging the plausibility of all claims, including claims of discrimination by members of stereotyped groups.

Decades of social-psychological research suggest that, when judges deliberate on the plausibility of discrimination claims without evidence based on “common sense,” intuitions, stereotypes and implicit associations will likely affect their judgment. This article draws on this science and performs an empirical study showing that Iqbal has significantly increased the dismissal rate of Black plaintiffs’ claims of race discrimination in the workplace.

A statistical analysis of 212 cases examined judicial decision making at the pleading stage for Black plaintiffs’ claims of race discrimination in the workplace. Three studies demonstrate that the underpinnings of Iqbal are unsound. Study 1 shows that the dismissal rate increased from 20.0% pre-Twombly to 54.6% under Iqbal for these claims. Study 2 shows that the dismissal rate increased from 32.0% to 67.35% under Iqbal for these claims when Black plaintiffs were pro se. And finally, Study 3 shows that White and Black judges are applying Iqbal differently. White judges dismiss these claims at a higher rate (57.4%) than Black judges (28.6%). Study 3 suggests that it is 2.0 times more likely that a White judge, compared to a Black judge, will dismiss these claims.

In short, Iqbal rests on an inaccurate theory of judgment and decision making. As Roscoe Pound once observed there are, “distinctions between law in the books and law in action, . . . between legal theory and judicial administration. . .” It is hoped that by introducing the science behind judgment and decision making, stereotypes, and implicit associations, and by studying human nature in law, we will broaden our knowledge of how Iqbal has affected claims of discrimination by members of stereotyped groups.

* * *

Download the paper for free here.

Related Situationist posts:

• The Rhetorical Situation of Law, and the Situation of Rhetoric
• “What Are the Legal Implications of Implicit Biases?,”
• “Confronting the Backlash against Implicit Bias,”
• “The Situation of Situation in Employment Discrimination Law – Abstract.”
• “Why Race May Influence Us Even When We “Know” It Doesn’t,”
• “Black History is Now,”
• “Jennifer Eberhardt’s “Policing Racial Bias” – Video,”
• “Perceptions of Racial Divide,” and
• “Banaji & Greenwald on Edge – Part IV.”

25 Mil­lion Years of Us vs. Them

From World News:

Like peo­ple, some of our mon­key cousins tend to take an “us ver­sus them” view of the world, a study has found. This sug­gests that the ten­den­cy for hu­man groups to clash may stem from a dis­tant ev­o­lu­tion­ary past, sci­en­tists say.

Yale Un­ivers­ity re­search­ers led by psy­chol­o­gist Lau­rie San­tos found in a se­ries of ex­pe­ri­ments that mon­keys treat mon­keys from out­side their groups with the same sus­pi­cion and dis­like as their hu­man cousins tend to treat out­siders. The find­ings are re­ported in the March is­sue of the Jour­nal of Per­son­al­ity and So­cial Psy­chol­o­gy.

“One of the more trou­bling as­pects of hu­man na­ture is that we eval­u­ate peo­ple dif­fer­ently de­pend­ing on wheth­er they’re a mem­ber of our ‘in­group’ or ‘out­group,’” San­tos said. “Pretty much eve­ry con­flict in hu­man his­to­ry has in­volved peo­ple mak­ing dis­tinc­tions on the ba­sis of who is a mem­ber of their own race, re­li­gion, so­cial class, and so on. The ques­tion we were in­ter­est­ed in is: Where do these types of group dis­tinc­tions come from?”

The an­swer, she adds, is that such bi­ases have ap­par­ently been shaped by 25 mil­lion years of ev­o­lu­tion and not just by hu­man cul­ture.

“The bad news is that the ten­den­cy to dis­like out­group mem­bers ap­pears to be ev­o­lu­tion­arily quite old, and there­fore may be less sim­ple to elim­i­nate than we’d like to think,” San­tos said. “The good news, though, is that even mon­keys seem to be flex­i­ble about who counts as a group mem­ber. If we hu­mans can find ways to har­ness this evolved flex­i­bil­ity, it might al­low us to be­come an even more tol­er­ant species.”

