Abstract
excerpted from: Mark W. Bennett and Victoria C. Plaut, Looking Criminal and the Presumption of Dangerousness: Afrocentric Facial Features, Skin Tone, and Criminal Justice, 51 University of California Davis Law Review 745 (February, 2018) (383 Footnotes)(Full Article)
"The mere presence of a Black man ... can trigger thoughts that he is violent and criminal." Jennifer L. Eberhardt et al., Seeing Black: Race, Crime, and Visual Processing
President Obama understood what few prosecutors, defense lawyers, judges, probation officers, or jurors in our Nation's criminal justice system do: the historic presumption of dangerousness that Whites routinely apply to Blacks in America. In 2016, addressing a town hall in Washington D.C. on race relations in the United States, President Obama acknowledged, "I do think that in that sense, what is true for me, is true for a lot of African-American men, is there's a greater presumption of dangerousness that arises from the social and cultural perceptions that have been fed to folks for a long time." This presumption of dangerousness is shockingly apparent in a recent incident at a high school cross country meet. During this meet, a fifteen-year-old Black, nearly nonverbal, autistic team member, Chase Coleman, while running, was assaulted by an older White man. The man viewed Chase running down the wrong street, after getting confused about the course, with his number still attached to his jersey. The man got out of his car, approached Chase, and assaulted him by pushing him to the street and yelled: "Get out of here." The man claimed he thought Chase was going to mug his wife, who was seated on the passenger side, and steal her purse. When asked why he thought this, the man responded that some youths had recently broken into his car. The presumption of Black dangerousness struck again. Black girls and women are not immune to the presumption of dangerousness. Nineteen-year-old Renisha McBride was shot after knocking on a resident's door after crashing her car. The shooter said he thought his home was being broken into.
No one should seriously question that race discrimination, in all aspects of American contemporary life, is still a serious problem. Indeed, with respect to the U.S. criminal justice system virtually every aspect has been scrutinized and criticized for showing racial bias--with the toughest criticism often reserved for sentencing decisions. Michelle Alexander has written, in discussing contemporary mass incarceration in the United States, that our criminal justice system has "emerged as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow." While the focus of this Article is on skin tone and Afrocentric features in sentencing, it is important to note that the system of racialized control that Professor Alexander writes about starts much earlier than sentencing. Numerous empirical studies have "confirmed racial disparities in the probability of experiencing arrest."
At the next stage--pretrial release following arrest--a study, using felony processing data from large urban courts, found that that the odds of detention for Black 
defendants were 66% greater than White defendants, while the odds for Hispanic defendants were 91% greater. The study also found, controlling for relevant factors, a greater likelihood for Black and Hispanic defendants versus White defendants to be denied bail and to be held on bail for not being able to post bail. The study further found that the amount of bail required for Hispanic defendants was more than for White and Black defendants and that Hispanic defendants were less likely to receive nonfinancial release options, such as own recognizance conditions of release.
However, concealed within generalized race discrimination in the criminal justice system is the often-ignored problem of skin tone or "colorism" discrimination. In examining the effects of Afrocentric features and colorism in the criminal justice system, it is important to distinguish race from skin tone. They are distinct, but also sometimes overlap. In the nineteenth century, the question of one's race was litigated before juries and was vitally important to issues of personal freedom, property, and social status. The "race" question for individual litigants in these trials had much broader social implications in the South. Neighbors often participated in these trials as witnesses and jurors, and word of the trials spread through newspaper articles and literary narratives. Because the courtroom was such an important part of the culture in the South, such race decisions resounded widely. Even a few cases back then would have a much larger impact than today, because the trials were public, often infamous, and held at the county courthouse--"the central meeting- place of towns and rural areas." The key evidence in many of these cases was the jurors' very observation of the skin tone and facial features of the parties. Indeed, the Mississippi Supreme Court, in 1876, ruled that racial identity as a "colored person" could be "brought to [the jurors'] attention by ocular demonstration" because "jurors may use their eyes as well as their ears." As the present Article reveals, that key evidence, observation of skin tone and facial features, is just as important today, nearly a century and one-half later, or, if you are a defendant in a criminal case, perhaps much more significant.
We think it likely that most people, except for a few specialized social scientists, do not think about the concepts of race, skin tone, and Afrocentric facial features, separately. In fact, research suggests that people are largely unaware of the use of Afrocentric facial features to make judgments about others. This is especially significant for participants in the criminal justice system. Most social science research about criminology and race focuses on the differences between Black and White Americans, not on the heterogeneity within Blacks and Whites. This is likely due, in part, to data limitations on skin tone and facial features, which is seldom included in the sentencing data collected by the states and the federal government. Focusing on race, like Black and White, Hispanic and White, or Asian and White, as most prior research does, misses the new frontier of discrimination in the criminal justice system: harsher treatment within a race (surprisingly including Whites) based on greater Afrocentric facial features and darker skin tone.
What does colorism mean? Why do so many Whites perceive Blacks as more criminal and dangerous than Whites? Where does this presumption of dangerousness come from? How does this presumption of dangerousness and criminality affect the criminal justice system in the United States? Does the darkness or lightness of offenders' skin tone matter in criminal justice outcomes? What about the degree of Afrocentric facial features? What role does stereotyping play in any of this? Is there anything that should or could be done about it?
To unravel these and other questions, this Article analyzes historical, sociological, psychological, medical, and neuroscience literature going back to slavery in the United States. It comes forward to current stereotypes of Blacks and recent empirical studies about colorism, Afrocentric facial features, and the length of sentences. While most of the research has focused on Black men, where relevant evidence exists, the Article highlights how women have also been subjected to colorism.
This Article proceeds in several parts.
The next part defines and provides an overview of what skin tone (colorism) and Afrocentric facial features biases mean and their general effects on offenders in the criminal justice system.
Part II analyzes the Black criminal, violent, and dangerousness stereotype looking at the deeply rooted historical perspective, the roles of literature and pseudo-science, the emerging neuroscience about the amygdala, the role that television news plays in perpetuating the presumption of dangerousness, and the historical dehumanizing of Blacks through the Negro-ape metaphor.
Part III looks closely at the relationship between colorism, Afrocentric facial features, and the length of criminal sentences.
Part IV analyzes in depth the cognitive science behind the presumption of dangerousness.
Part V describes the authors' suggestions for minimizing the presumption of dangerousness for Blacks in the criminal justice system.
