"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." (1) This statement by Chief Justice John Roberts in 2007 is alluring in both its grammatical symmetry and its logical simplicity. Yet it encapsulates the naivete of the view of racial discrimination currently held by the majority of the justices of the Supreme Court of the United States. Chief Justice Roberts's assertion contains the implied assumption that the only racial discrimination that exists--or at least the only kind that matters under the Constitution--is explicit and susceptible to conscious control. Decades of psychological research has demonstrated that the most insidious form of racial bias is actually implicit and subconscious, however. (2) Moreover, research has consistently shown that such racial bias--termed "implicit racial bias" by the psychological literature--is capable of affecting conscious behavior and exists independently of individuals' conscious and explicit beliefs about racial equality. (3) By clinging to an outdated and incomplete definition of racial discrimination, the Court has made a series of decisions that have permitted and exacerbated the damage that implicit racial bias wreaks on racial minorities.
The most dramatic and devastating mark of implicit racial bias on the black American community is the racial disparity that permeates every level of the criminal justice system. Failure to acknowledge and account for implicit racial bias has led the Court to expand the discretion of criminal justice actors over the past half century, vastly widening the array of opportunities for implicit racial bias to influence their decisions. (4) At the same time, the Court has rejected one of its most powerful tools for controlling the effects of such bias, spurning disparate impact theory in favor of an intent-based standard that is all but impossible for plaintiffs to meet. (5) To fulfill its constitutional duty and give true meaning to the Equal Protection Clause of the Fourteenth Amendment, the Court must recognize the influence of implicit racial bias on the criminal justice system and change constitutional course accordingly.
This Note begins with an overview of the racial disparity in the American criminal justice system. Part II gives a brief introduction to implicit racial bias, while Part III summarizes the limited research that has been conducted thus far to document its influence on criminal justice actors. Part IV analyzes the key decisions of the Court that have permitted and exacerbated the impact of implicit racial bias on the justice system, culminating in Part V, which shows the cumulative effects of the Court's decisions by analyzing the New York Police Department's "stop-and-frisk" policy and one federal judge's struggle to curtail that policy's racially disparate impact in light of the Supreme Court's precedents. Finally, Part VI argues that the Court should begin to address the reality of implicit racial bias by reigning in criminal justice actors' discretion and by refocusing its equal protection analysis on disparate impact rather than intent.
I. THE CURRENT RACIAL DISPARITY IN THE CRIMINAL JUSTICE SYSTEM
Vast racial disparity permeates every level of our criminal justice system. Black Americans constitute roughly twelve percent of the American population, (6) but nearly forty percent of incarcerated Americans are black. (7) Black males are six times more likely to be incarcerated than white males and 2.5 times more likely than Hispanic males. (8) In individual terms, the impact of such statistics is staggering: one in three black men born today will be incarcerated in his lifetime, compared to one in six Hispanic men and one in seventeen white men. (9) Racial disparities among incarcerated women are less substantial than among men but remain prevalent. (10) The cumulative effect of such disparity is that today--fifty years after the passage of the Civil Rights Act and 150 years after the ratification of the Reconstruction Amendments--more black Americans are under correctional control than were enslaved in 1850. …