The Yale Law Journal

VOLUME
126
2016-2017
NUMBER
3
January 2017
564-907
Review

Systemic Triage: Implicit Racial Bias in the Criminal Courtroom

L. Song Richardson

Crook County: Racism and Injustice in America’s Largest Criminal Court

By Nicole van cleve

Stanford university press, april 2016

author. Professor of Law, U.C. Irvine School of Law. A.B. Harvard College, J.D. Yale Law School. I wish to thank Rick Banks, Erwin Chemerinsky, Beth Colgan, Sharon Dolovich, Ingrid Eagly, Jonathan Glater, Kaaryn Gustafson, Maximo Langer, Stephen Lee, Sasha Natapoff, Priscilla Ocen, Kevin Lapp, Eric Miller, Richard Re, Christine Scott-Hayward, Carroll Seron, and Bryan Sykes, for valuable feedback. I am also grateful to members of The Yale Law Journal, particularly John Ehrett, Hilary Ledwell, Aaron Levine, Diana Li, and Anna Mohan for their thoughtful comments and editorial suggestions.


Introduction

The criminal justice system is broken. Its policies and policing practices flood courtrooms in urban environments with too many cases to handle given available resources. Many are cases involving indigent individuals of color accused of nonviolent offenses. Scholars like Sasha Natapoff, Jenny Roberts, and Issa Kohler-Hausmann are bringing much needed attention to this serious issue, focusing primarily on misdemeanor adjudications.1

In a groundbreaking new book, Crook County: Racism and Injustice in America’s Largest Criminal Court, Professor Nicole Gonzalez Van Cleve2 adds an important, novel dimension to this problem. She exposes the deeply flawed operation of the criminal justice system by focusing on how felonies are processed in Cook County, Illinois. Her disturbing ethnography of the Cook County-Chicago criminal courts, the largest unified criminal court system in the United States,3 is based upon 104 in-depth interviews with judges, prosecutors, public defenders, and private attorneys; her own experiences clerking for both the Cook County District Attorney’s Office and the Cook County Public Defender’s Office; and one thousand hours of felony courtroom observations conducted by 130 court watchers.4 This mix of perspectives, all of which focus on the court professionals “whose actions define the experience and appearance of justice,”5 provides a chilling account of how racialized justice is practiced in the Cook County criminal justice system, despite the existence of due process protections and a court record. By “turn[ing] the lens on those in power as they do the marginalizing,”6 Van Cleve reveals how judges, defense lawyers, and prosecutors transform race-neutral due process protections into the tools of racial punishment.

An important theme of Van Cleve’s book is that the racism practiced in the Cook County courts is not “more enigmatic than the overt racism of the past.”7 Rather, it is equally “pervasive, direct, and violent.”8 To substantiate this point, she exposes deeply problematic and explicitly racist practices that courtroom actors engage in, despite holding seemingly contradictory perspectives. This is one of the more compelling aspects of her book, since it is unusual to encounter such blatant racism on display in this ostensibly colorblind and post-racial era. She explains how these actors “claim their behavior as ‘colorblind’ through coded language, mimic fairness through due process procedures, and rationalize abuse based on morality—all while achieving the experience of segregation and de facto racism.”9

In this Review, I complicate the theory of racism underlying Van Cleve’s ethnography. Although she never states this explicitly, her theory rests on the assumption that racial bias is visible and conscious, even if expressed in ways that mask its presence. This is demonstrated not only by the examples she uses, but also by the book’s conclusion, which encourages readers to go to court to observe the racist practices she describes and thus shame courtroom actors into changing them.

However, I argue that the problem of racial bias is not so limited. Rather, research from the past several decades reveals that implicit racial biases can influence the behaviors and judgments of even the most consciously egalitarian individuals in ways of which they are unaware and thus unable to control. Additionally, the effects of implicit biases may not be open and obvious. Importantly, then, the absence of discernible racism does not signal the absence of racial bias. Furthermore, since it is not possible to detect the influence of implicit biases on decision making simply through observations and interviews, it is difficult to ferret out and even more difficult to address. Yet, the absence of overtly racist practices does not make the problem of racial bias any less concerning.

Despite the fact that implicit biases operate in the shadows, I argue that there is strong reason to suspect that they will influence the judgments of courtroom actors in Cook County, even after blatantly racist practices disappear. This is because criminal courthouses in jurisdictions across the country, including those in Cook County, are bearing the brunt of “tough on crime” policies and policing practices that disproportionately target enforcement of nonviolent and quality of life offenses in indigent, urban, and minority communities. These policies and practices burden the system with more cases than it has the capacity to handle, resulting in what I refer to as systemic triage.

Triage denotes the process of determining how to allocate scarce resources. In the criminal justice context, scholars typically use the term triage to describe how public defenders attempt to distribute zealous advocacy amongst their clients because crushing caseloads limit their ability to zealously represent them all.10 In this Review, I build upon my prior work examining public defender triage11 and use the phrase systemic triage to highlight that all criminal justice system players are impacted by such expansive criminal justice policies and policing practices—not only public defenders, but also the entire cadre of courtroom players, including prosecutors and judges.

I argue that under conditions of systemic triage, implicit racial biases are likely to thrive. First, these criminal justice policies and policing practices will strengthen the already ubiquitous association between subordinated groups and crime by filling courtrooms with overwhelming numbers of people of color. Second, implicit biases flourish in situations where individuals make decisions quickly and on the basis of limited information, exactly the circumstances that exist under systemic triage. In sum, the problem of racial bias will likely persist under conditions of systemic triage, even when it is not accompanied by patently racist behaviors. This problem is even more pernicious because its subtle nature makes it more challenging to expose and correct.

