William & Mary Bill of Rights Journal


The killing of George Floyd by police officers in Minnesota inspired a summer of protests in 2020, followed by a call for racial reckoning and a professed commitment to reform criminal justice. Many have condemned the “systemic racism” reflected in countless demographic measures. From killings of unarmed men by the police at the front end of the criminal justice system to incarceration rates at the back end, the statistics show stark disparities along racial lines. These disparities are held up as evidence of racial bias in the system.

Statements about racial bias may be intended as an indictment of a “racist” criminal justice system. Others have disputed these accusations and argued that the evidence does not support a finding of systemic racism in policing. Understandably, the law enforcement establishment may hear complaints about racial bias or other forms of bias as a condemnation. If racism is “systemic” then it necessarily implies that the people who operate the system are racists, or at least they act in a manner that has racist results. Others, including law enforcement leaders, counter that any systemic racism does not likely flow from conscious behavior intended to mistreat minorities but from unconscious biases. A burgeoning literature has addressed implicit racial bias, which refers to biased views that a person may harbor unconsciously. This research demonstrates that people can act in a racially biased way without realizing it. However, to ascribe disparities in the system to unconscious bias does not much soften the perceived condemnation.

This Article calls for a change in perspective. Rather than view bias as an accusation or moral flaw, criminal justice officials should instead consider it as scientists do—as an inevitable source of error to be minimized so as to produce outcomes that better reflect objective truth. Many types of bias can threaten the validity of basic scientific research, such as drug testing, and biases can introduce unwarranted disparities in the clinical practice of medicine as well. Scientists strive to identify possible sources of bias and then to find demonstrably effective methods for reducing those biases. Minimizing bias in scientific endeavors is simply a form of quality control. The practice of medicine also provides a highly relevant parallel for the legal profession in that wide racial and ethnic disparities have plagued the health care system, such as in the area of pain treatment. This Article explores the data on racial and ethnic disparities and the various interventions recommended both for medical professionals at the micro level as well as systemic reforms at the macro level.

Next, this Article highlights recent guidance from the National Council of State Courts regarding those intervention techniques that it found to be most effective in reducing implicit bias in criminal justice. We also briefly summarize proposals made by legal scholars calling for the use of blinding and other techniques at various key points in the criminal justice process. Finally, this Article describes the efforts of two California District Attorneys’ offices to employ artificial intelligence blinding technology to reduce implicit bias in prosecutorial charging decisions. Our survey of the studies and pilot projects applying scientifically developed strategies for reducing implicit bias demonstrates that leaders in the criminal justice arena have only begun the search for effective remedies, but much work remains to be done if we ever hope to reduce unwarranted disparities and achieve true justice.

This abstract has been adapted from the author's introduction.