Concerns of Implicit Bias against Asian Americans
The U.S. Department of Justice (DOJ) announced on June 27, 2016 [1] that it will begin training its 23,000 law enforcement agents and 5,800 attorneys to recognize and address their implicit bias at three administrative levels – line personnel, supervisors and managers, and executives.
The broad coverage of DOJ’s training is unusual, but important because implicit bias can affect interactions and decisions to threaten fairness of the justice system. Its negative effects must therefore be reduced and ideally eradicated.
DOJ has not yet made the training content publicly available. Media reports [e.g., 2] suggest that recent deaths of African American men and their interactions with police officers are the primary motivation, as exemplified by how the Baltimore Police Department has violated the rights of the people its officers are sworn to protect [e.g., 3].
However, prejudice impacts many in our society when negative attitudes and stereotypes are still being cultivated for Blacks as street criminals, Hispanics as undocumented immigrants, Muslims as terrorists, and Asians as spies. Bias and discrimination are also taking on new forms as they turn implicit and digital.
The DOJ training is timely and necessary. Lack of transparency and accountability has eroded public trust and confidence in the fairness of the U.S. justice system. As a first step to ensure a fair justice system for all, it is imperative for DOJ to realize and include the Asian American perspective and experience in its training to address their mounting concerns about federal investigations and prosecutions.
You can show your support for the ongoing Asian American efforts by signing the #ScientistsNotSpies petition at http://scientistsnotspies.org.
“Downloading/Emailing While Asian”
Asian Americans have a long, unique history of facing explicit bias in the U.S.
First the Chinese and then other Asians were forbidden by law from immigration to the U.S. for more than 60 years under the Chinese Exclusion Act of 1882. Almost 120,000 Japanese Americans were rounded up and interned by order of the U.S. President for fear of national security during the Second World War.
The fortunes of Asian Americans tend to rise and fall with the geopolitics between the U.S. and Asian nations. When Japan was on the peaceful rise in the 1970s and 1980s, anti-Japanese sentiments peaked again due to its perceived threat to the American economy. Vincent Chin [4] was murdered by an auto worker and his son in Detroit because he was mistaken to be of Japanese origin. In 2000, the incarceration and prosecution of Dr. Wen Ho Lee, a Chinese American nuclear scientist who was accused of spying for China, resulted in an unprecedented apology from the presiding judge [5].
While explicit bias has not fully subsided, implicit bias, referring to the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner, has emerged [6]. It is the subtle associations that individuals make between groups of people and stereotypes about those groups, perhaps best illustrated by the mental images associated with “driving while black or brown,” “flying while Muslim,” or “downloading/emailing while Asian.”
Implicit bias has been growing rapidly as a social science, especially in criminal justice. For example, Kang [7] published a primer for the National Center for State Courts in 2009, which proceeded to develop strategies to reduce the influence of implicit bias in 2012 [8]. Fridell [9, 10] has led the development and implementation of the Fair and Impartial Policing program by state and local police since 2010, and it became the foundation for DOJ’s announced training.
The Kirwan Institute for the Study of Race and Ethnicity at The Ohio State University has provided an annual overview of the science of implicit bias since 2013 [11]. Project Implicit at Harvard University provides an online implicit-association test [12] for individuals to measure their implicit attitudes and stereotypes.
Implicit bias and explicit bias are considered two related but separate concepts [e.g., 13], characterized mainly by the different state of mental consciousness. However, their discriminatory consequences can be similarly disastrous.
A persistent stereotypical image of an Asian American is a strange, untrustworthy foreigner, punctuated by their contemporary education and expertise in sensitive positions and study of science, technology, engineering and mathematics.
DOJ’s Lack of Transparency and Accountability
“60 Minutes” reported in May 2016 [14] that the government’s dragnet against economic espionage by China “is ensnaring a growing number of Americans who aren’t spies at all.” It featured the wrongful prosecutions of Professor Xiaoxing Xi and hydrologist Sherry Chen, both are naturalized U.S. citizens born in China, to be collateral damage.