This Review proceeds in three parts. Part I summarizes and analyzes Van Cleve’s ethnographic evidence and conclusions. Importantly, because her account is primarily qualitative, I cannot quantify the frequency with which the problematic practices she identifies occur nor determine how representative her examples are. Part II argues that racism in the criminal justice system is more problematic and pernicious than even Van Cleve’s account suggests. Relying on social science evidence demonstrating the existence of implicit racial biases, I argue that these biases can influence the discretionary decisions, perceptions, and practices of even the most well-meaning individuals in ways that are not readily observable. We should be especially concerned about implicit bias in courtrooms experiencing systemic triage. Finally, Part III offers some solutions to reduce the racialized effects of systemic triage.

i. racism in practice

Van Cleve’s haunting ethnography argues that the existence of “myriad due process protections, legal safeguards, and a courtroom record supposedly holding judges and lawyers accountable”12 does little to prevent racism from manifesting in the criminal courtrooms of Cook County. Rather, her work reveals how these courts are “transformed from central sites of due process into central sites of racialized punishment.”13 This punishment takes multiple forms, including treating people of color as criminalseven when they are members of the public appearing in court as jurors, witnesses, or researchers;14 ridiculing defendants with stereotypically black-sounding names;15 mocking the speech patterns of black defendants by employing a bastardized version of Ebonics;16 using lynching language during plea negotiations;17 and subjecting people of color to degrading and humiliating treatment.18 Van Cleve argues that courtroom actors also routinely punish defendants of color for attempting to exercise their due process rights.

Evidence from her ethnography reveals that judges, prosecutors, defense lawyers, and sheriff’s deputies engaged in these racialized practices. Even more disturbingly, bad racial actors were not the only ones to treat people of color more harshly.19 Van Cleve’s ethnography would be slightly less chilling if this were the case because then one could take some comfort knowing that the problems would disappear once all the bad apples were removed from the system. However, Van Cleve’s observations foreclose this simplistic account. Rather, she includes examples of even well-meaning judges, prosecutors, and defense lawyers participating in and sustaining this system of racial punishment.

The obvious question is how can actors who “subscribe to the principles of due process, . . . learn ethical standards in law school[,] . . . speak in sympathetic ways about justice, fairness, colorblindness, and even identify bias in the system,” engage in and rationalize their racialized practices?20 As I discuss in Section I.A, Van Cleve argues that racism in the courts is accomplished through a process of acculturation that begins at the courthouse doors with sheriff’s deputies enforcing racial boundaries. In Section I.B, I present Van Cleve’s assessment of how this racialized culture is maintained through the aggressive policing and harsh treatment of anyone, including courtroom actors, who fails to observe its practices.21 I also describe Van Cleve’s explanation for how judges, prosecutors, and defense attorneys rationalize their racist behaviors by divorcing their perspectives from their practices or “duties” within the system. It is in this way, she argues, that they deflect blame, assuage their guilt, and abdicate responsibility for their role in maintaining the system of racialized punishment. Finally, Section I.C explores some limitations of her powerful and disturbing account.

A. Policing Racial Boundaries

Van Cleve suggests that the “double system of justice”22 that exists in Cook County begins as defendants, family members, jurors, and witnesses arrive at the courthouse during the morning “rush hour.” She argues that armed sheriff’s deputies, who are the first institutional players the public encounters, begin the process of teaching people of color that they are second-class citizens within this space.23 To support this point, she shares accounts of court watchers who observed deputies single out people of color for racial mockery and disrespect, making white court watchers acutely aware of their white privilege.24 She explains that some white court watchers, no matter how they were dressed, reported being asked why they were there and whether they were lawyers or students, while some black court watchers “were mistaken for defendants and treated like criminals.”25

She also provides anecdotes of sheriff’s deputies continuing to police racial boundaries in the courtrooms by subjecting people of color to hostile and disrespectful treatment for actions as simple—and reasonable—as daring to ask questions. When Van Cleve was a clerk in the prosecutor’s office, she observed an incident that occurred when an elderly black woman attempted to ascertain where her son’s case would be heard. The deputy “tore the woman up with insults” and finally stated to a prosecutor walking into the courtroom, “Tell her: ‘Your son is executed.’”26 In contrast, Van Cleve also observed the different treatment of an older, gray-haired white woman—wearing a diamond wedding ring and sporting “perfectly coiffed” hair and “manicured and pristine” nails—who crossed the barrier separating the gallery from the courtroom to talk to the court clerk. This woman “was able to finish her question, was answered respectfully, and then the sheriff kindly told her to sit down—acting more like an usher than the abuser who had been barking at the public all afternoon.”27 These are just a few of the disturbing examples of sheriff’s deputies demeaning people of color while treating the few privileged whites who appeared in the courthouse differently.

Van Cleve’s book does not share a single story in which courtroom actors chastised deputies for the hostility and aggressiveness they heaped on people of color. Instead, she argues that courtroom actors were socialized within the courthouse culture to avoid commenting on racial abuse and racial divides.28 This is discussed next.

