No trial is free from bias – that includes the acquittal of Kyle Rittenhouse

We assume that the legal profession is free of prejudices. But the role of social inequalities and implicit biases in legal settings is now being understood

The news came as a shock to so many of us. Kyle Rittenhouse was acquitted in his trial on the charge of shooting two people dead, and injuring another at a racial justice protest in Kenosha, Wisconsin, in August 2020. He was aged 17 when he travelled to Kenosha carrying a semi-automatic rifle. Without going into the specifics of this trial, I have been considering how bias plays a role in the criminal justice system.

We assume that the legal profession is free of biases and prejudices. We believe in the law, we trust the neutrality of it, and the objectivity of the people involved in decision-making. But, the role of social inequalities and implicit biases in legal settings is now being understood. Besides biases in racial profiling and stop and search, studies have also shown racial bias in criminal sentencing. These racial inequalities are indicative of both conscious expressions of prejudice (explicit bias) and implicit unconscious prejudices, so subtle that people who hold them might not even be aware of them. As I discussed in my book Sway: Unravelling Unconscious Bias, implicit bias is so pervasive and deeply entrenched in our society that at first, the presence of implicit racial bias raises questions about the fairness of the case outcomes.

Each case sets a precedent for any future cases to follow, and so they can also structure the outcome of any future enquiries. Professor Douglas Rice and colleagues from the department of political science at the University of Massachusetts have recently published research that looks at how implicit bias is deeply entrenched in the language used in the judicial process. They analysed an original dataset of more than one million court opinions from US state and federal courts and found strong and consistent evidence of implicit racial bias. For example, they found that African-American names, such as DeShawn and Jamal, were associated with larger, more violent people who are prone to aggression. Whereas European-American names, such as Connor and Garrett, were more frequently associated with pleasant or positive traits and considered higher in status than “black-sounding” names.

It is easy to dismiss this as a problem only in the US, but according to a report put together in 2017 by the Labour MP David Lammy, young black people are nine times more likely to be locked up in England and Wales than their white peers. It found that 24 per cent of first-time entrants to the Youth Justice system and 54 per cent of the remand population were Bame, while 46 per cent were white. Analysis of custodial sentences received by children and young people showed that, in 2016, young black and other minority ethnic people people were more likely to be sentenced to custody than their white counterparts. In 2017, 45 per cent of children sentenced to custody were Bame.

According to an investigation conducted by The Independent, which analysed figures from 2009-2017, one in four black teenage boys convicted of homicide were handed maximum jail sentences. On the contrary, not one white teenager was sentenced to more than 10 years. The Met Police are four times more likely to use force with black people than white people.

These figures and studies give us a glaring insight into the extent of racial prejudice and the assumed “neutrality” of law-making professionals, and represent yet another huge barrier in achieving racial justice.

Legal analysts have shown that putting Rittenhouse on the stand and hearing his testimony played a key role in swaying the jury’s decision. Rittenhouse broke down in tears on the stand. Along with his young age, this had the effect of humanising him, and creating sympathy amongst the jurors. The jury instructions were also to look at the case and the situation through the “lens and perspective of Kyle Rittenhouse”. We know from research that when we imagine ourselves in the shoes of others, we create an empathetic connection. This can also affect how we perceive them. We feel more connected to them, and thereby more likely to feel an affinity towards them.

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We believe in justice. We believe that everyone has a right to a “fair trial”. But how fair these trials really are, and how much these decisions are swayed by the implicit associations and biases (both conscious and unconscious) of the jury members, as well as that of the judge, is often ignored. The rhetoric of the criminal justice system gives us the message that our society (and our law) carefully protects everyone’s constitutional rights, but in practice it often upholds the systemic biases and hierarchies. These biases play a role, from policing to pre-trials to sentencing.

According to a report submitted by the Sentencing Project to the United Nations in 2018, and statistics from the US Bureau of Justice, African-Americans and Latinos make up 57 per cent of the US prison population, even though they comprise only 29 per cent of the country’s population. The imprisonment rates for African-American and Hispanic adults are 5.9 and 3.1 times the rate for white adults, respectively. In some states in the US, it is even higher.

We would hope that the 12 men and women who served on the jury of the Rittenhouse trial based their decisions solely on the evidence presented at the trial. But we know humans do not work like this. Their gender, race, class, and political ideologies all play a part in shaping their perceptions and attitudes of other people. And, we also know that these decisions are not free of the system and structures that we are all placed in. As we mull over this decision, I cannot help but wonder what the result of this trial would have been if Kyle Rittenhouse was a black man.

Dr Pragya Agarwal is a behavioural and data scientist, author, speaker and founder of research think-tank The 50 Percent Project