Both Xi and Chen were accused of economic espionage based on biased information (unreliable informant and out-of-context intercepted emails), but not charged under the Economic Espionage Act. Both cases were dropped before trial, but not before devastating damages were already done to their lives and families. The U.S. Department of Commerce further terminated Chen’s employment from the National Weather Service for the same justifications DOJ used in its failed criminal prosecution.
Since 2012, economic espionage charges against at least three other Chinese American scientists in two separate cases – Guoqing Cao, Shuyu Li, and Xiaorong Wang – were dropped after being indicted with sensational publicity alleging their disloyalty to the U.S., including being called “traitor” by the prosecutor.
Numerous calls have been made in the past two years for DOJ and its Inspector General (IG) to conduct independent investigations of the apparent ethnic profiling and provide an explanation and apology to Xi and Chen, including those by Congressional members [e.g., 15, 16], community organizations [e.g., 17, 18], major media [e.g., 19], public petitions [e.g., 20, 21], and the U.S. Commission on Civil Rights [22, 23].
In response, the DOJ IG [24] indicated willingness to investigate, but cited current lack of jurisdiction to do so. DOJ has so far refused [e.g., 25] to conduct the requested independent investigation because “assurances” were given by its investigators and prosecutors who “make charging decisions based on the law and facts presented in particular cases” according to established guidelines.
However, Smith and Levinson [25] pointed out that “prosecutors enjoy more unreviewable discretion than any other actor in the criminal justice system” and that implicit racial bias can operate in every phase of prosecutorial discretion: when making charging decisions, during pretrial strategy, and throughout trial strategy. They went on to provide comprehensive analysis on how implicit bias can occur at each component part in each of these three phases.
According to the Task Force on Race & the Criminal Justice System in 2012 [27], empirical evidence shows that “Whites are less likely to have charges filed against them, bail is recommended for Blacks more often than for Whites, and Blacks are more likely to receive higher rates of confinement and longer sentences.”
Implicit bias explains how race can possibly be a factor when it is prohibited by law. Furthermore, it can compound and reinforce itself from the lowest to the highest levels, as described by this detailed analysis of the Wen Ho Lee case [28].
That DOJ readily accepts simple assurances by its attorneys and adamantly refuses to conduct an independent investigation requested by a broad representation of the Asian American community contradicts directly the scientific evidence of implicit bias, its announced commitment to address implicit bias, and the fundamental need of transparency and accountability for governance.
Signs of Implicit Bias
Lan Lee and Yuefei Ge, both computer engineers, were indicted for economic espionage to benefit China in 2006. Upon questioning by the defense attorney Tom Nolan during trial, the FBI agent testified under oath [29]:
Nolan: Did you believe there was something illegal or wrong with a U.S. citizen negotiating or trying to get funding from the 863 Project as long as they do not use trade secrets?
FBI Agent: Yes.
Nolan: And on what do you base that opinion, sir?
FBI Agent: An abundance of public source information documenting that the 863 Program has financed ventures with nefarious illegal intent.
The 863 Program [30], also known as the National High-technology Research and Development Program in China, serves in a capacity similar to the government-funded National Science Foundation in the U.S. by offering research grants and inviting international collaboration. It took more than six years after the FBI started its investigation before Lee was acquitted by jury and Ge was dismissed.
The 863 Program was again implicated in Xi’s indictment.
Unproven beliefs create bias, particularly when they are used to train law enforcement personnel. If the 863 Program and other similar programs in China are proven instigators for international economic espionage, it would be more constructive for the government to publish a warning list similar to those for terrorist groups or illegal munitions for export such that U.S. persons are advised against contact or association with them. Conceivably, these implicit biases and digital profiling are already embedded in the automated algorithms of the massive U.S. surveillance programs in the Big Data era [31].
Media and communications also play a significant role in shaping the perceptions of race and ethnicity in the U.S. For example, excessive negative portrayals are known to foster the unconscious formation of implicit biases such as the fear of Black man for his criminality [e.g., 32, 33].
DOJ tends to be selective and overstate some results in its zeal to depict China as a villain in economic espionage. For example, its latest “fact sheet” [34] provides selective updates to 23 prosecutions charged under the Economic Espionage Act since 2010. Among these 23 cases, 19 (83%) were related to China. In comparison, it is almost double the actual rate for China at 43% (26 out of 61 EEA prosecutions) for the same period.
