Although Michael Dunn was found guilty of four lesser charges, his mistrial for the murder of Jordan Davis bears obvious comparison to George Zimmerman's acquittal for the murder of Trayvon Martin. In both cases, innocent, unarmed black teenagers were killed with impunity, with after-the-fact “explanations” that strain credulity, to say the least, while prosecutors failed to address the central role that race played in the case.
Zimmerman stalked an unarmed Martin against the explicit instructions of a 911 operator, but claimed he was the victim of a potentially deadly surprise attack. Dunn shot and killed an unarmed Davis (leaning away from him) with one of ten individually-fired shots in three distinct bursts, but claimed that he was the one who was about to be killed. More than that, in both cases, the killers have displayed stereotypical racial animus. Zimmerman never could stop referring to Martin as “the suspect,” even though there was no crime for him to be suspected of. Dunn wrote a jailhouse letter: “The jail is full of blacks and they all act like thugs. This may sound a bit radical but if more people would arm themselves and kill these (expletive) idiots, when they’re threatening you, eventually they may take the hint and change their behavior.”
Of course, there are multiple differences as well. But two larger frameworks set the stage for both murders, as well as the trials. First, both killers were, at the very least, encouraged by Florida's so-called “stand your ground” laws, which eliminated the traditional duty to retreat, rather than escalate a potentially deadly confrontation, thereby sanctioning the vigilante mindset both Zimmerman and Dunn exhibited. The law was changed over the objections of Florida police and prosecutors - including the Florida Prosecuting Attorneys' Association and the police chiefs of Miami and St. Petersburg, among many others, who clearly foresaw its potential negative consequences. Second, there is a widespread phenomenon known as “implicit racial bias”, which exists quite apart from any conscious racial animus, but nevertheless has negative consequences of its own, while also feeding into and providing cover for those—like Dunn and Zimmerman—who do harbor such animus.
The existence of implicit racial bias—as well as outright racial bias—brings out the very worst in the “stand your ground” law. This was touched on briefly during a segment on MSNBC's "All In With Chris Hayes":
Representative Hakeem Jeffries (D-N.Y.): "You've got a feeling of mistreatment, institutionalized in law, to perhaps legalize vigilanteeism, in some instances. That was the case with Zimmerman, hopefully it won't be the case with Dunn....”
"What the law is doing in this particular instance is allowing for subjective bias perhaps to be elevated to be a legitimate defense. And that's the problem."
Chris Hayes: "And that is what's so perverse. When people say ... I honestly feared for my life, it's possible you had completely erroneous racialized stereotypes of that person. and the honesty of your racial baggage shouldn't be exculpatory. That's what seems so perverse."
Dr. James Petterson: "But it is and it has been, and the thing is we're not going to be able to overcome the challenges in the criminal justice system unless we confront the pervasiveness of racial bias in our society.
One major obstacle we face is the downside of our racial progress: because explicit racism has become so morally unacceptable in such a short period of time, historically speaking, as a society we've rushed past dealing with the persistent racial baggage of our past. Even worse, our conscious disavowal of racism actually makes it far more difficult to deal with its persistent unconscious influence. In an age when conscious bias truly has become a marginal minority viewpoint, conflating conscious and unconscious bias needlessly turns a difficult challenge into a virtually impossible one. That's why, with the Dunn-Davis trial still fresh in our minds, it's an opportune time to look at some of what's known about implicit racial bias, and how that knowledge can help us create a more just society for all of us.
While many whites today subscribe to a notion of being “colorblind” about race, implicit bias research shows that such notions are fanciful at best, and actually make it harder for us to match our actions with our ideals. Here are six points we need to keep in mind, which can help us do better:
First, implicit racial bias is a pervasive phenomenon, with deep roots in how humans normally think. A large mass of data has been collected over the past 10+ years showing that roughly 70% of all Americans have an unconscious racial bias, compared to only 20% who are consciously aware of it. That means that roughly half of all Americans are colorblind in a very different sense from how the term is usually deployed: they're blind to their own color biases. This is one of the most striking findings from the implicit attitudes test, introduced by Anthony Greenwald and colleagues at the University of Washington in 1998, an online version of which has been taken by more than 10 million people.
