Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law
One topic that has emerged since the Trayvon Martin decision is the concept of implicit bias. The limited research I have done indicates that “implicit bias” can be defined as follows:
Implicit Bias = Implicit Social Cognitions = Stereotypes (Traits we associate with a category) + Attitudes (Overall evaluative feelings that are positive or negative)
For example, some reading this may think because of my name that I am a grandson of General Benjamin O. Davis, Jr. and ascribe qualities to me that are not true (I am no relation.)
The literature says implicit bias is malleable and can be changed by such things as:
a) Motivation to be fair
b) Social contact across social groups
c) Counter-typical exemplars (de-biasing agents)
d) Procedural changes
Looking at the Zimmerman jury.
On motivation to be fair, one can be motivated to be fair in terms of not doing socially unacceptable unfairness, but I wonder whether socially acceptable unfairness is merely a term for the range of fairness that is tolerated. When one has complete autonomy to interpret jury instructions that are only understood in a limited fashion would one not fall back on that sense of tolerable social fairness? I am thinking again that the evidence has to be really motivating to motivate someone to be fair in a way that goes against one’s subjective sense of fairness. An appeal to objective fairness might constrain the range of fairness but surely that would only be a reduction of the breadth of choices toward one point or another. Score one for George Zimmerman’s acquittal.
On social contact across social groups, in an essentially all white jury there is no racial social contact across social groups, so background cultural norms are only challenged in a somewhat homogeneous or limited heterogeneous discussion space. Competing visions of substantive and procedural fairness may not be present. Prior social contacts could influence the sense of fairness, but in which direction depends on the experiences. There is the longstanding trope of “nigger lover” in this country when two or more white people get together. If people are living in segregated spaces, it is doubtful the experiences will be sufficient to make implicit bias more malleable. Score two for George Zimmerman’s acquittal.
Counter-typical exemplars would not be present among the jurors (curious if the court staff with them were all white or not) or if there was little prior interaction with black people that was positive as opposed to negative. Score three for George Zimmerman’s acquittal.
Procedural changes such as the nature of the jury instructions and for that the background law might have an affect. But from what I understand, whatever the evidence, these Florida jury instructions and the law seem particularly harsh. Score four for George Zimmerman’s acquittal.
It is not that these things could not come out the other way as we understand there was a split at the start that was 1 for 2nd degree, 2 for manslaughter and 3 for acquittal. I can do and think all the things that do that. Rather, the thing for me is that the forces were not strong enough to push the other way. Was it because the prosecution did not “go there” enough to make more malleable the implicit bias? I do not know.
Procedural changes such as making sure there is a more diverse group on the jury might help temper these implicit bias points but my sense is that if this jury is what comes out of the way the law on jury selection is applied, more diverse juries are not going to be found.
Ultimately, the message of the decision is clear: IN FLORIDA (AND POSSIBLY AMERICA) TODAY, IT IS OK TO KILL AN UNARMED 17 YEAR OLD BLACK KID WHO IS LAWFULLY IN A WHITE NEIGHBORHOOD IF HIS PRESENCE CAUSES SUFFICIENT CONTACT WITH A NON-BLACK MAN FOR THE NON-BLACK MAN TO SUBJECTIVELY FEAR SERIOUS BODILY HARM OR DEATH WHICH FEAR OF THE BLACK KID WILL ALWAYS BE SEEN AS REASONABLE. BLACK KID, LOCATION, PRESENCE, CONTACT, FEAR, REASONABLENESS = OK TO KILL.
One might go to trial, but one will be acquitted. If I have got that wrong, please correct me.
The legal issues underneath that structural message about Florida society pale before that message. If there is implicit bias, and the mechanisms to make it malleable are not there, then the message to our black kids is what I have highlighted above. Obviously it is profoundly unfair and a denial of freedom, but that is where we are at in 2013 or for me at the age of 57.
Damn it to hell!
There are for me too many forces at work in this setting to be able to change this and I doubt whether the forces that led to the current situation are willing to change. As the recent commission in Florida that examined the Stand Your Ground law concluded, everything is just fine.
This is the thing that causes the depressive overload for me because everything is not fine and must change, but the forces aligned do not seem to have any interest in changing any of this. On the contrary, I wonder if we should not think of Trayvon’s death to be like the moment in Django when the dogs are sicked on the slave and they bite him to death. That is the physical violence. Then there is the shock of the other slaves and the glee of the overseers at the spectacle – different sides of the same coin of psychic violence (reinforcement of slave subordination AND reinforcement of overseer subordination to the plantation owner as they do his bidding whether or not they relish it).
For me, we are in that space now. And, somehow I imagine mostly white men and women but not only white men and women smoking cigars in leathered rooms like at the Harvard club sitting and enjoying with glee “the masses” having their outrage. People who relish putting in place or preserving laws and practices that enshrine risks like this for young black males, watch these young black males die at the hands of whites or blacks or Hispanics, and enjoy the spectacle of the action and reaction. It is the pleasure of watching all of our outrage and anguish that feeds these people. It is like an orgy for them of watching their “inferiors” pain. And it is for their pleasure, like for an emperor in a Roman coliseum, that these things are repeated over and over.
I have met some twisted people like this in my life who were at high levels. The one’s lusting for power and money in an inordinate manner. The socio-pathological types that in their ambition will do anything and whose initial rationale is “I have to feed my family” but with each dastardly deed feels pleasure. The one’s who start out as ambitious and willing servitors of oppression because that is the way to “make it” to success.
When asked if he enjoyed what he did, I once heard a master of the corporate universe say after an anti-Semitic diatribe that was breathtakingly shocking, “To do the terrible things I have to do, I have to enjoy it.”
I am trying to find the exit from this vicious circle: an exit that pulls those young black males out of that risk space and prevents the perpetrators from even thinking of going this way. In short, I am trying to think how to stop this unmerry-go-round so that I deprive the plantation owner of his spectacle and of the dehumanization of the innocent young black male AND in my greatest hope the dehumanization of the willing perpetrator. Or at least protect the innocent young black male or female (Marissa thinking of you) primarily and a way to rein in the willing perpetrator of violence and death on them.
Wringing hands over the tragedy just is not making it for me. Demonstrating on Saturday will help. Going to the March on Washington and hoping there are millions there and millions in every state capital with a broad mass movement of a broad series of structural remedies being insisted upon is also feeling like it is part of this, but the sense is of more than these flashes in the pan. These are the partial ideas being channeled by institutions, but they feel like they are not enough.
Still in the depressive overload and the contradiction without the idea and the nascent state.
As Ms. Sybrina Fulton asked, “What do little black and brown boys do? They can’t walk fast. They can’t walk slow. How do they get home?”
What are little black and brown boys to do Ms. Fulton? They are to walk home and they are to be raised to be free – not subordinated.
We have to insist that this society make sure that we can raise them to be as free as anyone else and to be able to walk home without risk. And that goes not only for this kind of violence, but sexual predators and the rest of it. And anything that does not make that happen, has to be changed. Not in ten years. Not in five. Now.
Let us go to all of the state houses and all of the federal buildings. Let us be millions in all of these places. Let us flood the offices of all the corporate titans who sit at those clubs. Let us insist on a jobs program to hire these youths in jobs that get them on their way. Let us insist on changing the laws so these abominations are more difficult – one can not hope in America that they can be eliminated. Let us make sure that the levers of education, housing, nutrition, etc. work for these young boys and not against them.
Let every hill be leveled and every valley made high.