San­tos and mem­bers of her lab stud­ied rhe­sus ma­caque mon­keys liv­ing on an is­land off the coast of Puerto Rico. Mon­keys in this popula­t­ion nat­u­rally form dif­fer­ent so­cial groups based on family his­to­ry.

The in­ves­ti­ga­tors ex­ploited a well-known ten­den­cy of an­i­mals to stare long­er at new or fright­en­ing things than at fa­mil­iar or friendly things. They showed mon­keys pic­tures of oth­er mon­keys who were ei­ther in their so­cial group or mem­bers of a dif­fer­ent group. They found that mon­keys stared long­er at pic­tures of oth­er mon­keys who were out­side their group, sug­gest­ing the crea­tures spon­ta­ne­ously de­tect who is a strang­er and who is a group mem­ber.

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The Yale team’s re­sults sug­gest that the dis­tinc­tions hu­mans make be­tween “us” and “them”— and there­fore the roots of hu­man prej­u­dice—may date back at least 25 mil­lion years, when hu­mans and rhe­sus ma­caques shared a com­mon an­ces­tor.

“So­cial psy­chol­o­gists in­tro­duced the world to the idea that the im­me­di­ate situa­t­ion is hugely pow­er­ful in de­ter­min­ing be­hav­ior, even in­ter­group feel­ings,” said [Situationist Contributor] Mahza­rin Ba­naji of Har­vard Un­ivers­ity, a co-author of the pa­per. “Evo­lu­tion­ary the­o­rists have made us aware of our an­ces­tral past. In this work, we weave the two to­geth­er to show the im­por­tance of both of these in­flu­ences at work.”

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More here.

Related Situationist posts:

• “The Situation of Prejudice: Us vs. Them? or Them Is Us?”
• “Laurie Santos on the Evolutionary Situation of Cognitive Biases,”
• “Michael McCullough on the Situation of Revenge and Forgiveness,”
• “New Study Looks at the Roots of Empathy,”
• “The Endowment Effect in Chimpanzees – Abstract,”
• “The ‘Turban Effect’,”
• “The Situation of Racial Profiling,”
• “Jim Sidanius “Terror, Intergroup Violence, and the Law,”
• “Even monkeys know when they’re being treated unfairly,”
• “Monkey Fairness,”
• “The Situation of Being ‘(un)American’,” and
• “Perceptions of Racial Divide.”

Patrick Shin at Harvard Law School

On Tuesday, the HLS Student Association for Law and Mind Sciences (SALMS) is hosting a talk by Suffolk Law professor Patrick Shin entitled “Unconscious Bias and the Legal Concept of Discrimination.”

Professor Shin is a professor of law at Suffolk University Law School. He conducts research into the meaning and value of diversity in antidiscrimination law. He has applied psychology to real-world problems of employment discrimination law.

Professor Shin will be speaking in Austin East from 12:00 – 1:00 p.m.

Free burritos will be provided! For more information, e-mail salms@law.harvard.edu.

The Psychology of Guns and Race

I have just posted my forthcoming article, Quick on the Draw: Implicit Bias and the Second Amendment, on SSRN.  The abstract appears below:

African Americans face a significant and menacing threat, but it is not the one that has preoccupied the press, pundits, and policy makers in the wake of several bigoted murders and a resurgent white supremacist movement. While hate crimes and hate groups demand continued vigilance, if we are truly to protect our minority citizens, we must shift our most urgent attention from neo-Nazis stockpiling weapons to the seemingly benign gun owners among us—our friends, family, and neighbors—who show no animus toward African Americans and who profess genuine commitments to equality.

Our commonsense narratives about racism and guns—centered on a conception of humans as autonomous, self-transparent, rational actors—are outdated and strongly contradicted by recent evidence from the mind sciences.

