While Others Pretend To Be Colorblind, The San Francisco DA Office Acknowledges Implicit Bias And Begins Its Experiment In ‘Blind Charging’

Our implicit biases continue to tear at the fabric of our society. The question is, what are we as a profession going to do about it?

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“S**t, I like to think that at every opportunity I’ve ever been threatened with resistance, it’s been met with resistance.”— Tupac

Last week, the New York Times published Timothy Williams’s insightful article “Black People Are Charged at a Higher Rate Than Whites. What if Prosecutors Didn’t Know Their Race?” In his article, Williams writes:

The [San Francisco District Attorney’s Office] has begun experimenting with an approach it describes as “blind charging,” which prevents prosecutors in one of the nation’s busiest district attorney’s offices from seeing demographic information before making an initial decision on whether to charge someone.

Criminal justice experts said San Francisco appeared to be the first such office in the nation to test that approach…. ‘The question we want to ask ourselves is, would you charge based just on the behavior, without the race and other demographic information?’ said Mr. Gascón. ‘We wanted to see what might be causing a disparate application of the law….’

The experiment in ‘blind charging’ comes as prosecutors’ offices across the nation have been instituting policy changes to grapple with what has been found to be extensive racial bias in the criminal justice system, which has led to disproportionate levels of incarceration among African-Americans….

Legal analysts said the San Francisco policy appears to go a step further [than other cities’ policies] by directly confronting ingrained racial bias that leads some prosecutors, for example, to file charges against African-Americans for low-level drug offenses more frequently than against whites, even though studies show that white people use illicit drugs at higher rates.

During the recent political campaign season, some candidates claimed it was unfair to “to use a broad brush to accuse law enforcement of — of implicit bias or institutional racism.” The truth is that implicit or unconscious bias should not be deemed an insult. In fact, these biases are part of a reality that we all suffer from. In other words, justice is not blind. Unconscious racial bias can lead to racial inequality.

Implicit or unconscious bias is a mental shortcut “that fills in gaps in our knowledge with similar data from past experiences and cultural norms.” It is a normal part of how we make decisions. National Public Radio notes, “There are big racial differences in how school discipline is meted out: students of color are much more likely to be suspended or expelled than white students, even when the infractions are the same.”

A U.S. Department of Education of Civil Rights 2014 Report revealed that “black students are suspended and expelled at a rate three times greater than white students.” The disproportionately high suspension rates start suspiciously early. Although black children make up 18 percent of preschool enrollment, they account for almost half of the children who receive more than one out-of-school suspension. In addition, the Washington Post highlights, “black teens who commit a few crimes go to jail as often as white teens who commit dozens” (e.g., the absurd results from our “war on drugs”).

It is important to be conscious of our hidden biases, but as Richard Banks and Richard Thompson Ford of Stanford Law School point out, “The goal of racial justice efforts should be the alleviation of substantive inequalities, not the eradication of unconscious bias.”

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Unconscious bias based on race pervades our law, education, and politics. In 2015, former FBI Director James Comey spoke specifically on this subject, as noted by the New York Times:

Previous FBI directors had limited their public comments about race to civil rights investigations, like murders committed by the Ku Klux Klan and the bureau’s wiretapping of the Rev. Dr. Martin Luther King Jr. But Mr. Comey tried to dissect the issue layer by layer. He started by acknowledging that law enforcement had a troubled legacy when it came to race.

‘All of us in law enforcement must be honest enough to acknowledge that much of our history is not pretty. At many points in American history, law enforcement enforced the status quo, a status quo that was often brutally unfair to disfavored groups.’

Mr. Comey said there was significant research showing that all people have unconscious racial biases. Law enforcement officers, he said, need ‘to design systems and processes to overcome that very human part of us all…. Although the research may be unsettling, what we do next is what matters most.’

For some, it is race-consciousness that is perceived as racism. For others, racism is reality and history. I sometime wonder if Chief Justice John G. Roberts ever regrets writing, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Ironically, it was Justice Clarence Thomas who added the sentiment in the respective concurring opinion: “If our history has taught us anything, it has taught us to beware of elites bearing racial theories.”

Roberts’s prior statements or race seems to ignore the legacies we have all inherited, the reality we each individually face. Eric Liu, the former presidential speechwriter, may have stated it best when he wrote, “The experience of African-Americans is exceptional in its systematic, multigenerational, reverberating effects. And it’s exceptional in its centrality to the founding and building of our nation. No experience reveals more than the African-American experience both the hypocrisy and the possibility of our national creed.” I often wonder why citizens against policies that seek to make up for previous discrimination become so enraged upon the broaching of such subjects.

According to the Sentencing Project, “If current trends continue, one of every three black American males born today can expect to go to prison in his lifetime, as can one of every six Latino males — compared to one of every seventeen white males.”

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Cornell Law School notes, “Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility… Judges hold implicit racial biases. These biases can influence their judgment.”

Judges are not colorblind. Teachers are not colorblind. Our society is not colorblind. To believe you are colorblind is to be naive; to believe the justice system is colorblind is to be clueless. We should all be conscious of our hidden biases. We should be mindful of the legacies we have all inherited. It is important to understand how the media influences us. We are wired for prejudice, but this does not have to remain fatal for those most at risk in our society.

It is evident that unconscious racial bias pervades our law, education, and politics. It remains inexcusable for us to permit negative hidden biases to continually operate in our blind spots. These biases must be brought to light. We must be cognizant and cautious of our automatic behaviors and established beliefs. Our implicit biases continue to tear at the fabric of our society. The question is, what are we as a profession going to do about it?

Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn.

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