In the test, bias is revealed via response times. Black and white cues (names or faces, in different versions) are presented, and subjects respond accordingly with either a right- or left-handed response. Then pleasant and unpleasant cue words are presented, with subjects again responding with either a right- or left-handed response. When the two tasks are combined, response times are faster for the pairings that implicitly seem “natural” to the subject—black/right, unpleasant/right for 70% of all Americans. Response times are slower when they are switched.
Implicit bias is a pervasive phenomenon encompassing far more than race, and its rooted in even more basic human cognitive functions as well. Not only can't we get rid of it, we wouldn't necessarily want to. But we can manage, influence, reshape and restrain it—if we can muster the will to confront it. Ignoring or denying it simply will not work. It is the one recipe for continued failure.
The basis of implicit bias is categorization and stereotyping. Humans categorize the world as a fundamental way of comprehending it. The vast majority of nouns are categories: cats, dogs, film noir, fajitas, all just names for different categories of things. Without categorization it would be difficult to have, much less communication, any sort of more complicated thought. Stereotyping goes along with categorization: a bird is a category of animal, a robin is a stereotypical bird, as opposed to a chicken, which doesn't fly, or a kiwi, which doesn't even have wings.
Biases are also helpful heuristics—we don't have to remember every experience we've ever had with a dog, or a cat, or film noir, or a fajita; instead, we develop categorical associations—biases. These become particularly problematic in the social world, especially as the social world becomes both more complicated and more dynamic than the sort of the small-group societies in which human cognitive capacity evolved. But there's so much benefit we derive from these same mechanisms, which are so pervasive to how think and live, that simply doing away with them is not really an option. Instead, we need to learn more about how they work—particularly about how they can lead us astray. Implicit racial and gender biases are prime examples of this. Through conscious awareness, we can gain some degree of mastery, and even devise ways of helping one another out when we get lead astray. By following such a path, we really can turn our diversity into a true source of greater wisdom, self-knowledge, strength, and self-determination.
Second, implicit bias can be deadly—literally. “Shooter bias” refers to the biased propensity to “shoot first and ask questions later” when encountering a subject who is black—even for people who aren't consciously racist. It's certainly not the only form of bias leading to worse criminal justice treatment of black people, but it is one of the most dramatic, and has been studied by researchers in laboratory simulations for more than a decade. Fortunately, there is evidence that it can be corrected by professional training, and that combination of facts has even lead to prominent notice in law enforcement circles—a hopeful sign of a larger potential to move beyond past stalemates.
An article in Police Chief Magazine by Joshua Correl, the University of Chicago psychology professor who pioneered shooter bias research, lays out the significant facts. Researchers began looking into shooter bias in the aftermath of the shooting death of Amadou Diallo, an unarmed black man shot 41 times by police who mistakenly thought he had a weapon. Using a shooter simulation video game with college students and community members, researchers found that subjects were quicker to respond “shoot” to a black target and “don't shoot” to a white one, and that they were more likely to shoot unarmed black targets than unarmed white ones. If this sounds like yet another reason that “stand your ground” laws might not be such a good idea, congratulations. You're starting to catch on.
However, Correl also had some good news to report. A test of trained police officers – one group from the Denver Police Department, the second a national sample – found that although the reaction-time bias remained, the far more critical error-rate bias was eliminated among trained police. This is clearly a most welcome finding, but of course it took place in a very controlled situation. Error rate bias in field situations—such as the shooting of Amadou Diallo—is still a very real possibility. But the fact that police training does eliminate error-rate bias in a controlled setting is still very good news, and a hopeful sign more generally that professionalized training can help overcome implicit bias in important ways. The more we pay attention to implicit biases, the more chance we have to correct or compensate for them, and thereby spare ourselves from avoidable tragedies. Ignoring them only ensures that they will persist, determining our fate without our even knowing it
Third, implicit bias works through multiple different channels, some of which are connected to quite explicit histories--although those histories might not be known to many people today. A prime examples of this is the derogatory association of black people—particularly black men—with monkeys and apes. A prime example of this occurred in the first few days of Obama's presidency, when a chimpanzee was shot in Connecticut, and the New York Post ran a cartoon of the shooting with the punchline "Now they will have to find someone else to write the stimulus bill.”
