Mitigating Implicit Racial Bias Among Criminal Court Jurors: Intervention Through Instruction

6 Introduction 7 Implicit Bias 10 Implicit Racial Bias and Criminal Justice 26 Implicit Racial Bias and the Jury 32 Implicit Bias Intervention Examples 42 Educating Jurors 47 Present Study 58 Hypotheses 59 Method 60 Participants 60 Procedure 61 Materials 63 Experimental Conditions 64 Measures 65 Defendant/Victim Names 67 Pilot Testing 68 Results 70 Profile of Case Judgments 70 Effects of Juror Race 71 Effects of Defendant Race 74 Effects of Jury Instruction 76 Discussion 79 Effects of Juror Race 79 Effects of Defendant Race and Jury Instruction 84 Limitations 89 Future Directions 93 References 100 Tables 116 Participant Demographics (Table 1) 116 Profile of Case Judgments (Table 2, 3) 117 Effects of Juror Race (Table 4-7) 118 Effects of Defendant Race (Table 8-15) 120 MITIGATING IMPLICIT JUROR BIAS 5 Effects of Jury Instruction (Table 16-33) 124 Appendix 133 A. Tables and Figures for Implicit Bias Intervention Examples 133 B. Jury Instruction Development 136 C. Jury Instruction Materials 142 D. Informed Consent 143 E. Debriefing Script 144 F. Mock Trial Cases 145 G. Measures 148 H. Processes of Trial by Jury 152 I. Follow-Up Bias Questions 155 MITIGATING IMPLICIT JUROR BIAS 6 Abstract The construct of implicit bias is well documented but has only recently gained attention for its potential role in perpetuating racial disparities in judicial outcomes. Some efforts have been made to mitigate the effects of implicit bias on juries’The construct of implicit bias is well documented but has only recently gained attention for its potential role in perpetuating racial disparities in judicial outcomes. Some efforts have been made to mitigate the effects of implicit bias on juries’ decision-making through specialized jury instructions; However, empirical investigation evaluating the effect of the jury instruction amendment is lacking. The present study sought to fill this gap. Participants acting as mock jurors (N = 203) received either the new instruction that included the implicit bias commentary or the original instruction. Participants responded to three separate cases, in which defendant and victim race were randomized, offering a verdict and sentencing recommendation, along with responses to additional measures assessing participants’ perception of defendant culpability. Contrary to hypotheses, though in line with the only other known study investigating an implicit bias jury instruction amendment (Elek and Hannaford-Agor, 2014), the present study found no evidence of an influence of the new instruction on verdict, sentencing, or any additional outcomes. However, evidence was found for differences in case judgments based on participant race. Reasons for the lack of effect of instruction are discussed, along with suggestion for future interventions. MITIGATING IMPLICIT JUROR BIAS 7 Introduction “We all have ideas about race, even the most open-minded among us. Those ideas have the power to bias our perception, our attention, our memory, and our actions—all despite our conscious awareness or deliberate intentions. Our ideas about race are shaped by the stereotypes to which we are exposed on a daily basis. And one of the strongest stereotypes in American society associates blacks with criminality” (Eberhardt, 2019, p. 6). African Americans represent 13.4% of the population in the United States but make up 38% of the prison population (Nellis, 2016; U.S. Census Bureau, 2018). In 2014, 2.3 million African Americans were under correctional supervision (NAACP). Nationwide, African Americans are incarcerated at more than 5 times the rate of Whites, and 1 in 3 Black men will be imprisoned at least once in their lifetime (Bonczar, 2003). Some experts have argued that such statistics are simply a reflection of socioeconomic disadvantage, rather than race; they reason that African Americans tend to be poorer than Whites, and people in poverty tend to engage in more criminal behavior (see Ghandnoosh, 2014). Similarly, the claim has been made that a high proportion of residents in urban locations are African American, and crime is most concentrated in such areas (e.g., Raphael & Sills, 2006). However, no matter the extent to which such arguments may be true, they fail to explain racial disparities in prosecution and sentencing. That is, evidence suggests that once arrested, African Americans are imprisoned at a significantly higher rate than Whites (Nellis, 2016), and prosecutors are more likely to charge African Americans with crimes that carry heavier sentences than Whites (e.g., Starr & Rehavi, 2013). Furthermore, studies have MITIGATING IMPLICIT JUROR BIAS 8 controlled for a number of additional variables, including socioeconomic status, crime seriousness, and criminal history, and still found evidence of racial inequalities such as Blacks being detained at a higher rate than Whites (e.g., Kutateladze, Andiloro, Johnson, & Spohn, 2014). Thus, even if there are disparities in crime rate between African Americans and Whites as a result of external variables such as socioeconomic status or urban living, such differences cannot explain the fact that African Americans are treated disproportionately in prosecutorial and sentencing decisions. There are several possible explanations for the racial inequality that exists throughout the post-arrest stages of criminal justice. Recently, research has indicated that judicial policies and other systemic procedures create and perpetuate racial disparities in criminal justice (e.g., Nellis, 2016; Schanbacher, 2013). Indeed, legal scholars such as Michelle Alexander have proposed that the criminal justice system itself is a means through which racial prejudice can be permissibly enacted in what is otherwise an overtly post-racist society. She suggests that it is “perfectly legal to discriminate against criminals in nearly all the ways in which it was once legal to discriminate against African Americans, [and] once labeled a felon, the old forms of discrimination are suddenly legal” (Alexander, 2010, p. 2). Indeed, it may be the case that existing legal principles and procedures are in some ways inextricably prejudiced against African