B. Culture and the Race Blind Code

Sheriff’s deputies were not the only courtroom actors to engage in racist behaviors. Van Cleve shares anecdotes of judges, prosecutors, and defense lawyers helping to create and sustain a system of racial punishment. Based on her ethnographic evidence, she explains that courtroom professionals learn to code race out of the picture by conflating criminality, morality, and race. This is done primarily by labeling certain defendants as “mopes,” a construct that implies immorality.29 The term is used by courtroom actors to refer to “someone who is uneducated, incompetent, degenerate, and lazy.”30 According to her, mope is a synonym for “nigger.”31

Defendants who were labeled mopes were typically charged with nonviolent offenses, such as possession of drugs and shoplifting, that “imply social dysfunction rather than criminal risk.”32 Because these defendants were overwhelmingly black and brown, “the moral rubric applied to defendants by courtroom professionals” was racially inscribed.33 As such, the “‘immorality’ of defendants . . . is both a criminal distinction and a racial one . . . .”34 Van Cleve argues that by using this colorblind logic, courtroom professionals convinced themselves that the “disdain” they showed to people of color was “not based upon the color of their skin but upon the moral violations they embody.”35 She concludes that this “race-blind” code “allow[ed] racism to exist in the courthouse space without professionals being ‘racists.’”36

Defendants labeled as mopes received “due process for the undeserving.”37 This entailed “(1) the streamlining of scripted due process requirements, (2) the curtailing of due process through informal sanctions that are often not part of the court record, and (3) the absolute exclusion of mopes from participation in the legal process—even in cursory ways mandated by law.”38Van Cleve shares stories of courtroom actors punishing those labeled as mopes for attempting to exercise their due process rights. In one disturbing example, Van Cleve overheard a sheriff’s deputy bragging to prosecutors about wrapping an electrical cord around a defendant’s seat, plugging it into the wall to feign an electric chair, and saying, “OK, you’re all plugged in and ready to go.”39 This was done simply because the defendant had asked for a jury trial.40Prosecutors “laughed, and never questioned the legal ethics of such a practical joke.”41 White defendants, she argues, were generally not subjected to the same treatment,42 unless they “perform[ed] underclass whiteness” through their speech patterns or demeanor.43

One of the most important aspects of Van Cleve’s ethnography is her explanation for how racism becomes entrenched in institutional culture such that it persists regardless of “the racial identity and political leaning of any one person at the helm.”44For instance, some prosecutors expressed serious misgivings about the way the system treated criminal defendants, and some of them also viewed drug laws as draconian.45 Ironically, one prosecutor even critiqued the “factory mill” practices of the system, which was only concerned with disposing of cases as quickly as possible.46Yet, based on their statements during interviews, Van Cleve concludes that prosecutors learned to rationalize their racialized behaviors by separating their perspectives from their practices.47 They viewed their practice of law as a “duty” that did not necessarily reflect their actual beliefs.48Additionally, she found that prosecutors justified the curtailment of due process rights by convincing themselves that spending time on cases involving mopes “literally obstructs ‘real justice’”49 by taking resources away from the important cases involving serious crimes with actual victims.50 Their incentive was to resolve their cases as quickly as possible because due process for mopes, in the words of one prosecutor, was “a waste.”51

Similarly, defense lawyers were sympathetic to “the plight of defendants,” “provide[d] critiques about substantive justice and the abuse of defendants by prosecutors and judges,”52 and commented on the obvious racial disparities and divisions in the ways prosecutors and judges treated their indigent clients.”53 Yet, they too engaged in racialized practices. This occurred because defense lawyers learned that “[t]here were dire consequences for fighting too hard, pursuing ‘too many’ motions and trials, or pushing due process necessities beyond the absolute minimum.”54 Defense attorneys who engaged in vigorous and zealous advocacy often “were labeled ‘clueless,’ ‘difficult,’ ‘incompetent,’ or worse: ‘mopes,’”55 and were humiliated and punished in ways that were not reflected in the court record.56For example, one attorney was locked up with her client.57 Additionally, the clients of defense attorneys who engaged in zealous advocacy were sometimes punished with harsher treatment.58

As a result of this socialization, one defense lawyer explained that he had to carefully weigh how much capital he expended on a client because capital was “finite and scarce.”59 He had to “determine whether a defendant [wa]s worth the fight”60 by separating those who were “native” to the system from the “tiny subset of outliers” who deserved zealous advocacy.61 He deflected personal responsibility for the problematic choices he made, saying that “these are the sorts of decisions you find yourself having to make as a practical matter because that’s the system that exists and [it’s] bigger than you.”62

In sum, Van Cleve’s book explains how criminal justice system professionals dispense, legitimize, and defend racialized justice. She argues, “Colorblind racism is more than just a ‘doing’ of rhetoric; it is a type of complicated habitus that informs institutional practices and cultural memberships, and even aids in the organizational efficiency of the criminal courts . . . . [This is] how professionals . . . ‘do racism’ while ‘doing justice.’”63Her own efforts to fit into the system and maintain her privileged access within it powerfully underscores the importance of entrenched institutional culture to sustaining racial disadvantage.64 She describes her time embedded in the Cook County criminal justice system as “an indoctrination: the prosecutors, judges, and defense attorneys took me under their wings. It was through this process that I learned the rules of the racialized court system—rules that included both how to process cases efficiently and the proper moral and professional justifications for such practices.”65

C. Limitations

Van Cleve’s account of how racism is practiced in the era of colorblindness is important and compelling. However, it is limited by a number of features typical of ethnographies. First, her observations are not necessarily generalizable to jurisdictions beyond Cook County.66 Second, the absence of quantitative evidence makes it difficult to determine how frequent, representative, and pervasive the overtly racialized practices she exposes are.67 Including some explanation of how she coded her data and how she determined which stories to include and exclude, as well as sharing the complexity of her evidence by discussing cases that did not fit neatly into her theory, could have helped address some of these problems and allowed readers to more readily evaluate her claims.

