35 Seattle U. L. Rev. 795 (2011-2012)
The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion

handle is hein.journals/sealr35 and id is 819 raw text is: The Impact of Implicit Racial Bias on the Exercise
of Prosecutorial Discretion
Robert J. Smith & Justin D. Levinson*
The disproportionate incarceration of minorities is one of the Amer-
ican criminal justice system's most established problems. In spite of a
societal backdrop in which descriptive claims of a post-racial America
prosper, the problematic racial dynamics of criminal justice persist. The
numbers are stark and clear: one out of every twenty-nine black adult
women and men are currently incarcerated compared with only one out
of every 194 whites.' But less clear are the causes of these disparities.
For decades, scholars have struggled to understand why America prose-
cutes and incarcerates minorities at such massive rates. Perspectives on
this troubling issue cover an incredibly wide range of themes, spanning
from racist discussions of biological differences to thoughtful consid-
erations of structural racism. A scientific revolution, however, has gener-
ated new interest with regard to how upstanding people-including judg-
es, jurors, lawyers, and police-may discriminate without intending to do
so. This implicit bias revolution has created new opportunities to empiri-
cally investigate how actors within the legal system can perpetuate dis-
crimination in ways that have been-until now-almost impossible to
The topic of implicit racial bias in the legal system is extraordinari-
ly broad, and scholars are beginning to consider how it might illuminate
inequality across a range of legal domains.2 In the criminal law setting, in
Robert J. Smith is Visiting Assistant Professor of Law at DePaul University. Justin D. Levinson is
Associate Professor of Law and Director of the Culture and Jury Project at the William S. Richard-
son School of Law, University of Hawai'i.
PROJECT, ONE IN 100: BEHIND BARS IN AMERICA 2008 34 tbl.A-6 (2008), http://www.pew
centeronthestates.org/uploadedFiles/8015PCTSPrisonO8_FINAL_2-1-I_FORWEB.pdf (aggregat-
ing numbers for all fifty states). For younger adults, the numbers are similarly startling. See id. One
out of every nine black males between ages twenty and thirty-four are incarcerated. Id.
2. See generally IMPLICIT RACIAL BIAS ACROSS THE LAW (Justin D. Levinson & Robert J.
Smith eds., forthcoming 2012) (considering implicit racial bias across fourteen different legal do-


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