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Race, Prison Discipline, and the Law
Andrea C. Armstrong*
Introduction ..................................................................................................................... 759 
I. The Significance of Race? .......................................................................................... 762 
A.  Racial Bias and the Implicit Association Test ...................................... 764 
B.  Implications in Prisons ............................................................................. 768 
II. Facilitating the Influence of Race............................................................................ 773 
A.  Requiring Intent for Racial Discrimination Claims in Prison ............ 773 
B.  Undermining the Intent Requirement in Prisons ................................ 775 
III. Validating the Influence of Race in Prisons ........................................................ 778 
Conclusion ........................................................................................................................ 782 
INTRODUCTION
Indeed, the most important thing to know about the nature of prejudice
is that it is ever present in human behavior and cognition. It remains
sufficiently in the background such that it eludes conscious awareness
and immediate individual control, yet it is often consequential in everyday
life. Its capacity to affect social judgment and behavior without personal
animus or hostility is dismissed or ignored at some peril . . . .1
Prisons are closed institutions, with little transparency or oversight.2 Judicial
oversight of prison administrative decisions is deferential in almost every respect.
Courts apply deferential standards of review to a range of prison administrative
decisions, from the restriction of otherwise fundamental rights3 to discipline of the
* Associate Professor of Law, Loyola University New Orleans College of Law; Yale ( J.D.); Princeton
(M P.A). Thanks to Jean Ewing, Jancy Hoeffel, Robert Verchick, and Loyola University New
Orleans’s faculty colloquium for thoughtful comments and suggestions. Thanks also to Brittany
Beckner, Emma Douglas, Annie McBride, and Emily Posner for dedicated research assistance for this
Article and to the Dean of Loyola University New Orleans College of Law for financial support
during the writing of this Article. I would also like to thank Professor Mario Barnes, the UC Irvine Law
Review, and all of the hardworking students and staff for providing a place to discuss these issues at
the CLEaR symposium on “The Interplay of Race, Gender, Class, Crime and Justice.”
1. Curtis D. Hardin & Mahzarin R. Banaji, The Nature of Implicit Prejudice: Implications for Personal
and Public Policy, in THE BEHAVIORAL FOUNDATIONS OF PUBLIC POLICY 13, 23 (Eldar Shafir ed.,
2013).
2. Andrea C. Armstrong, No Prisoner Left Behind? Enhancing Public Transparency of Penal
Institutions, 25 STAN. L. & POL’Y REV. 435, 469–75 (2014).
3. Turner v. Safley, 482 U.S. 78, 89 (1987) (upholding restriction on inmate correspondence
but denying restriction on inmate marriage).

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incarcerated. From lesser expectations of privacy to limited rights of association
and speech, the Supreme Court has deferred to the judgment of prison
administrators that the curtailment of rights is essential to maintaining order and
security within the prison walls.
Incarceration, by definition involuntary, demands that penal institutions have
the means to ensure compliance from the detained. Thus some abbreviation of
rights for the incarcerated is not only understandable but also necessary.
Moreover, penal institutions, by virtue of maintaining custody of individuals, are
also responsible for protecting inmates from harm by other inmates and staff.
Similarly, as employers, penal institutions must also ensure the safety of their staff.
The threat of violence within penal institutions is real.4 Faced with balancing the
heavy burden of protection and more searching judicial oversight, courts have
adopted a deferential approach to the management of penal institutions.5
Nevertheless, the people who work in these closed institutions are subject to
the same biases and psychological phenomena as the general public. Studies
increasingly demonstrate the prevalence of unconscious racial bias in the general
public,6 but we have yet to examine the influence of unconscious racial bias within
the prison system. While the intersection of prison and race is not new, only a few
scholars have examined this intersection within the prison walls. Michelle
Alexander’s book, The New Jim Crow, has significantly expanded the conversation
on how criminal justice laws and policies disproportionately incarcerate African
Americans.7 Loïc Wacquant demonstrates that our laws and policies result in the
hyperincarceration of urban African Americans.8 Discussions about prison and
race have, by and large, mostly focused on the demographic flows to and from
prisons, not the potential interactions within prison walls.
Nor has the Court engaged with the implications of unconscious racial bias
in prison administration. Unlike the Court’s deferential review of most other
constitutional claims by prisoners, for claims of racial discrimination in prison, the
Court applies strict scrutiny, the most difficult level of scrutiny to satisfy.9 But to
invoke this standard, the Court requires proof of discriminatory intent.10 Proving
such intent is often insurmountable for plaintiffs, particularly when multiple
decision makers are involved and the ease of cloaking improper motives in race-

4. Jens Modvig, Violence, Sexual Abuse, and Torture in Prisons, in PRISONS AND HEALTH 19, 19
(Stefan Enggist et al. eds., 2014).
5. Michael B. Mushlin & Naomi Roslyn Galtz, Getting Real About Race and Prisoner Rights, 36
FORDHAM URB. L.J. 27, 32–35 (2008).
6. See infra Part I.
7. See generally MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE
AGE OF COLORBLINDNESS (rev. ed. 2012).
8. Loïc Wacquant, Class, Race & Hyperincarceration in Revanchist America, DÆDALUS, Summer
2010, at 74.
9. Johnson v. California, 543 U.S. 499, 511 (2005).
10. Washington v. Davis, 426 U.S. 229, 239 (1976) (creating an intent requirement for
allegations of disparate impact under the Equal Protection Clause of the Fourteenth Amendment).

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neutral considerations exists.11 Despite the lack of engagement by the Court, I
trace the ways in which unconscious racial attitudes may still play a role in prison
disciplinary decisions and argue that the legal standards governing prison decisions
may facilitate and validate the use of these racial norms.
This Article surveys three previously unconnected areas of analysis: implicit
bias, prison disciplinary rules, and judicial deference to correctional decisions. It
traces the possible connections from the statistical evidence on the significance of
race to the potential impact of race on prison disciplinary decisions and to the
legal validation of these racial norms through judicial deference. In so doing, this
Article hopes to begin a dialogue that identifies several entry points for discussing
the ramifications of race within correctional facilities.
In 1980, Eric Poole and Robert Regoli published a groundbreaking statistical
analysis of the role of race in prison disciplinary decisions in a medium security
Southern prison.12 Their analysis demonstrated that the race of an inmate was
correlated with the disciplinary decisions of correctional officers.13 Scholars such
as Sharon Dolovich and Philip Goodman have analyzed the role of race in
California facilities based on extensive ethnographic research.14 Professor Michael
Mushlin has noted that judicial standards on racial discrimination, focusing
exclusively on discriminatory intent, fundamentally misunderstand race as a
psychological process.15 More generally, this Article is part of a broader critical
race praxis that incorporates social science findings to distill the ways in which
race is embedded in our social, legal, and economic institutions.16
Building on these important insights, I first explore how implicit bias could
influence prison disciplinary decisions, and second, I examine the role of the law
in validating these race-based decisions. The law arguably facilitates the influence
of implicit bias on prison disciplinary proceedings by requiring proof of conscious
discriminatory intent. Implicit racial biases by correctional officials may then be
validated through judicial deference to prison disciplinary rules and decisions.
It is also important to clearly state what this Article does not address. As

11. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious
Racism, 39 STAN L. REV. 317, 319 (1987) (recounting criticisms of the intent requirement established
in Washington).
12. Eric D. Poole & Robert M. Regoli, Race, Institutional Rule Breaking, and Disciplinary Response:
A Study of Discretionary Decision Making in Prison, 14 LAW & SOC’Y REV. 931 (1980).
13. Id. See also infra Part II for a deeper discussion of this study.
14. See generally Sharon Dolovich, Strategic Segregation in the Modern Prison, 48 AM. CRIM. L. REV.
1 (2011) (analyzing the role of race in her ethnographic study of Los Angeles county jail’s K6G unit
for gay men and transgender women); Philip Goodman, “It’s Just Black, White, or Hispanic”: An
Observational Study of Racializing Moves in California’s Segregated Prison Reception Centers, 42 LAW & SOC’Y
REV. 735 (2008) (arguing that prison housing decisions are racialized through collaborative
settlements between offenders and correctional staff based on observational study).
15. Mushlin & Galtz, supra note 5, at 40–41.
16. See Devon W. Carbado & Daria Roithmayr, Critical Race Theory Meets Social Science, 10 ANN.
REV. L. SOC. SCI. 149, 149–51 (2014) (summarizing the increasing collaborations between critical race
theorists and social scientists and assessing the benefits and costs of such collaborations).