However, despite these limitations,there are reasons to believe that her qualitative accounts are representative of the culture of the Cook County criminal courts. Her ethnographic evidence is the result of nine months of observations collected over the course of seven years (1997-2004);68 interviews she conducted during the same period; 104 interviews conducted by others in 2006;69 and data collected by 130 court watchers from 2008-09.70 Thus, her data “incorporate[] multiple vantage points on the same site”71 and span over twelve years. Furthermore, the observations remain consistent over this period of time. All of this provides support for the pervasiveness of the practices she recounts and lends some external reliability to her findings.72 Additionally, the lack of quantitative evidence is not a reason to dismiss her compelling conclusions. As one of the great ethnographers, Howard Becker, once observed in a classic article, qualitative methods “do not lend themselves to . . . ready summary”73 and “frequently consist of many different kinds of observations which cannot be simply categorized and counted without losing some of their value as evidence.”74

Overall, the importance of Van Cleve’s ethnography is its exposure of how some courtroom professionals in Cook County practice and rationalize racism in the era of colorblindness. She explains how racism thrives despite constitutional safeguards and courtroom actors who are well versed in ethics and who often hold perspectives that are consistent with notions of fairness, equality, and justice.75 Van Cleve’s account of racism in the Cook County criminal courts is concerning and important to expose even if it is difficult to determine how pervasive these overtly racialized practices are.

In Part II, my goal is to supplement Van Cleve’s account of how racial bias operates. Van Cleve concludes that the practice of racism in Cook County is virtually indistinguishable from the racist practices of the Jim Crow era.76 In support of this theory, she only shares examples of courtroom actors engaging in overtly problematic racialized practices in cases involving individuals labeled as mopes.77 By restricting her examples, her account leaves the impression that the problem of racism in Cook County is limited to that which is overt, explicit, and conscious.However,in Part II, I argue that racism in the criminal justice system is even more problematic. Relying on social science evidence demonstrating the existence of implicit racial biases, I contend that explicitly racist practices are not the only form of racism about which we should be concerned. Rather, implicit racial bias can also influence the discretionary decisions, perceptions, and practices of even the most well-meaning individuals in ways that are not readily observable. Thus, my theory of racism is broader than one that focuses solely on the overt racism Van Cleve exposes. While her account of explicitly racist conduct is deeply troubling, I argue that the problem of implicit racism is even more pernicious.

ii. Systemic triage and its racialized consequences

Judges, prosecutors, and defense lawyers in many criminal courtrooms across the country are laboring under the weight of far too many cases to give each one individualized treatment. This has systemic consequences as these professionals struggle to quickly sort defendants into those who are deserving of time and attention and those who are not, a process I describe as systemic triage. As I will explain, racialized justice is a foreseeable consequence of systemic triage because of the influence of implicit, i.e. unconscious, racial biases on behaviors, perceptions, and judgments. Section II.A summarizes the well-established social science research on implicit racial biases. Section II.B sets forth my theory of systemic triage. Finally, Section II.C argues that under conditions of systemic triage, even well-meaning, consciously egalitarian actors will likely engage in practices that sustain significant and problematic racial disparities.

A. Implicit Racial Bias

Research demonstrates that many of our decisions result from mental processes that occur without our conscious awareness, intent, and control.78 These processes help us to cope with all the information that confronts us by makingquick, automatic, and unconscious associations in response to a stimulus.79For instance, we might automatically and unconsciously associate “nurse” with “compassion” and “hospital.” These unconscious associations can influence our perceptions, judgments, and behaviors without our conscious intent.

Implicit racial biases refer to the unconscious stereotypes and attitudes that we associate with racial groups.80 These biases are pervasive and can influence real world behaviors. For instance, a meta-analysis of 122 implicit bias studies found evidence that implicit racial biases predict racial disparities in employment and healthcare.81

There is copious evidence that individuals of all races have implicit racial biases linking blacks with criminality82 and whites with innocence. In a recent article, Professors Robert Smith, Justin Levinson, and Zoë Robinson coined the phrase “implicit white favoritism” to distinguish it from unconsciously negative racial attitudes and beliefs toward people of color.83 They define implicit white favoritism as “the automatic association of positive stereotypes and attitudes with members of a favored group, leading to preferential treatment for persons of that group.”84Their analysis of existing studies reveals that white men are unconsciously “disassociated with violence” and associated with positive, law-abiding behavior.85 Implicit racial biases areactivated by cues present in the environment such as skin color.86Once activated, they can influence the behaviors and judgments of even the most egalitarian individuals in ways that sustain problematic and unwarranted racial disparities.87

The influence of implicit biases on behaviors and judgments is not inevitable, however. Rather, certain environments are more conducive to their operation than others. Implicit biases flourish in situations where information and time are limited, decision makers are mentally drained and distracted, and decision making is highly discretionary.88 As I will discuss next, these conditions exist under systemic triage.

B. Systemic Triage

Under an ideal model of criminal justice, courtroom professionals would have sufficient resources to give time and attention to every case. However, today’s criminal justice system operates very differently. In large urban environments like Cook County, public defenders, prosecutors, and judges are inundated with far more cases involving nonviolent offenses than they are equipped to handle. This makes it difficult to give each individual accused of misconduct the care and consideration he or she deserves and is constitutionally entitled to receive.89 For instance, public defenders in Rhode Island each handle more than 1,700 cases per year, on average. The equivalent figures for individual public defenders in Dallas and Arizona are 1,200 and 1,000 respectively.90 A recent article reports that “in upstate New York, one attorney represented over 2,200 clients; and in Illinois, a public defender handled 4,000 cases during the course of a year.”91 These excessive caseloads impact defense lawyers, prosecutors, and judges alike,92 creating pressure on each of these courtroom actors to engage in triage—the process of allocating scarce resources.

