CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, January 21, 2020

Levinson et al. on Race and Retribution

Justin D. LevinsonRobert J. Smith and Koichi Hioki (University of Hawaii - William S. Richardson School of Law, Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute) and Kobe University - Graduate School of Business Administration) have posted Race and Retribution: An Empirical Study of Implicit Bias and Punishment in America (UC Davis Law Review, Vol. 53, 2019) on SSRN. Here is the abstract:
Retribution stands at the forefront of America’s criminal justice system. Yet, as Justice Anthony Kennedy cautioned, retribution is also the motive for punishment that “most often can contradict the law’s own ends.” This Article proposes, and then tests empirically, the existence of a novel contradiction of retribution — the idea that race and retribution have become automatically and inextricably intertwined in the minds of Americans.

The study we present in this Article demonstrates that the core support for retribution’s use has been shaken by implicit racial bias. Our national empirical study, conducted with over 500 jury-eligible citizens, shows that race cannot be separated from the concept of retribution itself. The study finds, for example, that Americans automatically associate the concepts of payback and retribution with Black and the concepts of mercy and leniency with White. Furthermore, the study showed that the level of a person’s retribution-race implicit bias predicted how much they supported retribution as a desirable punishment rationale — the stronger the anti-Black implicit racial bias they held, the more likely they were to harbor retributivist views of criminal punishment.

Contextualized within the racial history of America’s criminal justice system, as well as the continued racial disparities in the criminal justice system, the results of our empirical study have wide-ranging implications for legislative enactments, constitutional challenges to harsh punishment practices, and even for the reduction of excessive force against civilians in the context of policing.

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