Jody David Armour
Roy P. Crocker Professor of Law, University of Southern California
October 9, 2018
How do we reconcile our constitutional, political, and moral commitment to the “rule of law” with the reality of unconscious anti-black bias in police officers, prosecutors, judges, jurors, prison guards, parole boards, and probation officers? This talk will explore how social perceptions of wrongdoers—especially their race, gender, and class—determine how decision makers view their moral culpability and just desserts. Social perceivers do not make moral judgments of others on the basis of abstract principles or categorical imperatives but rather on the basis of factors within the perceivers themselves, factors such as empathy and attribution. Because of outgroup empathy bias and race-based attribution error, social perceivers like judges, jurors, and prosecutors make harsher moral judgments of black wrongdoers than of similarly situated white ones. These harsher moral judgments of black wrongdoers mean that legal decision makers will more readily find that black defendants meet the criminal law’s requirement of moral blameworthiness or “mens rea.” In a word, black criminals are not merely found or discovered in the “fact-finding” process of a criminal trial, they are socially constructed through the biased mental processes of legal decision makers.