Previous “fact sheets” similarly overstate the guilty actors in China-related cases, but they also ignore all the wrongfully prosecuted, dismissals, and acquittals such as Xi, Chen, Cao, Li, Wang, Lee and Ge. This and other exaggerated portrayals create a demonizing image of Asians, particularly Chinese, as dominantly guilty international spies. This and other selective “facts” are aligned to support the DOJ marketing campaign against Chinese economic espionage, at the high risk of collateral damage to the innocent.
A full list of all 173 prosecutions charged under the Economic Espionage Act of 1996 has recently been compiled [35]. The free Web-based resource is available for interested organizations and individuals to conduct further research and analysis. For example, Kim [35] has produced preliminary indications on disparities in the determination of guilt and sentencing based on the racial or ethnic background of the defendants.
Federal Prosecutions Related to the Economic Espionage Act (1997 - Present)
The pattern of accusing individuals of economic espionage but not charging them under EEA (colored green above) began to appear around 2012. It allowed the government to conduct investigations in secret under the guise of national security but not subject to national security reviews at the prosecution stage.
Although DOJ did not admit wrongdoing, it announced a rule change [37] when the broadcast of the “60 Minutes” program was imminent. However, the change cannot assure a different outcome for Xi and Chen if their cases were to happen today, nor will it provide remedy to what has already occurred. It was too little too late.
Fair and Just System for All Americans
Racial profiling and judicial discrimination against any group of Americans are inherently inconsistent with our Constitution and shared moral values. Such transgressions against the Asian American community in particular need to be addressed now [38, 39].
While explicit bias in law enforcement has still not been totally eliminated, implicit bias and digital profiling are already emerging. The DOJ training on implicit bias is long overdue and should include the Asian American perspective and recent mistakes and fallacies. Public trust in our justice system requires transparency and accountability. Without both, true justice and freedom for all Americans is in jeopardy.
References
[1] U.S. Department of Justice (2016). Department of Justice Announces New Department-Wide Implicit Bias Training for Personnel. http://1.usa.gov/298LjJo.
[2] Edwards, Julia (2016). Justice Dept. mandates 'implicit bias' training for agents, lawyers. http://reut.rs/2aK8A2n.
[3] Domonoske, Camila (2016). 'Lock Up All The Black Hoodies': DOJ Report Details Abuses By Baltimore Police. National Public Radio. http://n.pr/2aNzs1x.
[4] Wikipedia (n.d.). Murder of Vincent Chin. http://bit.ly/2asSRBS.
[5] New York Times (2000). Statement by Judge in Los Alamos Case With Apology for Abuse of Power. http://nyti.ms/2aPcTJA.
[6] Kirwan Institute for the Study of Race and Ethnicity (n.d.). Understanding Implicit Bias. http://bit.ly/2aqRJ1N.
[7] Kang, Jerry (2009). Implicit Bias: A Primer for Courts. National Center for State Courts. http://bit.ly/2anlCo1.
[8] National Center for State Courts (2012). Strategies to Reduce the Influence of Implicit Bias. http://bit.ly/2bkNx60.
[9] Gove, Tracey G. (2011). Implicit Bias and Law Enforcement. The Police Chief. http://bit.ly/2aXWUui.
[10] Fridell, Lorie and Brown, Sandra (2015). Fair and Impartial Policing: A Science-Based Approach. The Police Chief. http://bit.ly/2aJZqRy.
[11] Kirwan Institute for the Study of Race and Ethnicity (n.d.). Implicit Bias Review. The Ohio State University. http://bit.ly/2b7WP4m.
[12] Project Implicit (n.d.). Implicit-Association Test. Harvard University. http://bit.ly/2aTGW47.
[13] Fridell, Lorie (2013). This Is Not Your Grandparents’ Prejudice: The Implications of the Modern Science of Bias for Police Training. Translational Criminology. George Mason University. http://bit.ly/2aYHdUQ.
[14] 60 Minutes (2016). Collateral Damage. Columbia Broadcasting System. http://cbsn.ws/1Nvsii1.