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noted earlier, there is little public information on prison disciplinary decisions,
particularly with regard to the race of the punished inmate. There is little to no
information about whether certain disciplinary charges are actually used or only
exist on paper. And there are no modern studies examining unconscious biases by
correctional employees. It is possible that race does not play a role (or at least not
a significant one) in prison disciplinary decisions today. In over 150 interviews
with correctional staff and inmates across three facilities in California, Professors
Kitty Calavita and Valerie Jenness noted the “relative absence” of race during
these discussions.17 Perhaps, as some have theorized with regards to the police,18
race is simply less salient than one’s status as an inmate or correctional officer.
Calavita and Jenness caution that race is clearly “embedded” in the carceral
institution, even if race was not central to their interviews of prisoners and
correctional staff.19 For example, they note that certain California Department of
Corrections and Rehabilitation facilities remain de facto racially segregated.20
Hence, I do not argue that prison correctional officials are racially biased against
minorities, nor do I argue that this bias is present in prison disciplinary decisions.
Rather, this Article considers the potential implications of implicit bias research in
the prison disciplinary context in light of existing legal doctrine. As such, this
Article presents a thought experiment that assesses the implications of existing
research.
Part I of this Article discusses how implicit bias could affect prison decisionmaking. Given the lack of modern psychological studies of correctional officials
and implicit bias, this section draws on studies of implicit bias in the population at
large as well as implicit bias in the criminal justice system. Part II discusses how
courts may facilitate the influence of implicit race bias by requiring discriminatory
intent, even in penal facilities where circumstances would favor allowing implicit
bias claims. Part III examines the legal standards governing judicial review of
prison disciplinary rules and decisions and concludes that judicial deference may
validate the improper influence of race on prison-staff decision-making.
I.

THE SIGNIFICANCE OF RACE?

This Article starts with the premise that race is a social construct.21 While
there may be biological markers of race, such as a person’s skin tone, facial
features, or hair, the significance (or meaning attributed to) race is a result of

17. KITTY CALAVITA & VALERIE JENNESS, APPEALING TO JUSTICE: PRISONER
GRIEVANCES, RIGHTS, AND CARCERAL LOGIC 190 (2015).
18. Liyah Kaprice Brown, Officer or Overseer?: Why Police Desegregation Fails as an Adequate Solution
to Racist, Oppressive, and Violent Policing in Black Communities, 29 N.Y.U. REV. L. & SOC. CHANGE 757,
789–90 (2005).
19. CALAVITA & JENNESS, supra note 17, at 191.
20. Id. at 18.
21. Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication,
and Choice, 29 HARV. C.R.-C.L. L. REV. 1, 27 (1994).

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historical patterns of power and interactions among races.22 In American history, a
person’s (perceived) biological race was used to structure family,23 access to the
State,24 and goods or services.25 Laws regulated the relationships between
members of different races.26 White supremacy in American history was built and
maintained through ensuring the superiority of White persons in the political,
economic, and social spheres. Moreover, White supremacy was justified through
denigrating other races.27 Blacks were “shiftless” and “criminal.”28 People of Asian
descent were “sneaky.”29 Latinos were “dirty” or “less intelligent.”30 While the
Supreme Court has rejected the once-blatant discrimination of yore, many of the
cultural tropes about the characteristics of members of particular races persist.
We see this persistence when a White male “find[s]” food from a grocery
store in the immediate aftermath of Hurricane Katrina, whereas an African
American in the exact situation is described as “looting.”31 Associations between
race and character are clear when the media portrays a Black teenager killed by
police as a “thug,”32 but a headline for a White teenager pleading guilty to killing

22. See id. Professor Jerry Kang further deconstructs this idea into the following three
steps:
[An individual] classifies [another] individual into a (1) racial category according to relevant
(2) mapping rules provided to us by culture and any specific rules relevant to the context.
Once that mapping is performed—typically instantaneously—a set of (3) racial meanings is
activated that alters the way that the perceiver interacts with the target.
Jerry Kang, Implicit Bias and the Pushback from the Left, 54 ST. LOUIS U. L.J. 1139, 1143 (2010) (citation
omitted).
23. For example, African American slaves lost the right to raise their children, since the
children of slaves were considered to be property of the owner and therefore eligible for sale or legal
transfer to a new owner. See Thomas D. Russell, Articles Sell Best Singly: The Disruption of Slave Families at
Court Sales, 1996 UTAH L. REV. 1161, 1162–63 (1996) (arguing that legal institutions facilitated the
separation of slave families through conducting court sales and masking individual human decisions
to sell slaves as individual and not group items).
24. See Ex parte Shahid, 205 Fed. 812, 813 (E.D.S.C. 1913) (noting that naturalization was
limited to free White persons and those of African descent, necessarily excluding Native Americans,
Chinese, Japanese, and Malays from the benefits of citizenship).
25. See Plessy v. Ferguson, 163 U.S. 537 (1896).
26. See Loving v. Virginia, 388 U.S. 1 (1967) (striking down Virginia’s miscegenation law
forbidding marriage between members of other races).
27. Dred Scott v. Sandford, 60 U.S. (1 Black) 393, 421–22 (1856) (arguing that the character
of “Negroes” justified denial of U.S. citizenship for jurisdictional purposes); see, e.g., Johnson v.
M’Intosh, 21 U.S. (1 Wheat.) 543, 589 (1823) (noting the “habits” of Native American tribes also
justified White ownership of the land).
28. Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation
in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1373 (1988).
29. Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, PostStructuralism, and Narrative Space, 81 CALIF. L. REV. 1241, 1258 (1993) (placing the “model minority”
myth in context and demonstrating its harms).
30. Juan F. Perea, Buscando América: Why Integration and Equal Protection Fail to Protect Latinos,
117 HARV. L. REV. 1420, 1442–43 (2004).
31. Cheryl I. Harris, Whitewashing Race: Scapegoating Culture, 94 CALIF. L. REV. 907, 931
(2006) (reviewing MICHAEL K. BROWN ET AL., WHITEWASHING RACE: THE MYTH OF A COLORBLIND SOCIETY (2003)).
32. Rasheena Latham, Who Really Murdered Trayvon? A Critical Analysis of the Relationship Between

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three students at school notes the teenager was described as a “fine person.”33
When employers choose to interview a White applicant over a Black applicant,
and the only difference between the two resumes is the name, racial stereotypes
are present.34 When professors are more likely to answer an email from a student
with a White-associated name versus a student with a minority-associated name,
racially-based assumptions may play a role.35 While the above situations are
drastically different, a common theme in each is implicit associations between
character and race.
A word of caution is appropriate here. The racial associations in the above
situations may or may not be consciously “racist” (i.e., the individuals making the
associations may or may not explicitly assign value to racial differences to benefit
themselves or harm their victims to justify the actor’s “own privileges or
aggression”).36 Indeed, cognition studies demonstrate that “the operation of
prejudice and stereotyping in social judgment and behavior does not require
personal animus, hostility or even awareness.”37 Rather the point in raising
evidence of implicit bias and cross-cultural issues is to demonstrate that, even
absent such explicit intentions, our unconscious associations and understandings
have meaning38—a meaning that is particularly relevant within prisons.
A. Racial Bias and the Implicit Association Test
Statistical evidence indicates that race could matter in prison disciplinary
decisions. Poole and Regoli’s 1980 study, finding that race influences discretionary
disciplinary decisions, was relatively narrow.39 First, the authors did not study the
entire disciplinary process, including disciplinary hearings or appeals, but rather
Institutional Racism in the Criminal Justice System and Trayvon Martin’s Death, 8 S.J. POL’Y & JUST. L.J. 80, 82
n.15 (2014) (contrasting media coverage of Trayvon Martin, an African American homicide victim,
with Adam Lanza, a non-Black assailant at Sandy Hook Elementary School); see also Bill Chappell,
People Wonder: ‘If They Gunned Me Down,’ What Photo Would Media Use?, NPR: THE TWO WAY (Aug. 11,
2014, 2:17 PM), http://www.npr.org/blogs/thetwo-way/2014/08/11/339592009/people-wonder-ifthey-gunned-me-down-what-photo-would-media-use (discussing the #IfTheyGunnedMeDown hashtag
and the media choice of photos for Black victims).
33. Nick Wing, When the Media Treats White Suspects and Killers Better than Black Victims,
HUFFINGTON POST (Aug. 14, 2014, 8:59 AM), http://www.huffingtonpost.com/2014/08/14/mediablack-victims_n_5673291.html [http://perma.cc/VS5W-M774] (collecting examples of headline
descriptions of Black victims and White suspects).
34. Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable than
Lakisha and Jamal?: A Field Experiment on Labor Market Discrimination (Nat’l Bureau of Econ. Research,
Working Paper No. 9873, 2003), http://www.nber.org/papers/w9873.
35. Katherine L. Milkman et al., What Happens Before?: A Field Experiment Exploring How Pay and
Representation Differentially Shape Bias on the Pathway into Organizations 17 n.5 (2014), http://ssrn
.com/abstract=2063742.
36. ALBERT MEMMI, DOMINATED MAN: NOTES TOWARDS A PORTRAIT 194 (1968).
37. Hardin & Banaji, supra note 1, at 3.
38. But see L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 OHIO ST. J.
CRIM. L. 115, 119–20 (2014) (noting that self-threats, such as threats to status, perceived disrespect,
and chronic stress or self-loathing may also play a role in hegemonic racial violence).
39. Poole & Regoli, supra note 12, at 932.

