Implicit White Favoritism in the Criminal Justice System

Commentators idealize a racially fair criminal justice system as one without racial derogation. But unjustified racial disparities would persist even if racial derogation disappeared overnight. In this Article, we introduce the concept of implicit white favoritism into criminal law and procedure scholarship, and explain why preferential treatment of white Americans helps drive the stark disparities that define America's criminal justice system. Scholarly efforts thus far have shone considerable light on how implicit negative stereotyping of black Americans as hostile, violent, and prone to criminality occurs at critical points in the criminal justice process. We rotate the flashlight to reveal implicit favoritism, a rich and diverse set of automatic associations of positive stereotypes and attitudes with white Americans. White favoritism can operate in a range of powerful ways that can be distinguished from traditional race-focused examples: in the way, for example, white drivers are pulled over less often than unseen drivers or crimes against white victims are seen as more aggravated. Our account of implicit white favoritism both enriches existing accounts of how implicit racial bias corrupts the criminal justice system and provides explanations for disparities that implicit negative stereotyping explanations miss altogether.