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Excerpted from: Cynthia Lee, Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post-racial Society, 91 North Carolina Law Review 1555 (June, 2013) (327 Footnotes) (Full Document)


cynthialeeOn February 26, 2012, at approximately 7:17 p.m., a seventeen-year-old Black teenager named Trayvon Martin was shot and killed by a twenty-eight-year-old Hispanic man named George Zimmerman, the Neighborhood Watch Captain for the Retreat at Twin Lakes Community. Minutes earlier, Zimmerman had called 911 to report what he thought was suspicious activity. “Hey, we've had some break-ins in my neighborhood,” Zimmerman told the dispatcher. “And there's a real suspicious guy.” Zimmerman told the 911 dispatcher that the suspicious guy looked like he was up to no good, or as if he was on drugs. Zimmerman asked how long it would take the police to arrive because “[t]hese assholes, they always get away.” Zimmerman then told the dispatcher that the individual was starting to run. The dispatcher asked Zimmerman if he was following the suspicious person. When Zimmerman responded affirmatively, the dispatcher told him, “O.K, we don't need you to do that.” Zimmerman's call ended at about 7:15 p.m.

What happened next is hotly disputed, but one thing is clear. At approximately 7:17 p.m., Zimmerman shot and killed Trayvon Martin. Martin, who was unarmed, had been walking and talking on his cell phone with his girlfriend when Zimmerman first began following him in his car. When Martin began running away from him, Zimmerman got out of his car to follow Martin on foot. Apparently a scuffle ensued during which Zimmerman found himself face up on the ground with Martin on top of him. Witnesses heard someone calling out for help before hearing the sound of gunfire. Police arrived on the scene shortly after the shooting to find Martin, who was shot once in the chest, lying face down on the grass with his hands underneath his body. Inside the front pocket of Martin's sweatshirt were a bag of Skittles and a large, cold can of Arizona iced tea. A black cell phone was found at the scene near Martin's body.

Zimmerman told police that he shot Martin in self-defense. Zimmerman was handcuffed and taken to the local police station in Sanford, Florida,and then released without charges. The failure of the Sanford Police Department to arrest Zimmerman created a firestorm of protests. Across the country, thousands of people donned hoodies and held candlelight vigils to demand Zimmerman's arrest and show support for Martin, who was wearing a dark grey hoodie sweatshirt when he was shot. Amidst the calls for justice, Florida's “Stand Your Ground” law, which was cited by the City of Sanford as the reason why Zimmerman could not be arrested, became the subject of intense scrutiny.

This Article uses the Trayvon Martin shooting to examine the operation of implicit racial bias in interracial cases involving claims of self-defense. Implicit bias is unintended bias that operates without our conscious awareness. Legal decision makers are often unaware of the extent to which implicit racial bias can influence perceptions of fear and reasonableness determinations in self-defense cases. The effects of implicit bias are particularly likely to operate under the radar in a society like ours that views itself as post-racial. Many people today believe that race no longer matters, or that it matters too much to some people. Post-racialists, for example, view the 2008 election of Barack Obama, the nation's first African American president, as proof that race no longer matters and that racial discrimination is a problem of the past.

The notion that we have reached a post-racial moment in our history and therefore need not be as concerned with issues involving race as we have been in the past is popular among both conservatives and liberals, but is deeply misguided. Research on social cognition suggests that race still matters today, although in different ways than it mattered in the past. As the Implicit Association Test has shown over and over, race influences both our perceptions and behaviors, often without our even knowing it. Even individuals who endorse egalitarian beliefs demonstrate implicit racial bias in favor of Whites and against Blacks. Ironically, because racial bias today is largely implicit rather than explicit, attempts at being color-blind can exacerbate the problem of racial bias because ignoring race can result in the automatic engagement of stereotype-congruent responses.

This Article proceeds in four parts. Part I examines the belief that our society has reached a point in history when it no longer makes sense to focus on race and racial discrimination--the notion that we are post-race or post-racial. The Article starts by explaining what is meant by the term “post-racial.” It then suggests that despite significant advances in civil rights laws and major shifts in attitudes about race, we are not yet beyond race. The shooting of Trayvon Martin is used as an example of how racially divided our society remains despite the election of President Obama.

Part II examines the wide gulf between the largely egalitarian racial attitudes that most Americans explicitly hold today and the negative implicit racial biases that persist beneath the surface. John Dovidio and Samuel Gaertner's theory of aversive racism offers one way to explain this puzzling inconsistency. Under their theory, many, if not most, Americans sincerely believe in equal treatment for Blacks and Whites. Yet despite these egalitarian beliefs, Americans are constantly exposed to negative stereotypes about Blacks. These stereotypes include the idea that Blacks are lazy people who would rather live on or cheat welfare than work and that Blacks are often involved in criminal activity.

Dovidio and Gaertner posit that in situations where the racial nature of a particular course of action is clear--in other words, if it would be clear that one is acting in a racially biased manner--Americans will usually choose to act in non-biased ways. In cases where one's actions can be attributed to either racial or nonracial factors, however, Americans will more often than not act in racially biased ways.

Building on Dovidio and Gaertner's work, I suggest that the initial decision by the Florida State Attorney's Office not to charge Zimmerman was made at a time when the racialized nature of the case was not yet evident, and when factors other than race--such as Florida's Stand Your Ground law, the grass stains on Zimmerman's back, Zimmerman's injuries, and Zimmerman's status as the Neighborhood Watch Captain--could explain the decision not to charge George Zimmerman in the death of Trayvon Martin. Indeed, weeks passed before the case received any significant attention in the press. Then race quickly became salient in various ways, from the public protests over the shooting to Zimmerman's parents' efforts to prove their son was not a racist. Only after race became painfully salient did the State Attorney's Office appoint a different prosecutor to handle the case, who then decided to charge Zimmerman with second degree murder.

