Shortly after we are born we begin categorizing information. Often categories form around observables such as color, shape, and size. . . . Not far behind this rudimentary categorization process is developing associations of characteristics with social groups. Often, these groups fall along the lines of people like you (i.e., the “in-group”) and people not like you (i.e., the “out-group”). These generalized characteristics come from many different sources, including your parents, friends, [neighbors, and the larger community,] and can be either positive or negative. . . . Over time these associations strengthen and become automatic, and the seed of implicit bias is planted.
Implicit bias is a part of human psychology. It is normal. And yet, the concept makes us uncomfortable. Even though bias can be positive as well as negative, to some, the mere term carries a negative connotation associated with an accusation of bigotry, triggering defensiveness and resistance to open discussions of the topic. To others, however, it is the key to understanding discrimination and unfairness. Either way, we must be honest about the impact implicit bias has on those who come before the courts, be it an issue for the attorneys, the judges, and/or the parties. There must be more than a basic understanding of this issue.
Attorneys and judges are not immune from implicit biases. And although “judges are specifically trained to compartmentalize and shield their decisions from extraneous influences, including any of their own biases, implicit or otherwise,” these may still color their decision-making process. This is most critical in judge trials or when the same parties or attorneys appear before the same judges on a regular basis. Moreover, “implicit racial bias and other implicit biases exist even, and sometimes particularly, in egalitarian individuals. In fact, such individuals are less likely to be aware of these implicit biases, because they lack explicit biases.”
Recognizing Implicit Bias
A common misbelief about implicit biases is that “they affect other people but not me and that it’s possible to eliminate these biases with relatively simple interventions. These are both assertions that lack empirical support in research of the last 20 years.”
The subconscious nature of implicit bias makes it difficult for a person to “consciously recognize it and [they] would deny harboring such biases, if asked. Similarly, people are often unaware of the impact of these biases upon their own decision making.” “The problem is when the brain automatically associates certain characteristics with specific groups that are not accurate for all the individuals in the group (e.g., ‘elderly individuals are frail’),” to the detriment of singular individuals.
A particularly simple way to understand implicit bias, however, may be to recast these automatic attitudes and beliefs as intuition. In fact, intuition has been referred to as “the likely pathway by which undesirable influences, like the race, gender, or attractiveness of parties, affect the legal system.” Judge Andrew J. Wistrich and Professor Jeffrey J. Rachlinski explain the role of intuition in decision-making thus:
Intuitive decision making consists of relying on one’s first instinct. Intuition is emotional. It relies on close associations and rapid, shallow cognitive processing. Intuitively, if a choice sounds right and feels right, then it is the right choice. Psychologists sometimes refer to this style of decision making as System 1 reasoning. System 1 produces rapid, effortless, confident judgments and operates outside conscious awareness. When we go to our gut, we decide quickly and feel that we are right. But human beings did not develop advanced civilizations with System 1. Human beings, of course, have an enormous capacity for higher-order deliberate reasoning. Mathematics, deductive logic, and analogical reasoning require much more than simple intuition. Psychologists sometimes refer to higher-order reasoning as System 2. System 2 is slower and conscious. It requires effort, and if we are distracted, rushed, or tired, we use System 2 less. Oddly, when the two conflict, people have less faith in System 2 than in System 1. But System 2 is where logic—and hence most legal reasoning—lies.
And even though having implicit biases is not the same as acting upon them, the mere fact that they are pervasive and normal for every human being should be enough to put decision makers on guard. Judicial fairness demands no less. So, how can we become aware of what we cannot consciously perceive? Indeed, how do we know whether implicit bias is or may be a problem for the decision maker? Perhaps some of us have found effective ways to ferret out our own biases, but if not, we can rely on scientific methods developed to address this question.
One such test, the most recognized and influential testing measure of implicit bias, is the Harvard Implicit Association Test (IAT). The IAT measures the strength of associations “between social groups (for instance, black and white people) and evaluations (such as good and bad). Just as you likely have a strong mental link between peanut butter and jelly, or doctor and nurse, our minds make links between social groups (like ‘women’) and evaluations (‘positive’) or stereotypes (‘nurturing’).” Created in 1998, the test has faced much criticism since its inception but nevertheless remains a major contributor to understanding our own implicit biases.
In any event, no matter how you identify your implicit biases, the work of the individual judge or lawyer is to learn to process such biases in order to neutralize their impact on litigants. Systemically, this is no small task, given the wide divergence of opinions about their existence, their subconsciousness, and the sheer amount of personal effort necessary to counteract their possible detrimental effects. Nevertheless, knowing what we know today from empirical studies conducted by scientists, lawyers and judges, and other sundry court observers, it is evident that for judges in particular, there should be clear consensus as to the relevance of implicit bias in the courtroom.
