bias could take the form of an unconscious association between youth who wear certain styles and
brands of clothing and “bad,” or, alternatively, an association between youth from certain
neighborhoods and a stereotypical trait such as “troublesome.”
Additionally, bias and especially implicit bias can be a greater risk in situations in which
there is a high level of discretion and major consequences to decisions, which recent research
indicates is the case with court cases and especially with youth court.
48 Even well intentioned
judges who diligently follow the letter of the law are influenced by factors such as locality and
therefore might be influenced by local perspectives surrounding factors like race.
49 A recent study
indicates that the judges “[are] not saying: ‘I’m going to form my own sentencing rules.’ Rather,
they are left in a vacuum [in the communities within which they serve] and they have no choice
but to form their own rules. There’s too great a vacuum, . . . . ”
50 This demonstrates implicit bias
in the justice system even where rules are followed, and underscores the importance of these
factors within the context of the research question and racial, Indigenous, or cultural disparities
with youth. Thus, while racialization51 and racism52 can lead to the preference and privilege of
certain groups over others, disparity can result from unguarded, individual, or institution level
decisions that are race-based -intentionally or unintentionally.53
episode of the popular American radio program, This American Life, that bias applies directly to policy interactions
with youth, and arguing that matters where police serve as a “gateway” into the school-to-prison pipeline); This
American Life, Cops See It Differently: Part Two, National Public Radio (Feb. 13, 2015),
www.capradio.org/news/this-american-life/2015/02/15/cops-see-it-differently,-part-two/ (providing examples
through the personal stories of police officers and others).
47Nan S. Park, Pathways and Predictors of Antisocial Behaviors in African American Adolescents from Poor
Neighborhoods, 32 CHILD YOUTH SERV. REV. 409-15 (2010),
h.gov/pmc/articles/PMC2796796/ (identifying antisocial behavior in a sample of poor, inner-city African American youth, and referring to it as “troublesome or dangerous behavior”).
48See, e.g., Brandon K. Crase, When Doing Justice Isn't Enough: Reinventing the Guidelines for Prosecutorial
Discretion, 20 GEORGETOWN J. L. ETHICS 475 (2007), (providing evidence for and discussion about discretion within
the judge system).
49See Wayne Goodall, Sentencing Consistency in the District Courts (2014),
http://researcharchive.vuw.ac.nz/bitstream/handle/10063/3375/thesis.pdf?sequence=2 (unpublished Ph.D.
thesis)(showing data that suggests, for example, that District Court judges from urban areas that are assigned to the
bench in a rural location become comparatively more punitive in their decisions, while rural judges assigned to more
urban areas appear to make less punitive decisions than they otherwise would).
50 Stark Differences in Sentencing Identified, N. Z. L. SOC., (Oct. 11, 2013),
51Racialization is “the overvaluing of particular bodily characteristics or differences that are imbued with a lasting
significance [and which] are produced and reproduced through the support of particular constructions of difference.”
V.R. Dominguez, A Taste for 'The Other,' 35( 4) CURRENT ANTHROPOLOGY 333, 334 (1994).
52In contrast to racialization, racism relates to suppressing or oppressing a group based on similar traits. As Professor
Audrey Smedley, via Encyclopedia Britannica, defines it, racism is “any action, practice, or belief that reflects the
racial worldview—the ideology that humans are divided into separate and exclusive biological entities called races,
and that there is a causal link between inherited physical traits and traits of personality, intellect, morality, and other
cultural behavioral features, and that some races are innately superior to others.” Audrey Smedley, Racism,
53Note that evolving research shows that there is no correlation between rising crime rates, imprisonment and race and
that gang involvement, for example, is not always synonymous with criminal behavior. See, e.g., Bronwyn Naylor,
The Evidence is In: You Can’t Link Imprisonment with Crime Rates, THE CONVERSATION (Apr. 23, 2015),
http://theconversation.com/the-evidence-is-in-you-cant-link-imprisonment-to-crime-rates-40074(looking at global
crime and imprisonment rates to argue that the extent of a country’s use of imprisonment is matter of policy choice
rather than a response to crime, and that increased crime is not driving prison trends as many governments claim);