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51 Am. Crim. L. Rev. 689 (2014)
Blind Injustice: The Supreme Court, Implicit Racial Bias, and the Racial Disparity in the Criminal Justice System

handle is hein.journals/amcrimlr51 and id is 719 raw text is: NOTES BLIND INJUSTICE: THE SUPREME COURT, IMPLICIT RACIAL BIAS, AND THE RACIAL DISPARITY IN THE CRIMINAL JUSTICE SYSTEM Tyler Rose Clemons* The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. This statement by Chief Justice John Roberts in 2007 is alluring in both its grammatical symmetry and its logical simplicity. Yet it encapsulates the naivete of the view of racial discrimination currently held by the majority of the justices of the Supreme Court of the United States. Chief Justice Roberts's assertion contains the implied assumption that the only racial discrimination that exists-or at least the only kind that matters under the Constitution-is explicit and susceptible to conscious control. Decades of psychological research has demonstrated that the most insidious form of racial bias is actually implicit and subconscious, however.2 Moreover, research has consistently shown that such racial bias-termed implicit racial bias by the psychological literature-is capable of affecting conscious behavior and exists independently of individuals' conscious and explicit beliefs about racial equality.3 By clinging to an outdated and incomplete definition of racial discrimination, the Court has made a series of decisions that have permitted and exacerbated the damage that implicit racial bias wreaks on racial minorities. The most dramatic and devastating mark of implicit racial bias on the black American community is the racial disparity that permeates every level of the * J.D. Candidate, Georgetown University Law Center, 2015; B.A., University of Mississippi, 2006. I owe special thanks to Marc Mauer of The Sentencing Project for introducing me to the concept of implicit racial bias and facilitating my research during the summer of 2013; to Michelle Alexander for sparking my interest in the racial disparity in the criminal justice system; to Professor David Cole for providing me with the constitutional framework to understand these issues; to the staff of the ACLR for their patience and helpful edits and questions; and to my parents, Jackie and Johnny Clemons, for instilling in me the knowledge that justice is what love looks like in public. © 2014, Tyler Rose Clemons. 1. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007). 2. See, e.g., Siri Carpenter, Buried Prejudice, ScI. AM. MIND, Apr.-May 2008, at 33. 3. See Timothy D. Wilson et al., A Model of Dual Attitudes, 107 PSYCHOL. REV. 101, 102 (2000) (explaining how individuals can harbor implicit biases distinct from their explicit attitudes); Susan T. Fiske & Steven L. Neuberg, A Continuum of Impression Formation, from Category-Based to Individuating Processes: Infuences of Information and Motivation on Attention and Interpretation, in 23 ADVANCES IN EXPFERIMENTAL SOCIAL PSYCHOL- OGY 1, 2 (Mark P. Zanna ed., 1990) (explaining how implicit biases influence the formation of conscious thoughts and behavior). 689