The Importance of Consensus
A court system—which is “an institution comprised of human beings—needs to address human characteristics, such as implicit biases.” In this regard, it can be posited that court systems function similarly to a “human system,” to borrow a term used in the social sciences when referring to the family unit. This is to say that like families, courts operate within a hierarchical structure, with defined expectations and roles for all concerned, namely, judges, attorneys, and parties. Like families, court systems operate in the context of central themes, which for courts mean fairness in their decision-making process and a commitment to the rule of law. These systems generally strive for equilibrium as the optimal state. In the case of the courts, a balance or equilibrium is calibrated through well-established ethical rules. When implicit biases affect a judge’s behavior and decision-making, the resultant decision may be highly prejudicial, and the court system’s integrity and impartiality are invariably compromised. Such consequences are inimical to the tenets of justice and should be addressed through appropriate systemic intervention.
Thus, despite the intensely personal nature of implicit bias, and the difficult task of acknowledging, understanding, and ferreting out such, judges should be concerned and remain vigilant, not only because it is directly implicated in their discharge of judicial ethical duties, but also because of its potentially harmful effects on the rule of law, a foundational concept in our system of government. Indeed, in terms of ethics:
[J]udges have ethical obligations to be impartial and perform the duties of their office without bias. Inherent in their obligations is the obligation to be aware of and act on their own negative biases and bias that exists within the legal system. Public trust in the courts depends, in part, on the public perceiving judges as free from prejudices or partiality.
If we ignore implicit bias, its effects, and possible remedies, we most assuredly imperil the integrity of the system.
Further, concern for the well-being of the system as a whole is warranted. A yearlong study of implicit bias as it related to criminal court trial judges concluded that racial bias did in fact affect those judges. The study was particularly telling, as it was conducted not by social scientists but by two university professors, one law professor, and a federal judge. Still, another study by the National Center for State Courts on implicit bias within the judiciary of 42 states found that judges in most jurisdictions “reached unfair decisions on the basis of personal characteristics such as gender.”
In regard to gender, it is useful to briefly note the case of Page v. Parisotto, where California’s workers’ compensation system was charged in a class action complaint with depriving “women workers of fair compensation on the basis of stereotypes about gender and women’s reproductive biology” by consistently awarding women “fewer permanent disability benefits than the extent of their injuries” merited, often assigning negligible, and in some cases a zero, disability rating for breast cancer and the loss of a breast, while “similar harms unique to men [were] not assigned a negligible or zero disability rating.” Other allegations also charged that the workers’ compensation system “failed to prevent or prohibit the impermissible gender discrimination” and instead “affirmatively contributed to a policy and practice of gender bias in the system.” While the case seems to have hit a jurisdictional roadblock, the allegations, whether fully substantiated or not, give us pause, and illustrate the hurtful and pernicious effect on women when biased decision-making deprives them of crucial benefits. Such results should never be acceptable.
Implicit Bias Happens: What Then?
Despite the fact that implicit bias is a difficult concept to discuss, rejected by some and embraced by others, research strongly suggests that it can, and does in fact, impact individuals’ everyday life in detrimental ways: Negative biases can deprive you of a job, promotions, training, and other work opportunities. In the court system, implicit bias can send you to prison, deprive you of workers’ compensation, or take away the custody of your children. The challenge, of course, is to acknowledge, understand, and address the negative implicit response before it becomes a problem. Here, there are no easy answers.
In this regard, the most common response has been to promote and provide “implicit bias training” in the belief that awareness can change behavior. The results are mixed. Some believe such training does in fact change behavior for the better; others discount it as ineffectual. Yet others advocate for an approach altogether different than training, more geared toward prohibiting specific behaviors as a way to deter bias and improve outcomes.
Regardless of the approach used to counteract implicit bias, the importance lies in addressing it systemically and systematically. Judges can and should address it in order to maintain a fair and impartial court system. One particular writer suggests what he calls “deflate, debias, defend [against bias], and data.” In that scheme, data is regularly collected in cases where there is a great deal of discretion as a way to test for indicia of bias. Such data-driven results should serve to direct corrective measures when necessary.
The Committee for Equality and Justice of the Minnesota Judicial Branch produced an implicit bias bench card, which serves as a quick guide on how to minimize bias. Other resources developed by the National Center for State Courts provide strategies that, taken together, present a robust curriculum designed to tackle the issue of implicit bias in its entirety. None are easy to implement nor promise quick results; they do require commitment to a process ranging from assessing the risk of implicit bias to engaging fully with individuals who are the subject of harmful generalizations as a way to minimize stereotypical thinking. A full discussion of these strategies is beyond the scope of this article, but they may help foster the fashioning of effective and creative programs that can address the issue at the individual and institutional levels.