[15] Congressional Asian Pacific American Caucus (2015). CAPAC Joins Wrongly Accused Asian American Scientists to Call for Accountability from DOJ and an End to Profiling. http://1.usa.gov/1MAgyEs.
[16] Congressional Asian Pacific American Caucus (2016). CAPAC Members Demand Independent Investigation Into Cases Targeting Asian Americans. http://bit.ly/2aOvPq2.
[17] Committee of 100 (2015). Joint Community Letter to Attorney General in support of Congressional Inquiry on Profiling. http://bit.ly/1OMrRyt.
[18] National Council of Asian Pacific Americans (2016). Coalition Calls on Inspector General to Investigate Possible Profiling of Asian American Scientists. http://bit.ly/28OvCHc.
[19] New York Times Editorial Board (2015). The Rush to Judgment. http://nyti.ms/1F2pOU4.
[20] Online Petition (2016). We Want An Independent Investigation. Concerned Scientists, Engineers and Professors. http://chn.ge/1mQuqVz.
[21] Online Petition (2016). Stop The Reckless Prosecutions. #ScientistsNotSpies. http://www.scientistsnotspies.org/.
[22] U.S. Commission on Civil Rights (2015). Updated: U.S. Commission on Civil Rights Requests Department of Justice Investigation Into Recent Questionable Prosecution of Chinese American Scientists. http://prn.to/1ObYx40.
[23] U.S. Commission on Civil Rights (2016). Calling DOJ Inspector General to Conduct Independent Investigation. http://bit.ly/29QhcSf.
[24] Office of Inspector General (2016). Letters to the U.S. Commission on Civil Rights and 81 Private Organizations Concerning Espionage Investigations and Prosecutions of Asian American and Pacific Islander Scientists. U.S. Department of Justice. http://bit.ly/2buNWlQ.
[25] U.S. Department of Justice (2015). Reply to Congressman Ted Lieu. http://bit.ly/2aQtOLM.
[26] Smith, Robert J. and Levinson, Justin D. (2012). The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion. 35 SEATTLE U. L. REV. 795. http://bit.ly/2aGzs3V.
[27] Task Force on Race & the Criminal Justice System (2012). Preliminary Report on Race and Washington’s Criminal Justice System. 35 SEATTLE U. L. REV. 623, 647. http://bit.ly/2aRF4pH.
[28] Purdy, Matthew (2001). The Making of a Suspect: The Case of Wen Ho Lee. New York Times. http://nyti.ms/2aEdtav.
[29] U.S. Court Reporter (2009). United States vs Lan Lee and Yuefei Ge. 06-cr-00424. http://bit.ly/2aF7FDm.
[30] Wikipedia (n.d.). 863 Program. http://bit.ly/2aMNQYn.
[31] Wu, Jeremy S. (2016). The Dark Side of Big Data and Predictive Analytics? http://bit.ly/1XMUWgs.
[32] Dixon, Travis L. (2008). Network News and Racial Beliefs: Exploring the Connection Between National Television News Exposure and Stereotypical Perceptions of African Americans. Journal of Communication. 58, 321-337. http://bit.ly/2b3U1ZN.
[33] Perception.org (2014). Transforming Perception: Black Men and Boys - Executive Summary. http://bit.ly/2aHcD2v.
[34] U.S. Department of Justice (2016). Summary of Major U.S. Export Enforcement, Economic Espionage, Trade Secret and Embargo-Related Criminal Cases. http://bit.ly/2a6jfpv.
[35] Wu, Jeremy S. (2016). Full List of Federal Prosecutions Related to the Economic Espionage Act of 1996. http://bit.ly/FedCases.
[36] Kim, Andrew (2016). Personal Communications. University of Concordia School of Law.
[37] Apuzzo, Matt (2016). After Missteps, U.S. Tightens Rules for Espionage Cases. New York Times. http://nyti.ms/1QGLqUD.
[38] Hua, Vanessa (2016). Downloading while Asian: Chinese American scientists under fire. San Francisco Chronicle. http://bit.ly/2aoMRyJ.
[39] Asian American Press (2016). ‘Scientists Not Spies’ campaign launches California tour. http://bit.ly/2brkUHJ.