Typically, analysis of triage within the criminal justice system is focused on public defender offices. Scholars have discussed how public defenders attempt to distribute zealous advocacy amongst their clients since crushing caseloads prevent them from providing it fully to all clients.93 As Phillip Atiba Goff and I previously observed,

[T]he provision of indigent defense is often likened to medical triage. Similar to hospital emergency rooms, [public defender] offices face demands that far outpace their resources. In order to save time to defend the cases that they find deserving, attorneys may plead out other cases quickly or go to trial unprepared. This reality means that for most [public defenders], the question is not “how do I engage in zealous and effective advocacy,” but rather, “given that all my clients deserve aggressive advocacy, how do I choose among them?”94

Despite this robust discussion of public defender triage, however, little attention has been paid to the fact that judges and prosecutors also face intense pressure to quickly determine which cases can be resolved with little time and effort and which cases require or deserve the individualized attention associated with due process. I refer to this situation of pressurized decision making by all courtroom actors as systemic triage.

Systemic triage primarily results from criminal justice system policies and policing practices such as the War on Drugs and broken windows policing95 that overwhelm courtroom professionals with more cases involving nonviolent offenders than they have the capacity to handle. This creates pressure on these actors to develop shortcuts for determining who deserves due process and who does not. For instance, under conditions of systemic triage, prosecutors will not have time, in every case, to interview victims and witnesses, and to make careful and considered judgments about how to exercise their enormous discretion according to their ethical mandate as ministers of justice.96 Similarly, rather than providing effective and zealous advocacy to each of their clients by conducting investigations,97 communicating and developing relationships with clients,98 filing motions,99 researching the law, preparing for trials, negotiating pleas, and otherwise engaging in vigorous advocacy,100 defense lawyers instead will find ways to quickly determine when these time-consuming activities are necessary. Finally, judges will be constrained in their ability to carefully consider motions, ensure that defendants understand their rights, and make individualized sentencing decisions after careful review of the evidence.101

However, the concept of systemic triage does not simply consider the triage decisions of individual public defenders, prosecutors, and judges in isolation. Rather, it highlights the symbiotic nature of triage decision making, attending to how the resource allocation decisions of an actor in one institution, such as the prosecutor, influences the workload of actors in the other institutions, i.e. public defenders and judges. For instance, a defense lawyer’s decision to take a case to trial does not simply increase her workload; it also has consequences for prosecutors and judges. As a result of the defense lawyer’s decision, the prosecutor will have to devote time and resources to tasks such as becoming familiar with the evidence and responding to motions. Similarly, judges will have to dedicate time to reviewing pleadings, issuing rulings, and overseeing jury selection, to name a few of the tasks associated with trials.

Systemic triage pays attention to this interdependent relationship amongst institutional actors. It highlights the fact thatwhilethe pressure created by systemic triage comes chiefly from the overwhelming number of cases that flood the system, it also stems from the resource allocation decisions of all actors within the system. Thus, each individual actor, i.e. each prosecutor, defense lawyer, and judge, has a vested interest in overseeing how the others exercise their discretion.

For this reason, attending solely to the triage decisions of one individual institutional actor, such as the prosecutor, is insufficient to understand the systemic effects of triage. Rather, each institutional actor will police the resource allocation decisions of the others. The policing of decisions across institutions can create a racialized culture if resource allocation decisions typically favor individuals of one race over another. For instance, courtroom actors will punish the decision to grant due process rights to an individual who they conclude is undeserving. As I discuss next, the decision that an individual is undeserving is more likely to occur when that individual is a person of color, due to implicit racial bias. Hence, under conditions of systemic triage, a culture of decision making within a courthouse that sustains racially biased decision making is predictable.

C. Implicit Bias Under Conditions of Systemic Triage

I theorize that racialized justice is the foreseeable consequence of systemic triage, regardless of the conscious racial motives of judges, prosecutors, and criminal defense lawyers, and even in the absence of overtly racist practices. That is because implicit racial biases are likely to impact decision making under conditions of systemic triage for a number of reasons. First, the proactive policing practices that create the conditions leading to systemic triage also result in the disproportionate representation of people of color in criminal courtrooms. Filling criminal courtrooms with overwhelming numbers of people of color will likely strengthen the already ubiquitous conscious and unconscious association linking people of color with crime and whites with innocence because simply rehearsing associations strengthens them.102 Strengthening these associations can occur even if many of the cases are dismissed103 and even if judges, prosecutors, and defense lawyers understand on an intellectual level that this disproportionate representation is the predictable result of focusing law enforcement efforts on communities of color.

