Law Commons^™

The Appellate Judge As The Thirteenth Juror: Combating Implicit Bias In Criminal Convictions, Andrew S. Pollis

Faculty Publications

Research has documented the effect that implicit bias plays in the disproportionately high wrongful-conviction rate for people of color. This Article proposes a novel solution to the problem: empowering individual appellate judges, even over the dissent of two colleagues, to send cases back for retrial when the trial record raises suspicions of a conviction tainted by the operation of implicit racial bias.

Factual review on appeal is unwelcome in most jurisdictions. But the traditional arguments against it, which highlight the importance of deference to the jury’s fact-finding powers, are overly simplistic. Scholars have already demonstrated the relative institutional competency of …

Unshackling Plea Bargaining From Racial Bias, Elayne E. Greenberg

Faculty Publications

“History, despite its wrenching pain, cannot be unlived, [but] if faced with courage, need not be lived again.”

Dr. Maya Angelou

When an African American male defendant tries to plea bargain an equitable justice outcome, he finds that the deep-rooted racial bias that casts African American men as dangerous, criminal and animalistic, compromises his justice rights. Plea bargaining has become the preferred process used to secure convictions for upwards of 97 percent of cases because of its efficiency. This efficiency, however, comes at a cost. The structure and process of plea bargaining makes it more likely that the historical racial …

Nearsighted And Colorblind: The Perspective Problems Of Police Deadly Force Cases, Jelani Jefferson Exum

Faculty Publications

In dealing with the recently publicized instances of police officers' use of deadly force, some reform efforts have been focused on the entities that are central to the successful prosecutions of police–the prosecutor and the grand jury. Some have suggested special, independent prosecutors for these cases so that the process of deciding whether to seek charges against police officers remains untainted by the necessary cooperative relationship between the police department and the prosecutor's office. Others have urged more transparency in the grand jury process so that the public can scrutinize a prosecutor's efforts in presenting evidence for an indictment. Still …

Blind Injustice: The Supreme Court, Implicit Racial Bias, And The Racial Disparity In The Criminal Justice System, Tyler Rose Clemons

Faculty Publications

(Excerpt)

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” This statement by Chief Justice John Roberts in 2007 is alluring in both its grammatical symmetry and its logical simplicity. Yet it encapsulates the naiveté 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 …