Part III focuses on the operation of racial stereotypes and implicit racial bias in the self-defense context. It examines social science studies showing that individuals are more likely to perceive an action as aggressive, violent, and dangerous when committed by a Black person than when the same action is committed by a White person. This Part also examines social science studies showing that individuals are more likely to “see” a weapon in the hands of a Black person than in the hands of a White person, even when the Black person is actually unarmed. This Part suggests that these studies have disturbing implications for criminal cases involving claims of self-defense against Black and Brown victims given the reasonableness requirement in self-defense law. The defendant claiming self-defense in the use of deadly force does not have to be correct that he was being threatened with an imminent, unlawful attack threatening death or serious bodily injury as long as his belief in the need to use deadly force in self-defense was both honest and reasonable. If most people assume that young Black males are armed and dangerous, then a defendant claiming that he shot a young Black male in self-defense is more likely to be seen by the judge and jury as having acted reasonably, even if the young Black male in question was not in fact a threat.

Part IV relies on recent social science research on race salience to suggest some possible reforms. Samuel Sommers, Phoebe Ellsworth, and others have shown through empirical research that making race salient or calling attention to the operation of racial stereotypes encourages individuals to suppress what would otherwise be automatic, stereotype-congruent responses and instead act in a more egalitarian manner. These studies suggest that when race is made salient, individuals tend to treat White and Black defendants the same. When race is not made salient, individuals tend to favor White defendants over Black defendants.

Building on these insights, this Part suggests that in the run-of-the-mill case, when an individual claims he shot and killed a Black person in self-defense, legal decision makers are likely to find reasonable the individual's claim that he felt his life was being threatened unless mechanisms are in place to make the operation of racial stereotypes in the creation of fear salient. This is especially true if the victim is a young Black male dressed in a certain way. In the Trayvon Martin case, race was made salient by the extensive media coverage and the huge public outcry over the Sanford Police Department's failure to arrest. Most criminal cases, however, do not receive the kind of media attention received by the Trayvon Martin case. In most criminal cases involving a Black defendant or victim, race is a background factor that is not highlighted by either party. The parties may think race is irrelevant or they may fear that if they call attention to race, they will be accused of “playing the race card.” Race, however, is often relevant to questions about the reasonableness of fear, and the recent social science research on race salience suggests that calling attention to race may be the best way to defuse the adverse effects of implicit racial bias.

Accordingly, this Article proposes that prosecutors and criminal defense attorneys who are concerned about the operation of implicit racial bias should attempt to make race salient in the criminal courtroom. The Article provides a few concrete suggestions as to how race can be made salient and concludes by addressing possible objections to its proposal.

. . .

Trayvon Martin died prematurely when he was shot by George Zimmerman last year. The untimely death of an innocent Black teenager and the Sanford Police Department's failure to arrest the man who shot him sparked a nationwide debate about race and justice in America. Race was made salient in the Trayvon Martin case by the huge public outcry following the shooting and the extensive media coverage of the shooting. One unexpected benefit that came from all this public attention was that it focused people's attention on the pervasiveness of racial stereotypes. Most criminal cases, however, do not garner the same level of media attention or public scrutiny. In the run-of-the-mill criminal case, race is not an issue that is highlighted by either party even when the defendant or victim is a racial minority and racial stereotypes and implicit racial bias are likely to influence the verdict.

Recent social science research on race salience demonstrates that making race salient can encourage jurors to treat Black and White defendants equally. The same research indicates that not making race salient can lead to unequal treatment of Black and White defendants. In light of this research, this Article urges attorneys who are concerned about the effects of implicit racial bias to make race salient. Making race salient, not being blind to racial difference, may be the best way to even the scales of justice.

In February 2013, United States Supreme Court Justice Sonia Sotomayor, the Court's first Hispanic Justice, made race painfully salient for one federal prosecutor by publicly criticizing his racially stigmatizing questioning of an African American defendant charged with participating in a drug conspiracy. A critical issue in the case was whether the defendant knew that the people with whom he was traveling were about to engage in a drug deal. During cross-examination, the prosecutor stated, “You've got African Americans, you've got Hispanics, you've got a bag full of money. Does that tell you--a light bulb doesn't go off in your head and say, ‘This is a drug deal?”’

Justice Sotomayor chastised the prosecutor for his remarks, stating, “By suggesting that race should play a role in establishing a defendant's criminal intent, the prosecutor here tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our Nation.” Justice Sotomayor continued, “The prosecutor's comment . . . was pernicious in its attempt to substitute racial stereotype for evidence, and racial prejudice for reason.” And to make sure her disapproval was crystal clear, she concluded, “It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st Century. . . . We expect the Government to seek justice, not to fan the flames of fear and prejudice. . . . I hope never to see a case like this again.”

Even though she joined the majority of the Court in ruling in favor of the government, Justice Sotomayor made race salient by highlighting the ways in which the prosecutor's remarks relied on racial stereotypes and prejudice. Her remarks will likely encourage the prosecutor in this case and attorneys in future cases to think twice before making similar comments that draw generalizations about individuals based on their race.

Charles Kennedy Poe Research Professor of Law, The George Washington University Law School.