Justin D. Levinson

• J.D., L.L.M
• Professor at University of Hawaiʻi at Mānoa

Retribution stands at the forefront of America’s criminal justice system. Yet, as Justice Anthony Kennedy cautioned, retribution is also the motive for punishment that “most often can contradict the law’s own ends.” This Article proposes, and then tests empirically, the existence of a novel contradiction of retribution — the idea that race and retr...

White-collar federal fraud sentencing has long been fraught with controversy and criticism. As a result, the U.S. Sentencing Commission's intensive multi-year examination of sentencing for fraud crimes generated tremendous interest among the Department of Justice, criminal defense organizations, the academy, and a wide range of advocacy groups. In...

Stark racial disparities define America's relationship with the death penalty. Though commentators have scrutinized a range of possible causes for this uneven racial distribution of death sentences, no convincing evidence suggests that any one of these factors consistently accounts for the unjustified racial disparities at play in the administratio...

Research has shown that crime concepts can activate attentional bias to Black faces. This study investigates the possibility that some legal concepts hold similar implicit racial cues. Presumption of innocence instructions, a core legal principle specifically designed to eliminate bias, may instead serve as an implicit racial cue resulting in atten...

Commentators idealize a racially fair criminal justice system as one without racial animus. But unjustified racial disparities would persist even if racial animus 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...

Despite cultural progress in reducing overt acts of racism, stark racial disparities continue to define American life. This book is for anyone who wonders why race still matters and is interested in what emerging social science can contribute to the discussion. The book explores how scientific evidence on the human mind might help to explain why ra...

The Article is organized as follows: Part II provides an introduction to implicit bias research, orienting readers to the important aspects of implicit bias most relevant to prosecutorial discretion. Part III begins the examination of implicit bias in the daily decisions of prosecutors. The Part presents key prosecutorial discretion points and spec...

A little after 2:00 a.m. on the first day of 2009, San Francisco Bay Area Rapid Transit (BART) Officer Johannes Mehserle arrived at the Fruitvale BART station after receiving reports of a fight on a train. On arrival, he was directed by another officer to arrest Oscar Grant, who, along with other fight suspects, was sitting on the ground next to th...

Despite cultural progress in reducing overt acts of racism, stark racial disparities continue to define American life. This book is for anyone who wonders why race still matters and is interested in what emerging social science can contribute to the discussion. The book explores how scientific evidence on the human mind might help to explain why ra...

Discussions of race in the United States have taken on an optimistic tone, led by confident commentators who tout America's successful retreat from its racist past. This new, hopeful dialogue comes complete with factual support. For example, racial minorities have reached the pinnacle in government and leadership roles, which positions them atop tr...

Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance wit...

The rapid growth of two prominent areas of legal scholarship with social scientific similarities, behavioral law and economics and implicit racial bias, has overshadowed the fact that scholars have largely failed to consider what happens when phenomena from the two areas collide. In particular, commentators have not investigated whether powerful im...

Commentators have marveled at the continuing lack of gender diversity in the legal profession’s most influential and honored positions. After achieving near equal numbers of male and female law school graduates for approximately two decades, the gap between men and women in law firms, legal academia, and the judiciary remains stark. Several scholar...

Many commentators and judges have come to accept the changing reality of racial discrimination - discrimination that has largely shifted from overt and intentional to covert and unintentional. Despite this scholarly progress, the dearth of empirical studies testing implicit bias within the legal system is surprising. In an effort to begin filling t...

For many legal scholars, startling scientific evidence of implicit racial bias, including the now famous Implicit Association Test (IAT), have revealed a truth about racial discrimination in America that had previously been difficult to prove. Yet despite commentators’ progress in considering how the law should respond to this new evidence of racia...

Despite the historical racial imbalance in capital punishment, interdisciplinary scholarship has failed to investigate fully how the human mind may automatically and systematically facilitate racial bias against African-American defendants in capital cases. Considered in the legal context, well-developed social science principles may help reveal ho...

The incorporation of psychological knowledge into legal models has helped to dramatically improve the law's human and behavioral competence. Each of the three developing areas discussed in this chapter has made great strides in building an accurate legal model of human behavior. Economic models of law that previously ignored systematic deviations f...

In this Article, I claim that judges and jurors unknowingly misremember case facts in racially biased ways. Drawing upon studies from implicit social cognition, human memory research, and legal decisionmaking, I argue that implicit racial biases affect the way judges and jurors encode, store, and recall relevant case facts. I then explain how this...

Behavioral economic research has tended to ignore the role of cultural differences in financial and economic decision-making. The authors suggest that a systematic bias affects existing behavioral economic theory—financial and economic judgments, whether rational or irrational, are often assumed to be universal. The authors conducted an empirical s...

Legal systems that rely on juries assume that juror decision-making imports an accurate representation of community values and norms into legal decisions. Yet, rather than successfully importing community values into legal decision-making, the notion of "the law" itself may act as a unique cultural construct that primes jurors to unconsciously thin...