Saturday, October 3, 2009
Justin D. Levinson (University of Hawaii at Manoa - William S. Richardson School of Law) has posted Race, Death, and the Complicitous Mind (DePaul Law Review, Symposium on Media, Race, and the Death Penalty, Vol. 58, p. 599, 2009) on SSRN. Here is the abstract:
Despite the historical racial imbalance in capital punishment, interdisciplinary scholarship has failed to investigate fully how the human mind may automatically and systematically facilitate racial bias against African-American defendants in capital cases. Considered in the legal context, well-developed social science principles may help reveal how people’s automatic and unintentional cognitive processes may either propagate racial disparities in the death penalty or serve as a masking agent in covering up those disparities. This Article introduces implicit social cognition research to the death penalty context and proposes new hypotheses that help explain why capital cases may be automatically infused with racial bias and why research to date may unintentionally cover up existing racial disparities.
The author presents two preliminary hypotheses that apply social cognition theory to the capital context. Death Penalty Priming Hypothesis posits that the supposedly race-neutral death qualification of jurors unintentionally and automatically elicits implicit racial bias in the final jury panel. This hypothesis is based on the social cognition concept of priming, a phenomenon that explains how even seemingly race-neutral conversations can elicit automatically racially biased cognitive processes in jurors. This automatic activation results from both deep historical associations between capital punishment and race and the continuing propagation of racial stereotypes in the media and American culture generally.
Racial Bias Masking Hypothesis proposes that influential studies examining racial bias in the death penalty have unintentionally covered up racial bias against African-American defendants because these studies rely upon sources of case information that are tainted by implicit bias. Social cognition studies have demonstrated that people store and retrieve information from the memory in stereotype driven ways, and that transmission of information from one source to another can unintentionally transform a non-biased story into a racially biased one. As a result of the unintentional fact-based errors that occur when racial stereotypes are present, even the most thoughtful and complex of empirical studies on race and capital punishment may use statistical techniques that unintentionally mask racial bias. The Article considers these two new hypotheses and calls for a comprehensive interdisciplinary collaboration designed to further investigate racial disparities in the death penalty.