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A Test for Implicit Bias in Discretionary Criminal Justice Decisions

NCJ Number
Law and Human Behavior Volume: 47 Issue: 1 Dated: 2023 Pages: 217-232
Date Published
16 pages

In this article, the authors report on their use of two complementary quasi-experimental methods to look for evidence of implicit bias in community supervision discretionary decision-making, using a novel testing strategy; and they note their finding that implicit bias generates larger disparities when system actors are making decisions about clients they interact with infrequently.


For their research, the authors’ goal was to develop a framework to test for implicit racial bias in discretionary decisions made by community supervision agents in conditions with increasing information ambiguity. They reasoned that as in-person contact decreases, community supervision officers’ specific knowledge of clients would be replaced by heuristics that lead to racially disproportionate outcomes in higher discretion events. Officers’ implicit biases would lead to disproportionately higher technical violation rates among Black community corrections’ clients when they have less personal contact, but we expected no analogous increase in nondiscretionary decisions. Using data from black and white clients entering probation and post-release supervision in North Carolina from 2012 through 2016, the authors estimated the difference in racial disparities in discretionary versus nondiscretionary decisions across five levels of supervision. They evaluated the robustness of their main fixed-effects model using an alternative regression discontinuity design. Results indicated that racial disparities in discretionary decisions grew as supervision intensity decreased, and the bias was larger for women than for men; there was no similar pattern of increased disparity for nondiscretionary decisions. Criminal justice system actors have a great deal of discretion, particularly in how they deal with less serious criminal behavior. Although decentralized decisions are foundational to the function of the criminal justice system, they provide an opportunity for implicit bias to seep in. Shortcuts and mental heuristics are more influential when the decision-maker’s mental resources are already strained—for instance, if someone is tired, distracted, or overworked. Therefore, limiting discretion and increasing oversight and accountability may reduce the impact of implicit bias on criminal justice system outcomes. Publisher Abstract Provided

Date Published: January 1, 2023