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focused on front-line correctional officer decisions as to whether to report a
prison violation.40 Second, the authors only analyzed seven major violations,41
specifically excluding “ambiguous” charges such as “being disrespectful to staff,
menacing or disruptive language,” and “using improper or indecent language or
gestures.”42 But even within this narrow study, the authors found that race played
a role.
The Poole and Regoli data indicate that “[w]hile black and white inmates
were equally likely to engage in rule-breaking activity, they were not equally likely
to be reported for rule infractions.”43 The race of the offender affected
discretionary disciplinary decision-making in two distinct ways. First, a prison
guard was more likely to report an offender for a rule violation if the offender was
African American.44 Second, race produced an indirect effect by enhancing the
importance of a prior disciplinary record.45 Since Black inmates were more likely
to be reported, they were also more likely to have prior disciplinary histories.46
Moreover, the importance assigned to a prior disciplinary history differed
depending on the race of the offender.47 “For whites, rule violations and prior
record explain 13.5 and 3.6 percent, respectively, of the variation in disciplinary
actions. For blacks, prior record alone accounts for 48.8 percent of the variation in
formal response, with rule infractions contributing an additional 2.4 percent.”48
Poole and Regoli focused on statistically identifying the probability that a
prisoner’s race correlated with his or her disciplinary experience.49 Although we
lack modern studies similar to the Poole and Regoli study to prove that race is a
statistically significant factor in prison disciplinary decisions, other psychological
studies suggest that race may continue to play a role.
The “Implicit Association Test” (IAT) is one of many social cognition
studies examining an individual’s automatic and unconscious response to certain
stimuli as distinct from his or her explicit or consciously stated responses.50 “The
IAT measures the strength of associations between concepts (e.g., black people,
gay people) and evaluations (e.g., good, bad) or stereotypes (e.g., athletic,
clumsy).”51 Associations between race and evaluations are not static, but they can

40. Id.
41. Id. at 934–35 n.3. The major infractions surveyed included: out of area, gambling,
possession of contraband (e.g., drugs, weapons, monies), refusal to obey staff order, theft, fighting,
and destroying property. Id.
42. Id. at 936 n.7.
43. Id. at 944.
44. Id. at 943–44.
45. Id.
46. Id.
47. Id. at 944.
48. Id. at 942.
49. Id. at 933.
50. About the IAT, PROJECT IMPLICIT, https://implicit.harvard.edu/implicit/iatdetails.html
[https://perma.cc/63PA-RX2B] (last visited Oct. 4, 2015).
51. Id.

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be difficult to change.52 Moreover, these implicit racial associations are moderately
better predictors of future behavior than explicit or conscious associations.53
In general, these social cognition tests demonstrate that we are not
“cognitively colorblind.”54 Brian Nosek examined the results of seventeen IAT
tests over a six-year period with a cumulative total of 2.5 million study
participants.55 He found a preference for Whites over Blacks, White children over
Black children, and lighter skin over darker skin.56 Participants more quickly
associated the word “bad” with Black or darker skin and “good” with White or
lighter skin.57
The IAT data is generally consistent, regardless of the race of the participant.
For example, in an IAT study of fifty participants, thirty-one of whom were
White, with the remaining members of minority groups or multiracial, eighty
percent of the participants demonstrated a preference for White over Black, i.e. a
positive association of White with good and Black with bad.58 Thus, a Black
person may have an implicit bias or preference for Whites over Blacks.59 This is
especially important in the field of corrections. Blacks and Latinos are
disproportionately incarcerated relative to their overall population demographic,60
but correctional officers come in all colors and are increasingly diverse.61 Thus the
analysis of implicit bias is not limited to pairings of White correctional officers
and Black offenders but rather is instructive regardless of the race of either the
correctional officer or the offender.
These implicit associations matter in the real world, particularly when
perception of threat or crime is concerned. In one study, participants were asked

52. Jennifer A. Joy-Gaba & Brian A. Nosek, The Surprising Limited Malleability of Implicit Racial
Evaluations, 41 SOC. PSYCHOL. 137, 145 (2010); see also Hardin & Banaji, supra note 1, at 7.
53. CHERYL STAATS & CHARLES PATTON, KIRWAN INSTITUTE, STATE OF THE SCIENCE:
IMPLICIT BIAS REVIEW 26–27 (2013).
54. Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA
L. REV. 465, 473 (2010).
55. Brian A. Nosek et al., Pervasiveness and Correlates of Implicit Attitudes and Stereotypes, 18 EUR.
REV. SOC. PSYCHOL. 1 (2007).
56. Id. at 3–4.
57. Id. at 17.
58. Damian A. Stanley et al., Implicit Race Attitudes Predict Trustworthiness Judgments and Economic
Trust Decisions, 108 PROC. NAT’L. ACAD. SCI. 7710, 7713–14 (describing results and demographics of
Study 1, which focused on the relationship between an individual’s implicit bias and his/her
determinations of whether an unfamiliar Black or White man was trustworthy).
59. Hardin & Banaji, supra note 1, at 11 (“[A] surprising number of African Americans exhibit
implicit preference for whites over blacks.”). These findings should not obscure the fact, however,
that studies also demonstrate that eighty percent of Whites and Asians have an implicit bias against
Blacks. Id. at 18.
60. See SAMUEL WALKER ET AL., THE COLOR OF JUSTICE: RACE, ETHNICITY, AND CRIME
IN AMERICA 410–11 (1996) (describing the historic disproportionate incarceration of Blacks in the
U.S.).
61. Id. at 410 (describing equitable representation of Blacks in correctional supervision and
custodial staff, while noting that employment of Latino/as in the correctional field is lacking).

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to categorize images as either a weapon or a tool.62 Prior to categorizing the
image, a picture of a Black or White face flashed onscreen.63 Participants were
more likely to falsely identify an item as a weapon when a Black face appeared on
screen than when a White face appeared on the screen.64 This weapons bias is
present in other studies, including one where participants were quicker to shoot an
armed Black person than an armed White person.65 Participants were
correspondingly slower to “not shoot” when confronted with a picture of a
weaponless Black person compared to a weaponless White person.66 These results
were consistent regardless of the race of the deciding participant.67 The perception
of non-White individuals as “threats” is also clearly demonstrated in studies on
police use of force.68 Psychological studies document pervasive associations
between Blackness and criminality.69 One of the leaders in implicit bias studies
concludes that, “police consistently use greater lethal and non-lethal force against
non-white suspects than white suspects.”70
An implicit preference for Whiteness is also evident in harder to measure
interpersonal relations. Where a person’s IAT reflects a preference for Whites,
studies show that person is more likely to trust a White person over a Black
person.71 In addition, another study indicates that “implicit racial prejudice among
whites predicts quickness to perceive anger in black faces but not white faces.”72
Together, these two studies could be interpreted to imply that individuals with an
implicit preference for White are more likely to give the “benefit of the doubt”73
to a White individual over a Black individual. This “benefit of the doubt”
advantage may also play a role in guilty/not-guilty determinations. For example, in
a study of mock jurors, the IAT, and guilty/not-guilty determinations, study
participants held strong associations between Black-and-guilty relative to Whiteand-guilty.74 These implicit associations predicted the way mock jurors evaluated
ambiguous evidence, such that where the evidence was unclear, the race of the
mock defendant helped tip the balance.75
62. B. Keith Payne, Weapon Bias: Split-Second Decisions and Unintended Stereotyping, 15 CURRENT
DIRECTIONS PSYCHOL. SCI. 287, 287 (2006).
63. Id.
64. Id.
65. Kang & Lane, supra note 54, at 482.
66. Id.
67. Hardin & Banaji, supra note 1, at 8.
68. Id. at 8–9.
69. Jennifer L. Eberhardt et al., Seeing Black: Race, Crime, and Visual Processing, 87 J.
PERSONALITY & SOC. PSYCHOL. 876, 889–91 (2004).
70. Hardin & Banaji, supra note 1, at 9.
71. Stanley et al., supra note 58, at 7711.
72. Hardin & Banaji, supra note 1, at 10.
73. Robert J. Smith et al., Implicit White Favoritism in the Criminal Justice System, 66 ALA. L. REV.
871, 913 (2015).
74. Justin D. Levinson et al., Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit
Association Test, 8 OHIO ST. J. CRIM. L. 187, 190 (2010).
75. Id.

