African American men are significantly more likely to be incarcerated than either white or Hispanic men, and throughout the American criminal justice system, black Americans face a significantly greater chance of arrest, conviction, sentencing, and incarceration than white Americans. It is likely that soon, one third of African American men will have spent time in prison. (1) While there are many reasons for this disparity, implicit racial bias plays a role at each stage of the criminal justice system. From investigation through arrest, plea negotiation and trial, those responsible for keeping the peace and administering justice must make decisions rapidly, and with imperfect or incomplete information. In that context, implicit racial bias results in significant disparity in racial outcomes. (2) The effects of implicit racial bias tend to be most pervasive in situations where an overworked and overburdened individual must make a decision that impacts an individual of a different race. While it impacts many individuals at all levels of the criminal justice system, the effect of implicit bias on the work of public defenders, as they struggle to manage challenging caseloads, is especially noteworthy. Public defenders across the country are burdened by unrealistically heavy workloads, requiring them to triage and make complex decisions rapidly and often without all relevant facts. Unbeknownst to them, they often are influenced by subconscious bias as they make these decisions.
This Note will seek to define the problem of implicit racial bias and its impact on defendants represented by a public defender, and shall seek to identify ways to mitigate these problems. Part I of this Note will introduce the idea of implicit racial bias, and Part II will discuss the studies on the impacts of implicit racial bias in the criminal justice system. Part III of this Note will examine why implicit racial bias poses a particular problem in public defender offices. In Part IV, this Note will discuss ways to reduce the impact of implicit racial bias on defendants represented by a public defender, including an examination of current ethics rules, and proposals for specific implicit racial bias training for public defenders.
It is possible to mitigate the negative impacts of implicit racial bias on black defendants by combining a series of tactics, including a reduction in public defender caseloads, amending ethics rules to better address the tension between voluminous caseloads and the duty to provide effective representation, and enhanced training for public defenders with a focus on the issue of implicit racial bias. While there is no single solution to the problem of implicit racial bias in public defender offices, a combination of these efforts should serve to reduce the impact that implicit racial bias has on black defendants who are represented by a public defender.
I. WHAT IS IMPLICIT RACIAL BIAS?
As trial consultant Richard Gabriel described, our ability to accept people whom we perceive to be different from ourselves is a recent development in human history. Gabriel notes that our suspicion of "the other" has dominated human history....
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