Advances in implicit social cognition reveal that most people carry biases against racial minorities beyond their conscious awareness. These biases affect critical behavior, including the actions of individuals performing shooting tasks. In simulations, Americans are faster and more accurate when firing on armed blacks than when firing on armed whites, and faster and more accurate in electing to hold their fire when confronting unarmed whites than when confronting unarmed blacks. Yet, studies suggest that people who carry implicit racial bias may be able to counteract its effects through training.

Given recent expansions in gun rights and gun ownership—and the hundreds of thousands, if not millions, of private citizens who already use firearms in self-defense each year—this is reason for serious concern. While police officers often receive substantial simulation training in the use of weapons that, in laboratory experiments, appears to help them control for implicit bias, members of the public who purchase guns are under no similar practice duties.

In addressing this grave danger, states and local governments should require ongoing training courses for all gun owners similar to other existing licensing regimes. Such an approach is unlikely to run into constitutional problems and is more politically tenable than alternative solutions.

To download a copy of the entire paper, click here.  For a sample of related Situationist posts, see “Why Race May Influence Us Even When We “Know” It Doesn’t,’ “He’s a Banana-Eating Monkey, but I’m Not a Racist,” “Jennifer Eberhardt’s “Policing Racial Bias” – Video,” “A Situationist Considers the Implications of Simpson Sentencing,” “Guilt and Racial Prejudice,” “Perceptions of Racial Divide,” and “Banaji & Greenwald on Edge – Part IV.”

The Implicit Situation of Love

Earlier this month, Anthony Greenwald, one of the pioneers in IAT research, posted on Scientific American.  Here is how his piece, titled “I Love Him, I Love Him Not” began.

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Over a decade ago, I devised a test for detecting attitudes and biases operating below the level of a person’s awareness.

Known as the Implicit Association Test, or IAT, it is presently the most widely used of the measures of implicit attitudes that have been developed by social psychologists over the past 25 years. It has been self-administered online by millions, many of whom have been surprised—sometimes unpleasantly—by evidence of their own unconscious attitudes and stereotypes regarding race, age, gender, ethnicity, religion, or sexual orientation.

Now it is my turn to be surprised—pleasantly. The test has been used for a purpose that I long imagined as possible, but never dared attempt, knowing that it needed the attention of psychologists who focus on romantic relationships.  The results suggest that the IAT is effective in predicting which romantic relationships will last.

The report, just published in the journal Psychological Science, is provocatively titled “Assessing the Seeds of Relationship Decay.” In it, three psychologists at the University of Rochester — Soonhee Lee, Ronald Rogge, and Harry Reis—describe their research predicting relationship breakup. They recruited participants by many means, including referrals by psychology faculty and various Internet sources. The mostly female participants were married, engaged, or otherwise in exclusive, committed relationships.

The research started with the collection of several measures—not only the IAT, but also some established questionnaire measures of relationship quality—all of which might be useful predictors of breakup.  Of the 222 participants who started, 116 were successfully re-contacted to obtain reports on the status of their relationships at various times up to 12 months later.

Nineteen (16%) of the re-contacted participants reported that a breakup had occurred.  Remarkably, the IAT measure of a subject’s attitude toward her partner did a better job of predicting the breakup than did several questionnaire measures of relationship quality.

The authors concluded that the questionnaire measures might have been ineffective either because participants were unaware of negative attitudes toward their partners or perhaps because they knew about them but were unwilling to report them. If that’s correct, the IAT worked because it depends on neither awareness of the attitude nor willingness to report it.

What exactly is the IAT, and how does it tap into mental processes that can operate outside of awareness?

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You can read the entire post here.

