February 25, 2017

Systemic Triage: Implicit Racial Bias in the Criminal Courtroom

L. Song Richardson, Yale Law Journal

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.144However, 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.

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Indeed, when it is suggested that things are improving, many people become angry and move the goalposts. “So you’re saying,” they ask derisively, “that the current levels are acceptable? So you think it’s okay that so many people are victims?”” The answer to such questions is simple: “No, of course not.” To recognize that a problem is declining in scale is quite obviously not to contend that the remaining trouble does not matter. Lest anybody misunderstand me here, I’ll say it plainly: It is A Good Thing that 330 fewer people were murdered with firearms in 2014 than in 2013, and it is A Bad Thing that 8,124 were killed in 2014 anyway. Equally, though — and this, I think is where the disagreement lies — I do not believe that to acknowledge that the status quo is imperfect is to accept that we know how to improve it.

Charles C.W.Cooke, National Review Online

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