In a diary at the Situationist blog, “Why Race May Influence Us Even When We 'Know' It Doesn’t," Harvard law professor Jon Hanson first laid out the dominant colorblind logic, then quoted Rev. Al Sharpton calling attention to “the historic racist attacks of African-Americans as being synonymous with monkeys,” as well as the Post's dismissal of Sharpton's remarks, saying the cartoon was “a clear parody of a current news event.” Why couldn't it be both? Hanson then asked. From the Post's perspective, this was literally thinkable:
If they did not think about race, then they know race didn’t influence them. From that perspective, Sharpton’s suggestion that race may have played some role seems preposterous.
And, one might add, precisely because it seems preposterous, it's then easy to make the leap to accusing Sharpton of intentional ill-will. Sharpton is the one being racist! Sharpton is the one who's always thinking about race, always obsessing over it! He is “a race hustler” once again “playing the race card” in the language of today's conservatives.
Well, not exactly, as Hanson quickly notes, “But that sort of reasoning is itself preposterous when one takes seriously what social psychology and related mind sciences have discovered about the role of unconscious or implicit associations.”
For example, a paper covering a set of studies published in 2008, "Not Yet Human: Implicit Knowledge, Historical Dehumanization, and Contemporary Consequences" by lead author Phillip A. Goff of Pennsylvania State University, first found that presenting subjects with subliminal images of black faces (priming) made it easier for them to identify degraded images of apes, while priming with white faces had the opposite effect.
Proceeding stepwise from there, by the fifth study, researchers found that participants shown a video of a black suspect being beaten by police were more likely to believe the beating was justified “when primed with apes than with big cats,” thus showing that “the Black–ape association can alter judgments of criminal suspects when activated.”
The final study looked at activation in the real world, drawing on a database of death-eligible murder case covered by the Philadelphia Inquirer over a period of decades. comparing trial outcomes with the presence of ape and monkey-related language in trial coverage. The results suggested that “Black defendants are more likely to be portrayed as apelike in news coverage than White defendants and that this portrayal is associated with a higher probability of state-sponsored executions.”
In short, the implicit ape-black association—which white participants never even notice—is nonetheless so strong that it's at least partially responsible for sentencing men to death. That's a chilling example of how powerful implicit racial bias can be.
Fourth, implicit bias has multiple different ways of impacting the legal system, which we are just now beginning to understand. The impact of implicit bias goes far beyond just the criminal justice system, as reflected in a recently-published book, Implicit Racial Bias Across The Law, with over a dozen chapters with contributors dealing with a broad range of legal topics, including property torts, employment health, education. communications, corporations, taxes, intellectual and the environmental, as well as various criminal justice issues.
However, the criminal justice field is particularly rich with avenues to explore—including decision-making by police, judges, juries... and prosecutors. For example, a paper in the Seattle University Law Review ticks off a long list of points at which implicit bias can influence prosecutorial decision-making on a daily basis: “Should an arrested citizen be charged with a crime? At what level should bail be recommended? Should bail be opposed? What crime or crimes will be charged? Should charges be dropped? Should a plea bargain be offered or negotiated? Which prosecuting attorney will prosecute which alleged crime? What will the trial strategy be? Will minority jurors be challenged for cause or with peremptory challenges? What sentence will be recommended?”
Just considering the subject of “stand your ground” laws, an analysis conducted for PBS's "Frontline" found that “Whites who kill blacks in Stand Your Ground states are far more likely to be found justified in their killings. In non-Stand Your Ground states, whites are 250 percent more likely to be found justified in killing a black person than a white person who kills another white person; in Stand Your Ground states, that number jumps to 354 percent.”
"Frontline" also noted the same pattern of multiple points at which bias could appear:
Stand Your Ground laws can be applied at multiple points during an investigation.
In Florida, for example, if a shooter invokes the Stand Your Ground law, police can determine whether to make an arrest when they arrive on the scene. If they do arrest him, the suspect then appears before a judge who determines whether Stand Your Ground applies to the case. If it does, the prosecutor then decides whether to go to court.