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The application of these general implicit bias studies to decisions made
within a penal facility raises additional questions. The IAT research to date
demonstrates that most individuals have an implicit preference for White over
Black. But perhaps correctional officers, due to their training, are different? An
IAT study by Joshua Correll et al. specifically examined the differences between
police and members of the general community and found that police training
could decrease the influence of racial bias on shoot/nonshoot decisions.76 But
notably, the study authors did not conclude that training eliminated the influence
of implicit biases. One potential implication of this study is that we should not
assume a 1:1 application of the IAT data from the general public to the decisions
by correctional officers. Rather, depending on the training in a given facility, the
salience of racial implicit bias may be lessened.
B. Implications in Prisons
Prisoners are subject to disciplinary rules that penalize behavior that
otherwise would not be punishable outside the prison walls. Disciplinary codes
prohibit inmates from minor acts (such as disrespect) as well as major acts (such
as fighting or possession of contraband).77 If an inmate is caught engaging in a
disciplinary violation, correctional staff may, at their discretion, issue a conduct
report citing the behavior and the violation.78 Under the Court’s due process
jurisprudence, prisoners are entitled to notice and a meaningful opportunity to be
heard prior to the imposition of sanctions if a liberty or property interest is at
stake.79 At a disciplinary hearing, the inmate may offer evidence or testify to rebut
the disciplinary charge.80 The hearing officer (or committee in some
circumstances) will decide whether the inmate is responsible and, if so, authorize
sanctions as a punishment for the violation.81 Punishments may be relatively
minor, such as losing canteen purchasing privileges, or major, such as losing goodtime credits or disciplinary segregation in a single cell for twenty-three hours a
day.82 Despite the impact of these potential punishments, federal courts have
denied challenges that specific disciplinary provisions are unconstitutionally
vague.83 These decisions are particularly noteworthy given the interplay between
76. Joshua Correll et al., Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to
Shoot, 92 J. PERSONALITY & SOC. PSYCH. 1006, 1022 (2007).
77. See, e.g., TENN. DEP’T OF CORR., DEFINITIONS OF DISCIPLINARY OFFENSES 2–3 (2014),
https://www.tn.gov/assets/entities/correction/attachments/502-05.pdf [https://perma.cc/F9835DFQ].
78. See Donald F. Tibbs, Peeking Behind the Iron Curtain: How Law “Works” Behind Prison Walls,
16 S. CAL. INTERDISC. L.J. 137, 147–50 (2006) (summarizing the disciplinary process in Wisconsin).
79. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 556–59, 563–71 (1974).
80. Id. at 566.
81. Id. at 571.
82. See, e.g., Tibbs, supra note 78, at 145–46 (listing types of punishment).
83. See infra Section II.B; see also James E. Robertson, “Catchall” Prison Rules and the Courts: A
Study of Judicial Review of Prison Justice, 14 ST. LOUIS UNIV. PUB. L. REV. 153, 166 (1994) (discussing
cases).

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the broadly defined provisions and the potential influence of implicit racial
preferences.
In general, disciplinary rules are a necessary tool for maintaining order and
security in prisons by imposing consequences beyond incarceration on
noncompliant inmates. Inmates, by virtue of their criminal conviction and
sentence to incarceration, are involuntary twenty-four-hour residents in
institutions. As a consequence, prisoners forsake many of the rights and privileges
enjoyed in their prior lives. These rules “simultaneously structure daily life and
provide the means, or at minimum the rationale, to mete discipline as a form of
social control.”84 Institutional imperatives, such as efficiency and order, may also
play a role by requiring uniform treatment of all inmates, such as lights-out
policies and meal times.
Disciplinary rules may cover the mundane (dress code violations85) to the
criminal (prohibition on assault86 or arson87). In some cases, disciplinary rules may
even be counterintuitive. For example, in Tennessee, attempted suicide is a
midlevel disciplinary infraction.88 An unsuccessful suicide could be punished by up
to five days in punitive segregation and/or a loss of up to two months of goodtime credit.89 While the intent of the policy may be to prevent suicides, it
simultaneously provides an unintended incentive to make sure that suicide
attempts are successful. But many of the disciplinary rules—even though
punishing conduct that would be noncriminal outside of the prison walls—are
directly related to prison security. For example, prisons prohibit the possession of
“free-world money”90 to curb illegal sales within prisons. If a prisoner is found
responsible or guilty of a violation, punishments can include loss of certain
privileges.
Disciplinary violations are all too common in carceral institutions. The latest
data from 2004, which is based on nationally representative subsamples, indicates
that just under half of all state and federal inmates were found guilty of a
disciplinary offense.91 Some scholars have focused on how the experience (and
deprivations) of prison, such as overcrowding or sentence length, predicts the

84. Tibbs, supra note 78, at 138 (ethnographic study of prison life in Wisconsin).
85. See, e.g., TENN. DEP’T OF CORR., supra note 77, at 2.
86. Id. at 1.
87. Id.
88. Id. Attempted suicide is defined as a “[s]ituation in which an individual has performed an
actual or seemingly life-threatening behavior with the intent of jeopardizing his/her life or presenting
the appearance of such intent, but which has not resulted in death.” Id.
89. TENN. DEP’T OF CORR., DISCIPLINARY PUNISHMENT GUIDELINES 7 (2012),
https://www.tn.gov/assets/entities/correction/attachments/502-02.pdf [https://perma.cc/U4WMR5XL].
90. See, e.g., TENN. DEP’T OF CORR., supra note 77, at 6.
91. Katarzyna Celinska & Hung-En Sung, Gender Differences in the Determinants of Prison Rule
Violations, 94 PRISON JOURNAL 220, 227 (2014). The Celinska & Sung study relied on data from the
2004 Survey of Inmates in State and Federal Correctional Facilities by the Department of Justice. Id.
at 224.

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probability of disciplinary infractions.92 Certainly, some of the rule-breaking
behavior can also be attributed to the steady increase of the mentally ill in our
carceral institutions.93 “Jails and prisons have become, in effect, the country’s
front-line mental health providers.”94 Other scholars argue that the disciplinary
violations may be predicted based on an inmate’s personal characteristics, such as
prior abuse, criminal history, age, race, or sex.95 Even without the benefit of
modern implicit bias studies within the correctional setting, it is nevertheless
worth thinking about the implications of the existing IAT studies for prison
discipline.
First, minority offenders may be more likely to be perceived as a disciplinary
threat by correctional officers, regardless of an offender’s actual behavior.96 For
example, a correctional officer may be more likely to perceive contraband in a
Black offender’s hand than in a White offender’s hand. A prison guard may also
decide more quickly that a Black offender is a threat as compared to a White
offender, leading perhaps to increased citations for Black offenders. It is also
possible that the threat is exaggerated for minority offenders, and therefore,
minority inmates may face more serious conduct reports than their fellow White
inmates for the same type of behavior.
Implicit bias studies may also implicate the severity of the punishment an
offender would receive for a rule violation. In the death penalty context,
researchers found that a defendant is more likely to be sentenced to death when
the defendant has more stereotypical Black features, even controlling for the type
of crime and mitigating evidence presented.97 Underlying this study is the implicit
association between a person’s race and whether that person is intrinsically good
or bad. Thus, a defendant with stereotypical Black features may be more likely to
be perceived as fundamentally bad and therefore beyond rehabilitation. These
results are consistent with evidence of implicit racial bias by prosecutors in
discretionary requests for downward departures in federal sentencing.98 Blacks and
Hispanics in particular were less likely to receive lesser sentences in return for a
defendant’s “substantial assistance,” even when controlling for the severity of the

92.
93.

Id. at 222–24.
HUMAN RIGHTS WATCH, ILL-EQUIPPED: U.S. PRISONS AND OFFENDERS WITH
MENTAL ILLNESS 16 (2003), http://www.hrw.org/reports/2003/usa1003/usa1003.pdf [http://
perma.cc/S2QR-V4C4].
94. Id.
95. Celinska & Sung, supra note 91, at 222.
96. Certainly these attitudes implicate the likelihood of the use of force on inmates, but use of
force is beyond the scope of this Article. Instead, I focus on the implications of these attitudes for
disciplinary proceedings.
97. Brian A. Nosek & Rachel G. Riskind, Policy Implications of Implicit Social Cognition, 6 SOC.
ISSUES & POL’Y REV. 113, 127 (2012).
98. John Tyler Clemons, Note, Blind Injustice: The Supreme Court, Implicit Racial Bias, and the
Racial Disparity in the Criminal Justice System, 51 AM. CRIM. L. REV. 689, 696–97 (2014) (linking implicit
bias studies of law enforcement with decision-making by prosecutors).

