Date of this Version
Court Review, Volume 49, Issue 1 (2013)
Cutting-edge neuroscientific studies provide new insights into the inner workings of the human brain. At the same time, innovations in justice-system data collection have allowed researchers to gather and analyze vast quantities of statistical data in criminal-sentencing patterns. The combination of the two genres of study provides us with the first scientifically based demonstration that well-meaning egalitarian judges may have strong neurophysiologic reactions to defendants, victims, experts, and attorneys. These reactions help us explore whether or not race affects judicial decision making.
The Model Code of Judicial Conduct, caselaw, the Fourteenth Amendment, and the constitutions of every state prohibit judges from using race as a factor in sentencing.1 However, traditional notions of race bias are based on the idea that disparate outcomes are a simpleminded application of racial bias perpetrated by a select few judges who are not aligned with the values of the justice system.2 The overwhelming majority of judges are committed to fairness and impartiality. The overwhelming majority of judges would also agree that racial bias is abhorrent and that it has no place in our justice system. However, the emerging neuroscience compels the thoughtful analyst to inquire about the role of the brain’s automatic reactions in decision making.
Neuroscientists explore the brain’s processes, but the justice system must be provided with an analysis of how the law shapes the ways that a judge’s brain may react. The rigorous analysis required in the application of the four principles of criminal sentencing (i.e., retribution, rehabilitation, deterrence, and incapacitation)3 may allow or even facilitate problematic neurophysiologic reactions in a judge’s brain and may result in disparate sentencing patterns. Yet the sentencing disparities are not explored, and the proof that racial bias is the cause is not fully accepted.4 This is partially because the ways in which racial bias may manifest in a judge’s brain are not easily understood.5