Second, under conditions of systemic triage, prosecutors and defense lawyers are likely anxious and distracted by all of the tasks simultaneously pulling at their attention, such as listening to the judge, negotiating with opposing counsel, quickly reviewing case files, thinking about what they will say when their cases are called, and answering questions from clients or witnesses. This multitasking can cause cognitive depletion, which is one of the classic situations in which implicit biases are likely to influence decisions and judgments.104

Additionally, because courtroom actors handle large numbers of cases, they will feel compelled to make quick decisions in the face of enormous information deficits about which cases can be disposed of quickly and which cases are worthy of time and effort. For instance, prosecutors may offer plea bargains and pressure defense lawyers into convincing their clients to accept them despite the fact that neither actor had the time to thoroughly investigate the case and interview all the potential witnesses.105 Implicit biases are more likely to influence judgments when individuals make discretionary decisions quickly, based upon incomplete information.106

Implicit racial biases can affect decision making in ways that create and sustain problematic racial disparities. For instance, these biases can cause people to interpret ambiguous information in racially disparate ways. In one study demonstrating this, mock jurors were asked to evaluate evidence that was ambiguous as to guilt or innocence.107 The results showed that as a result of implicit racial biases, jurors were significantly more likely to conclude that the evidence was probative of guilt when the case involved a dark-skinned perpetrator versus a light-skinned perpetrator.108 In another study involving an assault, mock jurors were more likely to conclude that the defendant was less aggressive and “more honest and moral” when he was white as opposed to black.109 These differences in judgment were correlated with implicit bias.

Under conditions of systemic triage, it is probable that implicit racial biases will cause judges, prosecutors, and defense lawyers to draw adverse inferences from ambiguous facts more readily when defendants are black, especially when nonviolent offenses involving drugs are at issue, since young black men are closely associated with drugs in our conscious and unconscious minds.110 Thus, the confluence of a black defendant and a drug charge will likely make it cognitively easier to form a judgment that the defendant is guilty and will not benefit from more process. Conversely, when the defendant is white, implicit white favoritism will likely make judgments of guilt more difficult, resulting in the decision that due process will make a difference to the case.

Furthermore, implicit biases can also influence feelings of empathy. Empathy sensitizes people to injustice111 and plays an important role in discretionary decision making. In one study, for instance, researchers found that people who felt more empathy for white defendants than black defendants would give white defendants more lenient sentences, even when everything else about the case was identical.112 Moreover, social scientists have found that there is a racial empathy gap, meaning that empathy for the pain experienced by another does not occur or occurs with less intensity when white subjects witness or imagine pain inflicted on black individuals.113 This empathy gap is related to levels of implicit racial bias.114 The more implicit anti-black bias subjects had, the greater was the difference in their empathic responses towards black and white individuals.115

Empathy can cause courtroom actors to take time to ensure that an individual’s due process rights are protected, to respond with more sympathy and listen with more care and attention to a defendant’s concerns, and to pay more attention to the circumstances of the case. Prosecutors and judges may respond more favorably to defense counsel’s arguments concerning mitigating circumstances and the hardships their clients might suffer as a result of incarceration. Empathy may also result in prosecutors being more willing to offer treatment or other rehabilitative options instead of incarceration, and judges being more willing to accept these recommendations. Empathy can also influence defense lawyers’ decisions about which clients are worthy of zealous advocacy and expending precious capital. However, because the conditions of systemic triage are likely to trigger implicit biases, courtroom actors might feel less empathy toward defendants of color. Thus, the benefits of empathy will accrue more to whites than blacks, resulting in significant racial disparities even in the absence of conscious bias and overtly racist behaviors. In fact, decision makers will be completely unaware that unconscious biases influenced their judgments.

The operation of implicit bias under conditions of systemic triage also explains how a courtroom culture can develop that routinely denies due process to black individuals and others stereotyped as criminal even in the absence of the type of overt and consciously biased decision making Van Cleve highlights in her book. Cook County is a paradigmatic case of systemic triage. As Van Cleve observes, “Cases bombard the system; the average felony prosecutor in Cook County has three hundred or more open cases at any one time,”116 and in 2005, each public defender resolved approximately 229 felonies, meaning that they likely worked on many more.117In one disturbing demonstration of how this pressure played out in perverse ways, Van Cleve describes an instance when sheriff’s deputies “act[ed] as go-betweens to update judges and courtroom workgroups on which court [was] ‘winning.’ One court watcher noted a judge screaming, “‘Let’s go! Do something!’ at his colleagues when there was a brief pause in a stream of plea bargains.”118

Additionally, the association between blacks and crime is well rehearsed in Cook County given the disproportionate number of people of color charged with nonviolent offenses.119Of the almost ten thousand individuals housed in the Cook County jail, approximately 86.3% are black and Latino men charged withnonviolent offenses.120 Van Cleve provides evidence of the strong conceptual association between blacks and crime that exists in Cook County.121 For instance, she describes courtroom actors becoming so accustomed to seeing black individuals within the courthouse that they become desensitized to the racial disparities that shocked them when they first encountered the system.122 The disproportionate representation of blacks in the criminal courthouse becomes natural and expected. Thus, even if the system in Cook County evolves to such an extent that judges, prosecutors, and defense lawyers no longer engage in race-conscious decision making that apportions due process rights based on whether or not someone is characterized as a mope,123 and even if overtly racist practices disappear, it is probable that implicit racial biases will continue to influence behaviors in racially problematic ways.

iii. Recommended remedies

Consistent with her theme that racism in the Cook County courts is akin to Jim Crow racism, Van Cleve ends her book by encouraging readers to go to court to observe the racist practices she describes. Doing so, she argues, is “a type of activism [that can] lend a conscience to an otherwise unaccountable system.”124 In Section III.A, I raise questions about the efficacy of her solution, and in III.B, I offer alternatives.

A. Problems with Court Watching

Van Cleve urges readers to help “rectify the . . . racial violence inflicted by the courts”125 by engaging in court watching. The practice of court watching can be a powerful tool to expose the workings of a court system that operates in the shadows,126 especially if courtroom actors do not realize that court watchers are there. Van Cleve’s ethnography is a testament to that. Additionally, if court watchers are open and obvious, their mere presence might lead judges, prosecutors, and defense lawyers to practice the professionalism that should accompany their role.