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crime.99 In the prison disciplinary context, this implicit bias could lead to
enhanced or more severe punishments for Black inmates than for White inmates
committing the same violation.
Finally, implicit bias may be particularly relevant for the minor or ambiguous
conduct charges 100 excluded from the Poole and Regoli study. Some prison rules
are designed as “vaguely worded ‘catchall’ rules” (i.e., rules that are so broadly
defined that they provide wide discretion to prison guards tasked with maintaining
order).101 These “catchall” rules almost always pertain to an inmate’s attitude rather
than conduct, and they can include prohibitions on “insolence,” “insubordination,”
and “disrespect.”102 In a 1994 survey, Professor James Robertson noted that at
least twenty-four states could punish an inmate’s demeanor.103 An inmate’s
attitude is also relevant for broadly defined disciplinary charges, such as
“disruptive”104 or “disorderly” behavior or to charges prohibiting “any conduct”
indicative of a security threat.105
But what exactly do these terms mean? In Shaw v. Murphy, an inmate was
charged with “insolence” for writing a letter to a fellow inmate offering assistance
defending against a charge of assaulting a correctional officer.106 “Insolence” was
defined as “words, actions or other behavior which is intended to harass or cause
99. David B. Mustard, Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S.
Federal Courts, 44 J.L. & ECON. 285, 293, 308–09 (2001).
100. See infra Part II for a deeper discussion of the prison disciplinary system and vague or
ambiguous charges.
101. Douglas Dennis, Foreword: A Consumer’s Report, 14 ST. LOUIS U. PUB. L. REV. 1, 12
(1994); see, e.g., Robertson, supra note 83, at 168–69 (1994).
102. See ILL. ADMIN. CODE tit. 20. 504. App. A, § 304 (West, Westlaw through 2015 Ill.
Register) (defining insolence as “[t]alking, touching, gesturing, or other behavior that harasses, annoys,
or shows disrespect”); AL. DEP’T OF CORR., MALE INMATE HANDBOOK 47 (2013) (defining
insubordination as “[a]ny act, gesture, remark, or statement that reflects disrespect to authority”);
N.C. DEP’T OF PUB. SAFETY PRISONS, INMATE DISCIPLINARY PROCEDURES 4 (2014), http://
www.doc.state.nc.us/dop/policy_procedure_manual/b200.pdf [http://perma.cc/8WFY-B5EW]
(prohibiting “[d]irect[ing] toward or us[ing] in the presence of any State official, any member of the
prison staff, any inmate, or any member of the general public, oral or written language or specific
gestures or acts that are generally considered disrespectful, profane, lewd, or defamatory” (emphasis
added)); OR. DEP’T OF CORR., PROHIBITED INMATE CONDUCT AND PROCESSING DISCIPLINARY
ACTIONS, RULES OF MISCONDUCT § (2)(h), 2.12 (2014), http://arcweb.sos.state.or.us/pages/rules/
oars_200/oar_291/291_105.html [http://perma.cc/JEU7-9DG2] (“An inmate commits Disrespect
III when he/she directs hostile, sexual, abusive or threatening language or gestures, verbal or written,
towards or about another person.” (emphases added)).
103. Robertson, supra note 83, at 170.
104. See MICH. DEP’T OF CORR., POLICY DIRECTIVE NO. 03.03.105, PRISONER DISCIPLINE
18 (2012), http://www.michigan.gov/documents/corrections/0303105_382060_7.pdf [http://perma
.cc/E4C7-H882] (defining “Creating a Disturbance” as “[a]ctions or words of a prisoner which result
in disruption or disturbance among others but which does not endanger persons or property”). In
contrast to many of the other disciplinary infractions, there are no common examples listed to narrow
the circumstances in which this could apply.
105. Robertson, supra note 83, at 170–71.
106. Shaw v. Murphy, 532 U.S. 223, 225–26 (2001) (holding no First Amendment right to
provide legal assistance to fellow inmates and remanding for consideration of Turner factors for the
prisoners’ vagueness claims).

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alarm in an employee” and could include “cursing; abusive language, writing or
gestures directed to an employee.”107 In Smith v. Mosley, “insubordination”
consisted of writing a letter to the assistant warden complaining of being forced to
go outside in subfreezing weather.108 Georgia defines “insubordination” broadly
to include “cursing, demeaning, or acting in a sullen, uncooperative, or disrespectful
manner toward any employee.”109 Professor Donald Tibbs recounts a disciplinary
hearing where an inmate asking a guard why he received a disciplinary ticket that
amounted to “disruptive conduct.”110
In this case, the inmate received a conduct report for disruptive conduct
while he was at work in the kitchen. Upon receiving the ticket, he loudly
asked the guard, “man what about my warning? Don’t I receive a
warning?” The guard claimed that the inmate’s actions disrupted the
work environment with loud talking because the other inmates stopped
work to look in their direction. The guard also charged that speaking to
him loudly and referring to him as “man” amounted to disrespect
according to DOC 303.25.111
Ambiguous disciplinary rules, particularly those regulating an inmate’s
attitude, are especially susceptible to the influence by an individual prison guard’s
implicit racial preferences. Remember that three IAT studies, on trust, anger
perception, and perceptions of guilt, suggested that race may play a role in
interpersonal communications. In the prison context, a lack of trust could
implicate perceptions of whether an inmate is lying in a disciplinary hearing for the
cited violation. It could also implicate whether an inmate is cited for conduct that
may be difficult to objectively determine, such as “insolence” or “disrespect,”
particularly where there is ambiguous evidence. A less trustworthy person may be
more likely to be perceived as disrespectful of the rules of conduct by a
correctional officer. White and Black inmates may experience differential
treatment (being cited or disciplined) for “insolence,” even when acting identically,
since a prison guard may be more likely to perceive anger from a Black inmate
than a White inmate. Where violations rely at least in part on interpersonal
communications, the IAT studies would suggest that race plays a role.
One side effect of an ambiguous statute is that it provides broad discretion
for individual prison officers to “redefine prison rules as they see fit” since
officers lack guidance as to enforcement.112 In such situations, biases not under
our conscious control provide a lens through which to interpret inmate behavior.

107. Id. at 232 n.* (Ginsburg, J., concurring) (emphasis omitted) (quoting Mont. State Prison
Policy No. 15-001, Inmate Disciplinary Policy, Rule 009 (App.10)).
108. Smith v. Mosley, 532 F.3d 1270, 1272–74 (11th Cir. 2008).
109. GA. DEP’T OF CORR., ORIENTATION HANDBOOK FOR OFFENDERS 27, http://
www.dcor.state.ga.us/pdf/GDC_Inmate_Handbook.pdf [http://perma.cc/78RB-CQVM] (emphasis
added).
110. Tibbs, supra note 78, at 160–61.
111. Id. at 160.
112. Robertson, supra note 83, at 168.

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Enforcement then expands beyond the specific conduct at issue to include the
“attitude” of the defendant. Yet, social cognition studies demonstrate that we
perceive “attitudes” differently depending on our racial preferences.113 By
upholding ambiguous attitude disciplinary rules, courts facilitate the influence of
racial preferences in prison disciplinary proceedings.
This survey of IAT literature helps to explain the outcome of the 1980 Poole
and Regoli finding that race affects prison disciplinary decision-making in three
distinct ways. First, non-White inmates are more likely to be perceived as a threat,
regardless of the inmate’s actual behavior. Because they are more likely to be
perceived as a threat, non-White inmates may be cited both more often and for
more serious conduct than White inmates. Second, the types of punishments for
these citations may be more severe for non-White inmates than for White inmates.
Third, the impact of implicit bias may be particularly salient when dealing with
more ambiguous disciplinary provisions, such that race plays an even larger role in
determining whether a violation occurred. Despite these potential impacts, the
jurisprudence to date exclusively penalizes only explicit, and not implicit, bias.
II. FACILITATING THE INFLUENCE OF RACE
A. Requiring Intent for Racial Discrimination Claims in Prison
The consideration of race—whether it occurs outside or inside the prison
walls—is subject to strict scrutiny. In Johnson v. California, the Supreme Court held
that strict scrutiny should apply to prison officials’ use of race in determining
housing assignments for offenders.114 Strict scrutiny, the most searching level of
judicial review available, requires that the policy be “narrowly tailored measures
that further compelling governmental interests.”115 In so doing, the Court decided
not to apply the more lenient doctrine of judicial deference to prison
administrators under Turner v. Safley.116 And yet, even with a heightened standard
of review, implicit racial bias claims are rarely legally cognizable because they lack
the “intent” requirement established in Washington v. Davis for racial discrimination
claims.117
Washington v. Davis, an employment law case, fundamentally changed the
equal protection landscape by requiring an actual intent to racially discriminate to
qualify for strict scrutiny review by the courts.118 In cases where a law explicitly
conditions protection or benefits by race, the intent is clear and courts will apply

113. See generally Stanley et al., supra note 58.
114. Johnson v. California, 543 U.S. 499, 515 (2005).
115. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
116. Turner v. Safley, 482 U.S. 78, 89 (1987) (upholding restriction on inmate correspondence
but denying restriction on inmate marriage).
117. See Washington v. Davis, 426 U.S. 229, 237–38 (1976).
118. Id. at 237–38.

