In this essay, Cynthia Lee celebrates the 25th anniversary of Critical Race Theory (CRT) by writing about the pitfalls of the ideal of colorblindness. She starts by analyzing Devon Carbado's seminal article on CRT and the Fourth Amendment, (E)Racing the Fourth Amendment. She focuses on Carbado's critique of Justice Sandra Day O'Connor's embrace of colorblindness in Florida v. Bostick, the case in which the Supreme Court modified the test for a seizure of the person. Lee uses Carbado's article as a springboard for critiquing the embrace of colorblindness by legal decision-makers involved in George Zimmerman's 2013 murder trial. Zimmerman came under fire in 2012 for shooting and killing an unarmed Black teenager named Trayvon Martin. Zimmerman claimed he acted in self-defense. He was acquitted of murder by a mostly white 6 person jury. Lee argues that the embrace of colorblindness by the judge, the prosecution, and the defense had the effect of erasing race and the possibility that racial stereotypes influenced Zimmerman’s actions from the trial. This erasure of Martin's race had the deleterious effect of making it difficult for the prosecution to counter the implicit association most people make between young black males and violent crime. The defense was able to build a narrative based on an aggressive, violent Martin who started the affray and had the upper hand, and thus persuade the jury that Zimmerman acted reasonably in self-defense. Lee presents recent social science research on race salience that suggests calling attention to race can alleviate the effects of implicit racial bias.
GW Paper Series
Ohio St. J. Crim. L. (forthcoming)