However, as a long-term solution to the problem of racial bias, court watching will be ineffective. One reason is that once court watchers leave, courtroom actors might revert back to their problematic behaviors. Van Cleve shares an instance of exactly this. When she was clerking at the prosecutor’s office, a prosecutor cautioned her to be on her “best behavior” after noticing a court watcher sitting in the gallery.127 Then the judge and prosecutor “began to ‘perform’ the normative professionalism that one would associate with their roles” until the court watcher left.128 Afterwards, they all burst out laughing.129

Additionally, court watching might even stymie efforts at addressing bias at the structural level ifpeople expect to witness overtly racist practices similar to the ones Van Cleve recounts.130 This is likely since she asks readers to “[r]eplicate my data until you change the findings in Cook County-Chicago and perhaps in other jurisdictions.”131 The problem is that court watchers may not encounter any of these racialized practices since judges, prosecutors, and defense lawyers may behave differently in their presence, preventing the watchers from getting an accurate view of the system. Furthermore, many of Van Cleve’s examples did not occur in open court, but rather during plea negotiations, in conversations with clients, or during interviews of courtroom actors. Such sources of information may not be available to the average court watcher. If people do not witness these practices, they may conclude that the system is no longer racially biased and that nothing more needs to be done to address racism in the criminal courts. However, as I argued in Part II, racial bias exists even when it is not discernible.

The problem of racial bias in the criminal justice system defies easy solutions. The influence of race on decision making will be difficult to flush out either because people may be unaware of the effect of implicit biases on their judgments or because they will hide their consciously racist beliefs. Furthermore, the enormous discretion wielded by prosecutors, defense lawyers, and judges facilitates racial bias, both conscious and implicit. The most effective solution would be to rethink the criminal justice policies and policing practices that not only create the conditions for systemic triage but also sustain the negative association between people of color and crime. Nevertheless, until that day arrives, there are some interim solutions that can help to safeguard against the influence of implicit racial biases. These are discussed next.

B. Individual, Institutional, and Systemic Solutions

The conditions of systemic triage allow implicit racial biases to thrive. Importantly, however, their effects are not inevitable. In this Section, I discuss some individual, institutional, and systemic mechanisms that together may help to reduce the influence of implicit biases on behaviors and judgments.

At the individual level, two interventions have proven promising: awareness of implicit bias132 and doubting one’s objectivity.133 Both of these interventions work by encouraging people to exercise care when making judgments and by helping people understand that their judgments might be biased even if they are not consciously aware of it.134 These tools are especially likely to be successful when individuals are internally motivated to reduce biased judgments rather than externally motivated by concerns that others will judge them.135

These interventions also highlight why the ideology of colorblindness is problematic. As Eduardo Bonilla-Silva argued in Racism Without Racists, at the heart of colorblind racism is the “myth” that “race has all but disappeared as a factor shaping the life chances of all Americans.”136Furthermore, this ideology allows “whites [to] enunciate positions that safeguard their racial interests without sounding ‘racist.’”137 To the extent that courtroom actors engage in colorblindness, it will stymie efforts to reduce the effects of implicit racial bias on behaviors and judgments.138In fact, in social science studies, colorblindness “has been shown to generate greater individual expressions of racial bias on both explicit and implicit measures.”139

One practical method for increasing awareness and encouraging people to doubt their objectivity is through training. Across the country, state and federal public defenders, prosecutors, and judges are being trained on what implicit biases are and how they can influence the decision making of even the most egalitarian individuals.140 In fact, people who hold perspectives that are genuinely egalitarian can be the perpetrators of biased conduct based on implicit bias, especially if holding these perspectives makes them less likely to question their objectivity. The Department of Justice recently made these trainings mandatory for prosecutors and law enforcement officers.141

In addition to awareness and questioning objectivity, other individual interventions such as slowing down decision making; engaging in mindful, deliberate information processing;142 and gathering more information can prevent reliance on implicit stereotypes and attitudes.143 The problem is that the pressure of systemic triage can make these interventions difficult to accomplish.144 However, engaging in triage is a choice, not a requirement. In fact, triage in the criminal justice context arguably violates constitutional and professional mandates. Thus, prosecutors and defense lawyers should refuse to bow to the pressure to resolve cases hastily simply to deal with the realities of an overburdened system.

Professor Jenny Roberts explains that defense lawyers could “refus[e] to process individuals quickly through the lower criminal courts” by “litigat[ing] some of the many factual and legal issues” raised by these cases.145 As for prosecutors, they should live up to their special responsibilities as “ministers of justice,”146 which require them, among other things, “to see that the defendant is accorded procedural justice.”147 Judges, too, should similarly avoid pressuring defense counsel and prosecutors to rush through jury selection and trials. Some may object to these proposals because giving defendants the individualized justice and zealous advocacy to which they are entitled will lead to longer delays and may also raise speedy trial concerns. However, the answer cannot be to simply continue to short circuit justice in the name of expediency. If giving defendants the process they are due leads the system to grind to a halt, then perhaps this will put pressure on criminal justice system decision makers to rethink the policing practices and criminal justice policies that create the conditions of systemic triage in the first place.