For a sample of related Situationist posts, see “Cupid’s Situation,” “The Situation of Love,” “Some Situational Signals of a Suicidal Disposition,” “The Interior Situation of Undecided Voters,” “The Interior Situation of Suicide,” “Implicit Associations on Oprah,” “MSNBC Report on Implicit Associations,”“Measuring Implicit Attitudes,” “Mispredicting Our Reactions to Racism,” “Banaji & Greenwald on Edge – Part IV,” and “Do You Implicitly Prefer Markets or Regulation?,”

Some Situational Signals of a Suicidal Disposition

From Physorg:

Following the suicide of a relative or close friend, surviving family members and friends are left with a number of painful questions: “What made them do it?,” “Why didn’t they get help?”  The most troublesome question is often, “Is there anything I could have done to prevent this?” People who are contemplating suicide tend to conceal their behavior, or deny they are having suicidal thoughts, so it can be difficult to identify warning signs. Even experienced clinicians sometimes do not catch any warning signs and suicide experts have been searching for a clear behavioral marker of suicide risk.

Psychological scientist Matthew Nock of Harvard University, along with colleagues from Harvard University and Massachusetts General Hospital, adapted the Implicit Association Test (IAT)  to measure associations between life and death/suicide and examined if it could be effective in predicting suicide risk.

The IAT is a widely used test that measures automatic associations people hold about various topics ó participants are shown pairs of words and how quickly they respond indicates if they unconsciously associate those words together. In the IAT version used in this study, participants classified words related to “life” (e.g., breathing) and “death” (e.g., dead) and “me” (e.g., mine) and “not me” (e.g., them). Faster responses to “death”/”me” stimuli than “life”/”me” stimuli would suggest a stronger association between death and self.

People seeking treatment at a psychiatric emergency room participated in this study. They completed the IAT and various mental health assessments. In addition, their medical records were examined six months later to see if they had attempted suicide within that time.

The results, reported in Psychological Science, a journal of the Association for Psychological Science, revealed that participants presenting to the emergency room after a suicide attempt had a stronger implicit association between death/suicide and self than did participants presenting with other psychiatric emergencies. In addition, participants with strong associations between death/suicide and self were significantly more likely to make a suicide attempt within the next six months than were those who had stronger associations between life and self. These results suggest that an implicit association between death/suicide and self may be a behavioral marker for suicide attempt. These findings also indicate that measures of implicit cognition may be useful for identifying and predicting clinical behaviors that tend not be reported.

As Nock explains, “these results are really exciting because they address a long-standing scientific and clinical dilemma by identifying a method of measuring how people are thinking about death and suicide that does not rely on their self-report.”  He adds, “we are hopeful that this line of research ultimately will provide scientists and clinicians with new tools for measuring how people think about sensitive clinical behaviors that they may be unwilling or unable to report on verbally.”

[Situationist Contributor] Mahzarin Banaji, also of Harvard University and a co-author of this study, adds that this work presents a strong argument for the importance of funding basic behavioral research.  “These results are an example of basic research helping to solving a troubling and devastating problem in every society. The method we used was designed to understand the mind, but it turned into a technique that can predict disorders of a variety of sorts. One wonders why funding agencies that should know better about the value of basic research seem so naive when it comes to decisions about what is in the public’s interest,” Banaji explains.

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For a sample of related Situationist posts, see “Race and Implicit American-ness,” and “The Interior Situation of Undecided Voters,” “The Interior Situation of Suicide,” and “The Disturbing Mental Health Situation of Returning Soldiers.”

Krieger on the Situation of Discrimination in France

Situationist Contributor Linda Hamilton Krieger is the French-American Foundation’s scholar-in-residence at Sciences Po.  She recently appeared on a France24 debate to discuss French and American strategies for fighting discrimination in hiring and education.  You can watch the roughly six-minute video of the interview below.

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To review a sample of related Situationist posts, see see “Implicit Associations on Oprah,” “Afraid of Knowing Ourselves,” “Why Race May Influence Us Even When We “Know” It Doesn’t,” “Geoffrey Cohen on “Identity, Belief, and Bias”,” “Colorblinded Wages – Abstract,” “The Cognitive Costs of Interracial Interactions,” “Measuring Implicit Attitudes,” “Firefighters and the Situation of “Merit”,” “The Situation of Situation in Employment Discrimination Law – Abstract.”