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November 01, 2015 Judicial Ethics

Manifesting Implicit Bias

By Marla N. Greenstein

Judges are uniformly familiar with Rule 2.3 of the 2007 ABA Model Code of Judicial Conduct. It is second nature for judges to cautiously and consciously comply with 2.3(B) in carefully selecting words and actions that could in any way manifest bias or prejudice against the protected classes enumerated in that provision. It is an exhaustive list that continues to grow as our constantly evolving awareness extends to the full range of human expression. We know and see express bias. And courts are currently addressing court employees and a few judges who are exhibiting bias through the guise of religious liberty in refusing to implement newly recognized same-sex marriage rights. It is a small minority of judges and court employees who refuse to recognize the authority of our highest court in this area and are clearly violating that part of 2.3(B) that prohibits manifestations of bias based on sexual orientation. We see it. We know it.

What is more difficult and is pondered by the various articles in this issue of The Judges Journal is how judges may be manifesting their own “implicit bias.” Through word choices, a tone of voice, an assumption made by the way someone dresses or speaks, judges every day express their own implicit bias.

Judge Stephanie Domitrovich’s interview with Janet Cohen shows how language choices express our own implicit biases. Those words can express positive views or negative. What they have in common is that those words create a value-laden picture of the person based on characteristics independent of their actions. It can be a crying man who appears “too emotional” or a mother’s demeanor that makes her appear “cold” and “uncaring.” As judges, these evaluations are a daily part of decision making.

Is the person who is glancing down while speaking appearing to be “less than candid”? Is the teenager chewing gum and smiling while being addressed by the court disrespectful and unlikely to comply with your court orders? These and other scenarios are contemplated by Judge Dana Leigh Marks in her article.

Unlike the bias contemplated by Rule 2.3, implicit bias is unable to be easily identified by a slur, a stereotype, or an inappropriate gesture. Implicit bias is expressed through word choice and mental assumptions, often informed or reinforced by life experience rather than by objective reason. A judge may not recognize or realize his or her own implicit bias. And it is a fine line between our informed intuition and implicit bias that will lead to an incorrect assumption.

For all these reasons, our Code of Judicial Conduct will never prohibit expressions of implicit bias. In fact, many of the expressions of implicit bias are embedded in custody determinations, sentencing findings, and veracity assessments. Through increased sensitivity and training, judges can become more aware of personal assumptions and characterizations that are not independently supported. So while our Code of Judicial Conduct cannot possibly prohibit the manifestation of implicit bias, each judge can live his or her own version of 2.3(B) in careful awareness and contemplation of the assumptions we all carry with us.