Implicit Bias in the Judicial System
About the Project
There is strong scientific support that we naturally assign people into various social categories divided by traits, such as age, gender, race, and role. And just as we might have implicit cognitions that help us walk and drive, we have implicit social cognitions that guide our thinking about social traits.
Science shows that some of the underlying cognitions include stereotypes, which are simply traits that we associate with a category. These cognitions also include attitudes, which are overall, evaluative feelings that are positive or negative. The term “implicit bias” includes both implicit stereotypes and implicit attitudes.
Though our shorthand schemas of people may be helpful in some situations, they also can lead to discriminatory behaviors if we are not careful. Given the critical importance of exercising fairness and equality in the court system, lawyers, judges, jurors, and staff should be particularly concerned about identifying such possibilities.
Although the problem of implicit bias has been studied and discussed by many, it has been addressed by few. Thus, the Section of Litigation will partner with the National Center of State Courts (“NCSC”) to address the issue in the judicial system. The NCSC has initiated its own Campaign to ensure the Racial and Ethnic Fairness in State Courts
Through the NCSC, we will edit and use a documentary film on the topic of implicit bias that was produced by the Judicial Council of California and partially funded by the NCSC. That film, entitled “ Continuing the Dialogue—The Neuroscience and Psychology of Decision Making: A New Way of Learning,” has been shown on California Court TV to judicial staff and judges, who were then polled on their reactions.
With the help of the NCSC video our project will:
- Provide an implicit bias “tool box” that will include resource materials for legal professionals and educators to use in raising awareness in their own jurisdictions. These resource materials will include, among other things, (1) instructions on administering the Implicit Association Test (implicit.harvard.edu/implicit/demo), (2) a short video on the problem of implicit bias in the justice system, and (3) a curriculum/follow-up discussion outline that can be tailored to specific jurisdictions.
- Will offer a “road show” in which we will introduce the “tool box” in two or three select jurisdictions, as an example of how individual leaders can use the “tool box” and introduce implicit bias programming in their own jurisdictions
Jerry Kang, Implicit Bias: A Primer for Courts, prepared for the National Campaign to Ensure the Racial and Ethnic Fairness of America’s State Courts, Aug. 2009.
- Implicit Bias: A Primer for Courts
Jerry Kang - Implicit Bias, “Science,” and Antidiscrimination Law
Samuel R. Bagenstos