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strict scrutiny.119 But in cases where a law is facially neutral, such as the
disciplinary codes discussed above, a plaintiff must show evidence of
discriminatory purpose to avoid application of “rational basis review,” a much
more forgiving and lenient standard of judicial review.120
Despite considerable criticism, the Court continues to apply Washington v.
Davis to Fourteenth Amendment disparate impact cases.121 In practice, the Court
is requiring evidence of explicit racial bias, i.e. racial preferences that are under the
conscious control of the decision maker. Proving an explicit bias is incredibly
difficult absent a “smoking gun” statement indicating a desire to harm a person
because of his or her race. While technically possible to infer such an explicit
preference from surrounding circumstances, successful claims under the Equal
Protection Clause are rare.122 For cases concerning implicit bias, where the racial
preference is not under the conscious control of the decision maker, the burden of
proof to establish discriminatory intent is exponentially harder.
A court would likely require evidence of discriminatory purpose to challenge
prison disciplinary decisions as imposing a disparate impact on a racial group
under McCleskey v. Kemp.123 In McCleskey, the petitioner confronted the Court with
stark statistical evidence of the disparate imposition of the death penalty on Black
defendants convicted of killing White victims in Georgia. A defendant was 4.3
times more likely to receive the death penalty if the defendant was Black and the
victim was White.124 While acknowledging the validity of the statistical study, the
Court nevertheless refused to apply strict scrutiny because McCleskey had failed to

119. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007)
(holding racial classification for purposes of student school assignment violated the Equal Protection
Clause under strict scrutiny).
120. Discriminatory purpose includes a showing that the law was enacted “‘because of,’ not
merely ‘in spite of,’ its adverse effects upon an identifiable group.” Pers. Adm’r of Mass. v. Feeney,
442 U.S. 256, 279 (1979).
121. See, e.g., Edward Patrick Boyle, Note, It’s Not Easy Bein’ Green: The Psychology of Racism,
Environmental Discrimination, and the Argument for Modernizing Equal Protection Analysis, 46 VAND. L. REV.
937, 963–67 (1993) (arguing that the discriminatory purpose requirement in environmental racism
cases fails to account for different types of racism); Lawrence III, supra note 11, at 323–24 (arguing
that the “cultural meaning” of an act better predicts underlying racism than the discriminatory intent
requirement). It would appear that the Supreme Court is more approving of “disparate impact” cases
based on statutory rights, such as the Fair Housing Act, than for claims arising solely under the
Fourteenth Amendment. See, e.g., Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Cmties. Project,
Inc., 135 S. Ct. 2507 (2015) (holding that the language of the Fair Housing Act indicates a concern for
the consequences of an act as compared to the intent of the actor).
122. See, e.g., City of Cuyahoga Falls, Ohio v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194
(2003) (holding that while intent may be inferred from the circumstances, evidence was nevertheless
insufficient to attribute a discriminatory purpose to state actors in allowing a referendum to take
place); see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267–68 (1977)
(listing factors to be considered for inferring discriminatory intent in disparate outcome cases
including the historical background, the legislative history, the specific sequence of events leading up
to the decision, and any procedural or substantive departures from normal practice).
123. McCleskey v. Kemp, 481 U.S. 279 (1987).
124. Id. at 287.

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demonstrate discriminatory purpose in his specific case.125 At a superficial level,
the similarities would be striking. Like McCleskey, prisoners would present
statistical evidence on racial differences in disciplinary decisions. Like McCleskey,
prisoners would likely lack specific evidence of explicit bias in their particular
disciplinary cases.
Nevertheless, there are important distinctions between the criminal appeal by
McCleskey and a prisoner’s civil claim of implicit racial bias in prison decisionmaking. First, the Court justified the outcome in McCleskey by arguing that the
state lacked a real opportunity to explain the alleged racial disparity, in part
because the convicting jury members could not be called to testify.126 While
disciplinary processes may differ from facility to facility, in most cases, disciplinary
hearings do not provide for jury decision-making.127 Instead, much like the Title
VII cases where disparate impact evidence is allowed,128 prison disciplinary
hearings are conducted by a single officer. Like an employer, that officer is
available to rebut a prima facie case of alleged racial discrimination.
Second, the Court hinted that the decision makers in McCleskey’s case were
simply too varied to attribute racial bias from any one actor or to conclude that
the particular actor’s bias controlled the sentencing decision.129 Prison disciplinary
cases could be distinguished on the basis that the prison disciplinary system is
unitary and lacks the variation implicit in hundreds of juries. But such subtle
distinctions are unlikely to receive judicial approval given the unwavering
adherence to Washington v. Davis in equal protection cases since 1976.
B. Undermining the Intent Requirement in Prisons
In Johnson v. California, Garrison Johnson, an African American who had been
incarcerated since 1987, challenged an unwritten policy of temporary racial
classification in California state prisons as a violation of the Equal Protection
Clause of the Fourteenth Amendment.130 The policy, acknowledged by the
California Department of Corrections, assigned new and transfer inmates to
temporary quarters based primarily on their race.131 The Department of
Corrections argued that the racial classification policy was necessary to protect
new and transfer inmates in two-person cells from racially motivated gang
violence.132
The Court specifically justified applying strict scrutiny under the Equal
Protection Clause, instead of the more lenient Turner standard, to racial
125. Id. at 293–94.
126. Id. at 296.
127. See, e.g., Calavita & Janness, supra note 17, at 33–37.
128. See, e.g., McCleskey, 481 U.S. at 226 (approvingly citing Texas Dep’t. of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254 (1981)).
129. Id. at 295.
130. Johnson v. California, 543 U.S. 499, 503 (2005).
131. Id. at 502.
132. Brief for Respondents at 30, Johnson, 543 U.S. 499 (No. 03-636).

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discrimination claims within prisons.133 Some of the arguments for strict scrutiny
apply regardless of whether a person is incarcerated or not. For example, in her
majority opinion, Justice O’Connor first relies on precedent, namely Adarand,134
City of Richmond,135 and more recently, Grutter,136 for the proposition that racial
classifications imposed by the government are subject to strict scrutiny because
only a searching judicial review will “smoke out” invidious uses of racial
classifications.137 Thus, the purpose of employing strict scrutiny is because
improper racial motivations may be hidden or not easily discernable. But
O’Connor’s majority opinion also justifies the use of strict scrutiny specifically
because of the potential impact of race-based decision-making within the prison
walls.
Applying a more stringent standard to racial discrimination claims in prison,
according to the majority opinion, does not impede a prison’s responsibility to
maintain order and security. The more lenient Turner standard only governs those
rights that must be “compromised for the sake of proper prison
administration.”138 Thus, the right to freedom of association, for example, may be
subject to a lower level of review under Turner because full recognition of those
rights would harm orderly operation of the prison.139 But Justice O’Connor
reasoned that individualized consideration of a prisoner’s criminal and disciplinary
history is more conducive to the goals of order and security than generalized racebased decision-making.
In fact, consideration of race can enhance threats to the security and order of
a prison. The Court noted that prohibiting racial discrimination could actually
assist in the maintenance of order and security by “bolster[ing] the legitimacy of
the entire criminal justice system.”140 In the prison disciplinary context, order and
security depend in part on the consent of the governed.141 If prisoners believe that
disciplinary violations improperly take the race of the inmate into account,
prisoners are less likely to respect both the rules themselves and the prison guards
who enforce them.142 But to the extent that the rules and enforcers are perceived
to be race-neutral, inmates are more likely to cooperate.143

133.
134.
135.
opinion).
136.
137.
138.
139.
140.
141.
4 (2010).
142.
143.

Johnson, 543 U.S. at 510.
Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (O’Connor, J., plurality
Grutter v. Bollinger, 539 U.S. 306 (2003).
Johnson, 543 U.S. at 506.
Id. at 510.
See Overton v. Bazzetta, 539 U.S. 126, 131 (2003).
Johnson, 543 U.S. at 510–11.
Jonathan Jackson et al., Legitimacy and Procedural Justice in Prisons, 191 PRISON SERVICE J. 4,
See id. at 5.
Id. at 10.