The system offers substantial discretion to authorities at every level, which is much more difficult to monitor and evaluate — and much more vulnerable to creeping bias.
Because bias can appear at so many points due to “stand your ground” laws, the obvious fix is to simply repeal the laws—which prosecutors oppose on more general grounds as well. But the more general problem of bias creeping in at so many different points presents a more daunting prospect. It might seem to suggest that overcoming bias is an impossible task—and doing so entirely very well might be. But that doesn't mean we can't make substantial improvements much more readily. This brings us to our next major point:
Fifth, once we start to recognize implicit bias, some relatively simple actions can have a profound positive effect. This was dramatically demonstrated by a study of jury decisions in two Florida counties from 2001 to 2010. As explained in the paper's abstract, it found that “(i) juries formed from all-white jury pools convict black defendants significantly (16 percentage points) more often than white defendants, and (ii) this gap in conviction rates is entirely eliminated when the jury pool includes at least one black member.”
The gap was eliminated by changing the conviction rates of both white and black defendants, as explained in the paper itself: “the presence of even one or two black people in the jury pool results in significantly higher conviction rates for white defendants and lower conviction rates for black defendants.. Note that this finding was about jury pools—not seated juries. Simply having a black citizen in the jury pool was enough to eliminate the racial bias in conviction rates. As the paper explains, the process of striking the black juror “pulls the likelihood of conviction for the seated jurors toward that excluded person’s position even though he or she does not wind up serving on the jury.” So, if you want unbiased trials, the solution is simple: ensure that at least one black juror is included in every jury pool.
Of course, some will have a problem with this solution: requiring the inclusion of at least one black member in the jury pool will strike some people as “affirmative action” or a “quota system”, something which conservatives have railed against for decades, and which even most liberals have been muted in defending. A full-scale discussion of affirmative action is beyond the scope of this article, but consider how strained the argument is in this context. Jury duty is just that—a duty. Materially, it is usually a sacrifice, and the person who benefits from it is not the juror themselves, but rather the defendant who receives an unbiased trial. So attacking this solution as a “quota system” merely serves to underscore that attacking “quotas” is something that deserves a good deal more critical scrutiny than it usually gets.
We should not need a black juror. We should all just be colorblind. Well, ideally, perhaps. But ideally, we shouldn't have any crime at all, and hence no need for criminal juries in the first place. But what happens when we just try to be colorblind—even though we're not? That brings us to our last point.
Sixth, trying to just be colorblind does not work to overcome implicit bias. Given how deeply wired it is, it's not surprising that implicit bias cannot be overcome by ignoring it or wishing it away. When people try to be colorblind—ignoring race, when obviously they see it—the result inevitably backfires, as some simple experiments have shown, as reported in the paper Color Blindness and Interracial Interaction: Playing the Political Correctness Game.
The paper reported on two main studies, plus two follow-ups. The first study had 36 research subjects sort photographs based on 7 characteristics: race (Black/White), gender (male/female), age (over 30/under 25), color photo background (blue/red), hair color (light/dark), facial expression (smiling/not smiling), and facial hair (present/absent). White subjects were quickest to categorize faces by background color, followed by by gender, then race. Yet they mistaken thought that race would be the second-hardest category, exceeded only by age. Whites thus under-estimated their ability to see race. In contrast, 22 black subjects performed similarly well, but did not under-estimate their abilities. The results, the authors wrote, "support the conjecture that Whites’ underestimation of this ability results from a specific desire—one not shared by our Black participants—to appear unprejudiced."
This conjecture was further explored in a second study in which white subjects were paired with either white or black partners in an 20-questions style effort to identify which photograph their partner was looking at. They were working from a set of 32 pictures which varied by gender, background color (red or blue), and race (White or Black), so clearly asking about the race of the photo subject was part of an effective winning strategy. Yet, participants were clearly reluctant to do so when their partner was black, mentioning race only 64 percent of the time, compared to 93 percent of the time when the partner was white.
Not only did performance suffer as a result, so did perceived friendliness, measured by independent coders using two different measures: facial expression and eye contact. If color-blindness is supposed to be a path toward racial harmony, it clearly doesn't work. Indeed, one of the follow-up studies found a direct correlation between reluctance to mention race and the endorsement of two color-blind statements, ‘‘When I interact with other people, I try not to even notice the color of their skin’’ and ‘‘If everyone paid less attention to race and skin color, we would all get along much better.’’
