Student Commentary by D.A. Clay
If racial bias were an exceptional occurrence and if it were largely composed of conscious hostility towards persons of other races, then we would expect that in an “ordinary” decision determining the “facts” of guilt, prejudice would be much less likely to operate than in a decision regarding how to punish a person. But these assumptions are both empirically wrong: race affects the thinking of virtually everyone in this society, and for more and more people, this influence is neither conscious nor motivated by hostility.
The iconic symbol of the American legal system is the Statue of Justice. Depicting a blindfolded woman balancing a pair of scales, it personifies the message that justice ignores the personal characteristics of her recipients. Although many Americans would like to accept this ideal as true, unfortunately it is not. As with so many other institutions in our society, the criminal justice system is not color-blind.
Still others would like to believe that the overt use of racism to secure criminal convictions has been exorcised from the criminal justice system. Nonetheless, as one commentator suggests, caution is warranted, since not all forms of racism are overt. To a large degree, subtle manipulations of courtroom behavior can transmit racist messages, thereby eliminating any need to express them verbally.
This Note discusses two distinct mechanisms through which these subtle forms of racism can influence jury verdicts. One mechanism is nonverbal behavior, the other attribution. In exploring each of these categories, the focal point will be studies that have analyzed and explained the impact of both nonverbal behavior and attribution on the decision-making process. Unfortunately, some of the effects will prove difficult, if not impossible, to eliminate; for example, many believe little can be done about the inherent prejudice a white juror brings to a rape trial involving a white victim and a black defendant. As its purpose, however, this Note highlights such bias as the first step toward minimizing or eliminating it. Thus, the Note aims to promote Lady Justice's ideal that an accused be convicted only for what he did, not simply for who he is.
About the Author
D.A. Clay.
Citation
67 Tul. L. Rev. 2335 (1993)