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Justice O’Connor also noted that the use of race in prison decision-making
may actually enhance the potential for racial hostility.144 To the extent that inmates
are aware of the influence of race in the prison disciplinary process, inmates may
attempt to use that advantage along racial lines to minimize being caught violating
the rules or receive a more lenient punishment. Minority inmates may resent not
only the prison guards for their implicit biases, but also White inmates as the
beneficiaries of the bias.
Last, the majority opinion relied on the unique situation of custodial
incarceration where the government’s power is at its “apex.”145 In the context of
prison disciplinary policies, the government’s power is even further amplified
beyond the power inherent in maintaining twenty-four hour custody and control
of the incarcerated. For disciplinary violations, the prison administration assumes
all of the traditionally separate criminal justice roles of police, prosecutor, judge,
jury, and appellate court. These roles are separate within the criminal justice
system in part to facilitate nonarbitrary decisions by dividing responsibilities
among several actors. The combination of these responsibilities within one
decision maker presents the opportunity for decisions that are not impartial. This
danger is amplified by the potential for arbitrary decisions, given the lack of
standard checks and balances in the disciplinary process.146
The underlying rationales in the Johnson opinion would appear to support an
argument that because of the unique circumstances of incarceration, race-based
decision-making within prisons is different. The three prison-specific rationales
(the importance of individualized consideration, the danger of racial hostility, and
the breadth and depth of the government’s power) are applicable in situations of
implicit as well as explicit racial bias. An implicit racial preference undermines
individualized consideration just as much as an explicit bias, where race becomes a
proxy for certain attitudes and assumed behaviors. Causation, i.e. whether the
preference improperly influenced the outcome, is unclear. Whether racial bias
caused the outcome may matter less than the perception of whether race matters and
thus the potential for racial hostility. And it could be argued that implicit racial
bias is more pernicious in carceral situations than explicit racial bias because of the
lack of traditional checks and balances. Use of explicit racial preferences is widely
unacceptable and thus improper reliance on explicit racial biases is more likely to
be quashed, even in systems without adequate checks and balances. And yet,
144. Johnson, 543 U.S. at 507.
145. Id. at 511.
146. The traditional separation of powers into three branches is simply not present in the
correctional context. Outside of the prison walls, the legislature defines the crimes, the executive
prosecutes the crimes, and the judiciary assesses the culpability of the accused. Within the prison
walls, the definition of violations, the prosecution, and the assessment are all performed by the prison
administration itself. See, e.g., Tibbs, supra note 78, at 147–50 (summarizing the disciplinary process in
Wisconsin); see also James E. Robertson, Impartiality and Prison Disciplinary Tribunals, 17 NEW ENG. J.
ON CRIM. & CIV. CONFINEMENT 301, 334 (1991) (recommending “outsider” adjudication of major
disciplinary charges because of a lack of impartiality by prison officers).

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jurisprudence to date dictates that this higher level of scrutiny is only available for
claims of intentional, not implicit, racial discrimination.
As implicit bias research has progressed, there is overwhelming evidence that
implicit racial preferences affect everyday decision-making. Extrapolating the
results of these tests to the prison disciplinary context indicates that implicit biases
have the potential to influence prison disciplinary decisions. And even though the
Equal Protection Clause prohibits the inappropriate use of race, the influence of
implicit bias—by definition—eludes judicial notice. By requiring discriminatory
purpose in all cases of unequal application of facially neutral laws, courts may
facilitate the undercover use of race in prison disciplinary decision-making.
III. VALIDATING THE INFLUENCE OF RACE IN PRISONS
Thus far, the Article has focused on the potential influence of race on prison
disciplinary decisions and how courts may facilitate that influence by failing to give
doctrinal credence to implicit bias research. But courts potentially do more than
passively facilitate—through extended deference to prison disciplinary rules and
decisions, courts may effectively validate the improper influence of race on prison
disciplinary decisions.
Deference to prison administrative decisions is usually justified on two basic
grounds. First, the Supreme Court has noted that, “[w]e must accord substantial
deference to the professional judgment of prison administrators, who bear a
significant responsibility for defining the legitimate goals of a corrections system
and for determining the most appropriate means to accomplish them.”147
Deference, then, is appropriate because courts lack the special knowledge to
administer correctional institutions.148 Second, deference is preferred because
prison administrators need flexibility to fulfill their primary obligation of
maintaining order and security.149 This flexibility is essential because of the
“volatile” nature of the prison environment.150
Inmates have contested their disciplinary violations, in part, by arguing that
the disciplinary rule is unconstitutionally vague in both facial and as applied
147. Overton v. Bazzetta, 539 U.S. 126, 132 (2003); Lewis v. Casey, 518 U.S. 343, 361, 391
(1995); Turner v. Safley, 482 U.S. 78, 89, 91 (1987) (upholding restriction on inmate correspondence
but denying restriction on inmate marriage); Block v. Rutherford, 468 U.S. 576, 588 (1984); Bell v.
Wolfish, 441 U.S. 520, 546, 562 (1979); Procunier v. Martinez, 416 U.S. 396, 404 (1974); see also Pell v.
Procunier, 417 U.S. 817, 826–27 (1974).
148. Beard v. Banks, 548 U.S. 521, 525 (2006). Even if the Court’s claim that it lacks expertise
in prison management is true in general, I would argue that courts to do have relevant expertise as to
the specific topic of prison disciplinary hearings. Prison disciplinary hearings, similar to standard
judicial proceedings, allow for evaluations of credibility, the presentation of evidence, witness
testimony, and determinations of responsibility. See, e.g., Tibbs, supra note 78, at 148–58 (describing
the disciplinary process for minor and major violations).
149. See Thornburgh v. Abbott, 490 U.S. 401, 408 (1989).
150. Sandin v. Conner, 515 U.S. 472, 482, 484 (1995) (holding that an inmate demonstrates a
protected liberty interest when the prison decision enacts an “atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life”).

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challenges. Drawing from the First Amendment context, prison disciplinary
regulations are considered vague when they fail to give a “person of ordinary
intelligence a reasonable opportunity to know what is prohibited.”151 Due process
requires that disciplinary rules be sufficiently clear to give notice to prisoners of
the scope of prohibited conduct.152 Except for a few cases from the 1980s, courts
have rarely held disciplinary rules to be vague on their face regarding attitudinal
disciplinary rules.153 Courts have been more willing to find disciplinary rules as
unconstitutionally vague as applied,154 although by and large courts have upheld
ambiguous disciplinary rules. The Supreme Court has specifically noted the
relevance of deference to correctional officials, even while declining to address a
prisoner’s due process claim.155
In Murphy v. Shaw, the Ninth Circuit upheld a prison regulation prohibiting
“insolence” even while noting that “clearer language could be imagined.”156 The
Supreme Court reversed the Ninth Circuit on other grounds (whether Mr.
Murphy’s speech was protected under the First Amendment), and Justice
Ginsburg concurred to note that the Court did not address Mr. Murphy’s due
process challenge.157 Nevertheless, the case is significant for understanding how
malleable prison disciplinary rules can be. As noted previously, “insolence”
constitutes “words, actions or other behavior which is intended to harass or cause
alarm in an employee” and can include “cursing; abusive language, writing or
gestures directed to an employee.”158 Mr. Murphy wrote a letter offering his legal
assistance to a prisoner criminally charged with assaulting a prison guard.159 In
addition, Mr. Murphy shared his knowledge that the guard in question had
previously engaged in sexual assaults and retaliation against other inmates at that

151. See Chatin v. Coombe, 186 F.3d 82, 89 (2d Cir. 1999) (quoting U.S. v. Strauss, 999 F.2d
692, 697 (2d Cir. 1993)). Chatin held that a disciplinary rule barring unauthorized religious services was
vague as applied to a prisoner’s individual silent prayer. Id. at 91; see also Cassels v. Stalder, 342 F.
Supp. 2d 555, 564–67 (M.D. La. 2004) (holding that rule prohibiting “spreading rumors” was vague
when prison officials testified that a rumor could be either true or false and was designated as such
pursuant to prison administrative discretion).
152. Chatin, 186 F.3d at 87; Noren v. Straw, 578 F. Supp. 1, 6 (D. Mont. 1982).
153. See Jenkins v. Werger, 564 F. Supp. 806, 807–08 (D. Wyo. 1983) (holding statute barring
“unruly or disorderly” conduct was void for vagueness); Noren, 578 F. Supp. at 6 (finding rule
requiring inmates to act in an “orderly decent manner with respect for the rights of the other
inmates” was vague).
154. See Adams v. Gunnell, 729 F.2d 362, 369 (5th Cir. 1984) (noting no need to decide if
prison rule prohibiting “disruptive conduct” was facially unconstitutional but finding rule was
unconstitutional as applied since no prior notice that signing a petition would be considered
disruptive).
155. Shaw v. Murphy, 532 U.S. 223, 229 (2001).
156. Murphy v. Shaw, 195 F. 3d 1121, 1129 (9th Cir. 2000), rev’d on other grounds sub nom. Shaw
v. Murphy, 532 U.S. 223 (2001). The Ninth Circuit only addressed whether the rule was facially vague
and not as applied to Mr. Murphy’s circumstances. Id.
157. Shaw, 532 U.S. at 232.
158. Id. at 232 n.* (Ginsburg, J., concurring) (quoting Mont. State Prison Policy No. 15-001,
Inmate Disciplinary Policy, Rule 009 (App.10)).
159. Id. at 225–26.