None of these interventions will be easy to accomplish. However, once people are aware that there are steps they can take to address implicit biases, the failure to do so is as culpable as acting on the basis of conscious racial bigotry.148 Judges, prosecutors, and defense lawyers should accept responsibility for taking steps to reduce the influence of implicit biases; otherwise they are complicit in continuing to sustain a racialized system. There is reason for optimism that some courtroom actors will engage in these efforts. For instance, Federal District Court Judge Mark M. Bennett attempts to reduce the effects of implicit racial biases on his sentencing judgments by stripping photos and all racial indicators from his presentence reports.149

While individual interventions are important, they must be accompanied by interventions at the institutional level in order to increase the chances of success. If this does not occur, it might be difficult for one individual to withstand the pressure to conform by speeding up case adjudications. For instance, Van Cleve relates how prosecutors and judges punished defense lawyers who attempted to engage in zealous advocacy.150 This is unsurprising given the symbiotic nature of systemic triage, where the resource allocation decisions of one actor influence the workload of the others. Thus, even if an individual public defender decides to slow down in order to safeguard against the influence of implicit biases on decision making, the pressure and formal and informal punishments that the individual will suffer from judges and prosecutors because of his or her efforts may result in that individual succumbing to the pressure.

The leaders of prosecutor and public defender offices can assist by making it clear that they will support the efforts of their line personnel to do what is necessary to ensure that they are living up to their ethical and constitutional obligations. This will help reduce the influence of implicit bias not only because it will give individuals the courage to resist the pressure to dispose of cases quickly, but also because people are motivated to conform their beliefs to those of the people around them.151 Thus, institutions should clearly communicate that making efforts to reduce the influence of implicit biases is important and provide institutional backing for those efforts. This will make individuals more likely to accept the punishment they might face from other institutional actors for refusing to engage in triage decision making and help them fight the pressure to practice racialized justice. Institutional support can also facilitate the creation of a cohort of like-minded individuals, making it easier to maintain one’s commitment to do what is necessary to address implicit biases.

Some institutions are already engaged in these efforts. For instance, San Francisco Public Defender Jeff Adachi has established safeguards in his office to reduce implicit biases’ pernicious effects. These safeguards include asking his attorneys to use checklists that require them to answer questions such as, “how would I handle this case different[ly] if my client was another race or had a different social background.”152 Additionally, one district attorney’s office in North Carolina has asked an implicit bias expert to embed herself in the office to help line prosecutors determine how to reduce the influence of implicit biases on their discretionary decisions.153 Both of these examples send the message throughout the office that the institution believes these efforts are important, thereby helping to motivate individuals to conform their behaviors to meet this expectation.

Finally, even if individuals and institutions make efforts to reduce the influence of implicit racial biases, the gold standard would be coordinated change among different arms of the criminal justice system—that is, the prosecutor’s office, the public defender’s office, and judges working together to address these biases. As I discussed in Part II, systemic triage attends to the interaction between criminal justice system institutions and the ways in which the resource allocation decisions of one influence the other. Thus, even if one institution encourages its personnel to engage in efforts to reduce implicit bias, the others might resist the increase in their workload that this might cause.

All three institutions should instead work together to ensure that the goal of efficiency does not override the important values of fairness, equality, and protection of constitutional rights. They should encourage each other to practice normative professionalism and pressure each other to align their practices with their beliefs in due process, legal ethics, and other values that likely motivated them to practice criminal law in the first place. If this occurred, it would slow down the system to such an extent that policymakers would be forced to confront the problem of overburdened courts and insufficient resources. This might provoke changes to current criminal justice policies and policing practices that not only create the conditions for systemic triage, but, by filling criminal courtrooms with individuals of color charged with nonviolent offenses, also help to strengthen the association linking black and brown individuals with crime and whites with innocence.

While it might sound unrealistic to think that institutions could work together to reduce implicit racial bias, aspects of this are already occurring in Seattle, Washington. A group consisting of two federal district court judges, the U.S. Attorney and an Assistant U.S. Attorney, the Federal Public Defender, an ACLU director and an ACLU staff attorney, two civil lawyers, and a law professor are working together to develop jury instructions and a jury orientation video to help address the probable effects of implicit biases on jury decision making.154 The commitment of this diverse group to address the effects of implicit racial bias provides reason for optimism that other courthouses across the country might engage in similar efforts. While the Seattle project is currently limited to jury decision making, it is possible that the awareness of implicit bias underlying this undertaking and the trust and relationships that have developed during the process will translate into a joint effort to reduce triage decision making in the courthouse.

conclusion

As this Review argues, racialized practices need not be overt, punitive, and extreme, and courtroom actors need not be consciously biased in order for race to have pernicious and disturbing consequences on behaviors and judgments. However, to the extent that people today are more likely to be consciously egalitarian than not, there is reason to hope that educating criminal justice actors about implicit racial biases and how systemic triage makes it more challenging to safeguard against the influence of these biases might help encourage actors to fight for institutional and structural changes. Changing the institutional and structural conditions that allow implicit biases to flourish is important because this “new” racism is, as Van Cleve concludes about colorblind racism, “just as punitive and abusive”155as old-fashioned bigotry.In fact, this new racism is in some ways more dangerous and pernicious than racial bigotry because it is ephemeral and difficult to eradicate.

Van Cleve’s important ethnography brings to light the hidden and pernicious workings of the criminal justice system that often operates in the shadows. Based on the model of systemic triage introduced in this Review, it is likely that the racialized practices she exposes also exist in many other jurisdictions with overburdened courts, although these practices may not operate in a similarly overt and explicit fashion. Even more troubling is the probability that these practices will thrive under conditions of systemic triage despite the existence of constitutional protections, a court record, and prosecutors, defense lawyers, and judges who are ostensibly committed to lofty principles of justice and fairness. The problematic practices of racism without racists make a mockery of justice that should trouble us all.