The problem, of course, is that the failure of the color-blind strategy doesn't seem to significantly and coherently impact whites in a way that they can comprehend and find an alternative to. The strategy may not work, but so what? Failure is not only an option—it's business as usual!
And yet, that failure ought to be seen as deadly serious. After all, the vast majority of whites seemed quite content with segregation when it was the common practice (and, of course, with slavery before that). The fact that black people objected mattered not at all to most—in fact, it encouraged many. A crucial component of the shift in racial attitudes that ended segregation was precisely that African-American's feelings, attitudes, opinions and values were taken into account, rather than being discounted or actively thwarted. If we truly want to be true to that legacy of closing the book on an ugly racist past, then we need to be just as serious today about taking African-American's experience into account. If colorblindness alienates African-Americans—as it surely does—then white Americans have a moral duty to reject it, simply on that basis alone. Once we start down that road, then we'll finally be in a position to understand the ill-will involved in colorblindness for ourselves.
Turning back to the Dunn-Davis murder case, what does all the above have to tell us? Three points immediately stand out:
(1) “Stand your ground” laws are inherently biased against black people, and should be ruled unconstitutional on that basis alone. The shooter bias phenomenon means that innocent black people are more at risk of being shot for no reason, because they are mistakenly seen as a threat—even by people who are not consciously racist . Thus, any law that increases split-second decision-making will inherently put black lives at risk more frequently than other races. By removing the duty to retreat, this is precisely what “stand your ground” laws do.
(2) Implicit racial bias is not an excuse. In today's polarized atmosphere, we can expect that any mention of racial bias will be turned back on itself—"Well, if all whites are biased, then you can't blame him specifically". But this is no reason to stay silent. Dunn, even more blatantly than Zimmerman before him, exhibited explicit racial bias. That's completely different from implicit bias. In fact, the only way we can move forward as whole society is by confronting the challenges of implicit bias and developing ways to correct for it—such as the inclusion of black people in jury pools, as shown by the study mentioned above. In turn, the more progress we make in overcoming the ill-effects of implicit racial bias, the more starkly explicit racial bias will be isolated in contrast.
(3) The Florida prosecutors were profoundly misguided. Another "All In" guest on the previous segment, author Lisa Bloom, noted:
"There are a lot of similarities, including two of the prosecutors from the Trayvon Martin case prosecuted this case. And as in that case, they've been afraid to talk about race in that courtroom. Race is a key element of this case. Including this is a defendant that wrote explicitly racist letters from prison. He said, 'The more I get to know those people [referring to African Americans] the more prejudice I become.' I've been a civil rights lawyer for decades, it's very rare that you get an explicit statement like that from someone. Well, they had it here and they didn't use it. Because they don't like to talk about race in these courtrooms. I think that's a problem."
Bloom weighed in again immediately after the verdicts were announced, saying the prosecutors should be replaced by a team “who are going to bring in, for example, the racist letters that this man wrote behind bars calling African-Americans 'thugs,' 'gangsters,' saying 'the more I get to know them, the more prejudice I am,' etc. those letters should be brought in. This jury should not have had the very limited view that they got of Michael Dunn that he was gentle and peaceful according to all the defense witnesses, unrebutted by the state."
The evidence is overwhelming: Colorblindness doesn't work. Trying to pretend that race doesn't exist does not work. Yet, in case after case, the Florida prosecutors persist in this pretense. This is abominably incompetent lawyering. What's more, their refusal to openly confront explicitly expressed racism aids and abets the process by which implicit and explicit racism become confused and co-mingled in the public's mind. Instead of isolating and stigmatizing explicit racism, they further it by their silence.
It's time for all of us to break that silence once and for all. Race is not going away, but racism could, as long as we continue to shine a light on it. Bringing implicit racial bias to light is the essential first step in dealing with it. There is less shame in having unconscious biases—they are, after all, not a matter of our conscious will. But there is endless shame in not taking steps to counter them, because that is entirely a matter of our conscious will.