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Activation on Action,” Journal of Personality and Social Psychology 71 (1996): 230; Gilliam and Iyengar, “Prime Suspects”; Jennifer L. Eberhardt et al., “Looking Deathworthy,” Psychological Science 17, no. 5 (2006): 383-86 (“[J]urors are influenced not simply by the knowledge that the defendant is Black, but also by the extent to which the defendant appears to be stereotypically Black. In fact for the Blacks with [the most stereotypical faces], the chance of receiving a death sentence more than doubled”); Jennifer L. Eberhardt et al., “Seeing Black: Race, Crime, and Visual Processing,” Journal of Personality and Social Pscychology 87, no. 6 (2004): 876-93 (not only were black faces considered more criminal by law enforcement, but the more stereotypical black faces were considered to be the most criminal of all); and Irene V. Blair, “The Influence of Afrocentric Facial Features in Criminal Sentencing,” Psychological Science 15, no. 10 (2004): 674-79 (finding that inmates with more Afrocentric features received harsher sentences than individuals with less Afrocentric features).

44 See Kathryn Russell, The Color of Crime (New York: New York University Press, 1988), coining the term criminalblackman.

45 The notion that the Supreme Court must apply a higher standard of review and show special concern for the treatment of “discrete and insular minorities”—who may not fare well through the majoritarian political process—was first recognized by the Court in the famous footnote 4 of United States v. Caroline Products Co., 301 U.S. 144, n. 4 (1938).

46 Whren v. United States, 517 U.S. 806 (1996).

47 McCleskey v. Kemp, 481 U.S. 279, 327 (1989), Brennan, J., dissenting.

48 Ibid., 321.

49 Ibid., 296. Ironically, the Court expressed concern that these rules would make it difficult for prosecutors to disprove racial bias. Apparently, the Court was unconcerned that defendants, due to its ruling in the case, would not be able to prove racial bias because of the same rules.

50 Ibid., 314-16.

51 Ibid., 339.

52 United States v. Clary, 846 F.Supp. 768, 796-97 (E.D.Mo. 1994).

53 Doris Marie Provine, Unequal Under Law: Race in the War on Drugs (University of Chicago Press, 2007), 26.

54 Davis, Arbitrary Justice, 5.

55 Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).

56 See, e.g., Sandra Graham and Brian Lowery, “Priming Unconscious Racial Stereotypes About Adolescent Offenders,” Law and Human Behavior 28, no. 5 (2004): 483-504.

57 Christopher Schmitt, “Plea Bargaining Favors Whites, as Blacks, Hispanics Pay Price,” San Jose Mercury News, Dec. 8, 1991.

58 See, e.g., Carl E. Pope and William Feyerherm, “Minority Status and Juvenile Justice Processing: An Assessment of the Research Literature,” Criminal Justice Abstracts 22 (1990): 527-42; Carl E. Pope, Rick Lovell, and Heidi M. Hsia, U.S. Department of Justice, Disproportionate Minority Confinement: A Review of the Research Literature from 1989 Through 2001 (Washington DC: U.S. Department of Justice, 2002); Eleanor Hinton Hoytt, Vincent Schiraldi, Brenda V. Smith, and Jason Ziedenberg, Reducing Racial Disparities in Juvenile Detention (Baltimore: Annie E. Casey Foundation, 2002), 20-21.

59 Eileen Poe-Yamagata and Michael A. Jones, And Justice for Some: Differential Treatment of Minority Youth in the Justice System (Washington, DC: Building Blocks for Youth, 2000).

60 National Council on Crime and Delinquency, And Justice for Some: Differential Treatment of Minority Youth in the Justice System (Washington, DC: Building Blocks for Youth, 2007).

61 See George Bridges and Sara Steen, “Racial Disparities in Official Assessments of Juvenile Offenders: Attributional Stereotypes as Mediating Mechanisms,” American Sociological Review 63, no. 4 (1998): 554-70.

62 Swain v. Alabama, 380 U.S. 202 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1986).

63 Strauder v. West Virginia, 100 U.S. 303, 308 (1880).

64 Ibid., 309.

65 Benno C. Schmidt Jr., “Juries, Jurisdiction, and Race Discrimination: The Lost Promise of Strauder v. West Virginia,” Texas Law Review 61 (1983): 1401.

66 See,