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institution.160 According to the prison, Mr. Murphy’s comments were deemed
“insolent,” even though his comments were directed to another inmate and not
the officer in question.161 Moreover, the hearing officer upheld the disciplinary
charge because the “statement indicates unprofessional actions which tend to
intimidate the employee.”162 But the record also lacked evidence that the
statements made to another inmate were intended to “harass or cause alarm in”
the prison guard.163 In sum, statements to another inmate regarding arguably
criminal conduct by a prison guard, even if not directly conveyed to the prison
guard, may constitute insolence.
Though the Ninth Circuit did not address his “as applied” due process
challenge, the court hinted that deference was appropriate for his “facial”
challenge. The disciplinary regulation is of the “sort that every prison enforces in
order to maintain order.”164 Implied in this justification is the same institutional
competence idea underlying judicial deference to prison officials. Prisons, rather
than courts, are best positioned to determine the regulations necessary to preserve
order. And while most observers may agree with this proposition as a general
matter, the Supreme Court also recognized that there must be limits to prison
decision-making because “prisoners do not shed all constitutional rights at the
prison gate.”165
This general standard of deference is also a feature of judicial review of
prison disciplinary decisions. An inmate may challenge the validity of her
disciplinary conviction through seeking a writ of habeas corpus.166 Courts will
review claims that a prison disciplinary conviction violated due process under the
“some evidence” standard.167 The “some evidence” standard is satisfied when
160. Id. at 226.
161. Id.
162. Brief of Amici Curiae Legal Aid Society of N.Y., et al. in Support of Respondent at 21,
Shaw v. Murphy, 532 U.S. 223 (2001) (No. 99-1613), 2000 WL 1845914.
163. Id. at 29.
164. Murphy v. Shaw, 195 F. 3d 1121, 1128–29 (9th Cir. 2000), rev’d on other grounds sub nom.
Shaw v. Murphy, 532 U.S. 223.
165. Sandin v. Conner, 515 U.S. 472, 485 (1995). The Sandin Court held that placement in
administrative segregation must be an “atypical and significant hardship” to implicate a liberty interest
protected by the Due Process Clause of the Fourteenth Amendment. Id. at 500.
166. Edwards v. Balisok, 520 U.S. 641, 648–49 (1997) (holding that a 42 U.S.C. §1983 suit for
damages for biased disciplinary hearing under due process necessarily implied the invalidity of his
disciplinary conviction and therefore must be brought as a habeas corpus action under 28 U.S.C. §
2254); see also Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (holding that a damages suit under 42
U.S.C. § 1983 is prohibited where the claim challenges the substance of the disciplinary conviction).
But see Edwards, 520 U.S. at 649–50 (Ginsburg, J., concurring) (agreeing that bias claim would
undermine validity of disciplinary procedure, but that the inmate’s claim that the disciplinary hearing
violated due process by failing to provide written statement of reasons and evidence would not
undermine disciplinary conviction and therefore is cognizable as a damages action under 42 U.S.C. §
1983).
167. Note that federal appellate courts are currently divided on whether an inmate must claim
a protected liberty interest at stake in order to claim a due process violation. The Ninth Circuit has
held that minimal procedural safeguards apply even when the prisoner lacks a demonstrated liberty

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“there is any evidence in the record that could support the conclusion reached by
the disciplinary board.”168 The “some evidence” rule is even less than the
“preponderance of the evidence” standard and essentially only protects against
arbitrary decisions.169 Nor must the reviewing court fully review the record.
Determining whether there is “some evidence” “does not require examination of
the entire record, independent assessment of the credibility of witnesses, or
weighing of the evidence.”170
Inmates can be unruly and difficult. For many, it is a challenge to cede
complete control over their lives to the prison administration. Some inmates may
in fact rebel against this control by actively challenging prison authority or by
manipulating events to their advantage. But the point of this discussion is not
whether the inmates were in fact insolent or insubordinate, however those terms
are defined. Rather the point is to recognize that courts almost never reach these
questions, thus giving legal imprimatur to disciplinary decisions that may have
been influenced by implicit racial preferences.
Courts that have reviewed disciplinary conviction challenges almost
universally conclude that the “some evidence” standard is met in reviewing
disciplinary convictions for attitude offenses. The Seventh Circuit found the
standard satisfied in Portee v. Vannatta, noting that, “the conduct report alone
provides ‘some evidence’ that he was guilty of insolence.”171 In Cardenas v. Adler, a
California federal district court found “some evidence” to support the disciplinary
charge for insolence even though “the evidence [could not] be characterized as
overwhelming.”172 In that case, the evidence consisted solely of a prison staff
member’s testimony that the inmate “yelled” and “threw” a bottle of cream.173 But
we also know that depending on the prison guard’s implicit biases, whether
someone “yelled” or “threw” something can be a subjective determination, much

interest. See Burnsworth v. Gunderson, 179 F.3d 771, 774–75 (9th Cir. 1999) (finding procedural due
process violation when “no shred of evidence of the inmate’s guilt is presented” at disciplinary
hearing, even when a protected liberty interest is not at stake). But see Lee v. Karriker, No. 6:o8cv328,
2009 WL 2590093, at *4, *8–9 (E.D. Tex. Aug. 17, 2009), aff’d, 383 F. App’x 491 (5th Cir. 2010)
(noting that Fifth Circuit does require a protected liberty interest to claim due process protection,
even where the claim is that no evidence was presented to support the disciplinary conviction).
168. Walpole v. Hill, 472 U.S. 445, 455–56 (1985) (emphasis added) (upholding right to due
process protection for prison disciplinary proceeding that affected inmate’s good time credits, but
finding sufficient evidence to satisfy the “some evidence” standard). But see Swarthout v. Cooke, 131
S. Ct. 859, 862 (2011) (holding that “some evidence” standard did not apply to state-created liberty
interest in parole decision).
169. McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999).
170. Walpole, 472 U.S. at 455.
171. Portee v. Vannatta, Nos. 04-1080, 04-1082, 2004 WL 1662289, at *2 (7th Cir. July 20,
2004).
172. Cardenas v. Adler, No. 1:09-cv-00831, 2010 WL 2180378, at *5 (E.D. Cal. May 28,
2010).
173. Id. at *4.

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like whether a person is holding a weapon or a tool or whether a sentence is
considered threatening based on the speaker.174
CONCLUSION
This Article has endeavored to discover the potential linkages between
implicit biases and their potential influence on prison disciplinary decisions. The
cognitive studies on implicit preferences are clear that preferences outside of a
person’s conscious control can influence perceptions and behavior. But the failure
to recognize implicit racial preferences as indicative of racial discrimination
facilitates the continuing influence of race in prison decision-making by allowing
the role of race to escape judicial review. Ambiguous attitudinal disciplinary
charges may then enable the use of these implicit biases by prison officials,
particularly where prison officials have broad enforcement discretion. By
upholding these “catchall” disciplinary rules against vagueness challenges, courts
may allow the improper influence of implicit racial preferences. The influence of
these preferences may then be validated by courts reviewing prison disciplinary
decisions under the deferential “some evidence” standard.
These linkages are possible, but certainly not proven in this Article. Data on
the use of attitudinal charges by prison disciplinary officials are either lacking or
outdated. Social cognition studies to date have not examined the role of implicit
racial biases specifically in the prison disciplinary context. It may well be that a
prisoner’s status as an “inmate” takes precedence over perceptions of a prisoner’s
race. Hence, it would be premature to offer suggestions to decrease the potential
influence of unconscious racial biases on prison disciplinary proceedings. But
perhaps, by sketching out the potential interactions, we can strategically advocate
for more responsive legal doctrines from the courts and more detailed information
from prison administrators. Elsewhere, I have argued for enhanced data collection
from prisons under a federal incentive regime, similar to the data collected for
schools.175 In that piece, I argued specifically for the collection of data regarding
the disciplinary and grievance process in prisons.176 Such data is critical for further
exploration of the potential linkages identified in this Article.

174.
175.
176.

Payne, supra note 62; Poole & Regoli, supra note 12.
Armstrong, supra note 2, at 469–75.
Id. at 472–73.