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Unconscious bias may affect criminal penalties

Experts in California and around the country have raised concerns about the potential effects of unconscious bias in the courtroom. Widely studied by a range of researchers in the natural and social sciences, unconscious bias is an example of discriminatory treatment that results not from conscious thought but from unconscious brain responses. Thus, people may believe themselves to be non-racist or even anti-racist, but they may still be more likely to judge people of color more harshly. When judges express unconscious bias, the result can lead to damaging inequities in the criminal justice system.

Research shows that black defendants continue to face harsher treatment and penalties in the criminal justice system, despite sentencing reforms and civil rights legislation. Black people convicted of crimes are more likely than white defendants to receive longer sentences or even the death penalty. In the pretrial phase, black defendants are more likely to have to pay higher bails or be denied bond altogether. While some allege that this is the result of conscious racism, others argue that unconscious bias plays a major role in this type of unequal treatment. According to research, unconscious bias has the strongest effect on people who most believe themselves to be objective and are unwilling to question their commitment to their expressed convictions.

Judges are often proud of their objectivity, but it may lead some to be unwilling to look out for dangerous signs of bias or unequal results. Unconscious bias can even affect the way some judges respond to lawyers, including younger lawyers, women and people of color, advocating strongly for their clients.

A criminal conviction can have a serious impact on a person's future, including opportunities for housing, education and employment. People charged with a crime may work with a criminal defense attorney to challenge prosecution evidence and aim for a favorable result.

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