DECEMBER 2019 | AROUND THE ABA

How to confront bias in the criminal justice system

In 1999, the American Bar Association conducted a nationwide survey and released a report entitled “Public Understanding and Perceptions of the American Justice System,” in which half of the respondents thought that men were treated more fairly than women in the criminal justice system and fewer than half thought that people of color were treated as fairly as whites. A Pew Research Center study published last May on the perception of justice shows similar results some 20 years later: 9 in 10 black adults (87%) said blacks are generally treated less fairly by the criminal justice system than whites, a view shared by 61% of white adults.

“Not much has changed, even with the awareness of implicit racial bias in the criminal justice system,’’ says Sarah Redfield, a University of New Hampshire law school professor, implicit bias expert and diversity and inclusion trainer. Redfield, who was editor of the 2017 ABA book “Enhancing Justice: Reducing Bias,” served as moderator for the recent webinar Equal Justice: Confronting Bias Within the Criminal Justice System.  Redfield was joined on the panel by Raymond C. Marshall, a partner and white-collar crime litigator with Sheppard, Mullin, Richter & Hampton LLP in San Francisco; and Justin Levinson, a professor at the University of Hawaii School of Law and a leading expert on implicit bias.

The program looked at procedural fairness, strategies for reducing bias and creating policy interventions, how to become a bias interrupter and how diversity and inclusion efforts interact with the ABA Model Rule of Professional Conduct 8.4.

Marshall defines implicit bias as “an automatic and unintentional process that occurs in the human mind, and it affects how we respond to different groups in divergent ways and that those different and divergent responses can have unfortunate consequences.” All of us have implicit biases, he says, and recommends taking Harvard’s Implicit Association Test to prove it.

Why should lawyers, judges, prosecutors and others in the criminal justice system be concerned with the ABA and Pew Research studies?

“We all as lawyers like to believe that we are a country that looks to the rule of law and that the rule of law is fairly applied to all segments of society,” says Marshall. “But we’ve had enough current events in the last few years to realize that absent a good faith belief that the justice system works for all.”

 “We have an obligation to use the scientific information that we uncover and consider how it affects our assumptions in the law,” adds Levinson. “You can have the same conduct and the same profile, but if you changed one’s color, gender or sexual orientation, people from different groups will draw conclusions and analyze results differently whether it’s a jury, a judge or whether it is those who are in the system. And that is a problem for us as a profession.”

How do biases reveal themselves in the criminal justice system?

For prosecutors, bias shows up in charging decisions, pretrial and trial strategies and closing arguments, says Redfield. For public defenders, bias can alter case evaluation, client interaction and settlement. In the school-to-prison pipeline, bias can affect suspension and exclusion, referral to law enforcement, disparities in juvenile justice, differences in diversion and retention, placement in locked facilities, terms of probation and trial as adults, presentence reports, sentencing, prison discipline and even the death sentence.

“Biases in the judicial system can begin with lawmaking, then [move on to] judges, lawyers, jurors,” Levinson says.

You can reduce the negative impact of your implicit biases by becoming aware of them and taking steps to alter behavioral responses and override them. What are some bias interrupters?

“There are ways to interrupt biases by being conscious of it,” says Redfield, and gives an example of two photographs. She recalls a photo from Hurricane Katrina that shows black people wading in water carrying items from the flood and were described as “looting,” while another photo showing white people in a similar situation being described as “carrying items.”

Some strategies for interrupting biases are:

  • Be aware
  • Be motivated
  • Be trained
  • Seek diverse contacts
  • Individuate
  • Practice perspective
  • Stay accountable

“The big takeaway here is that everybody has biases,” Marshall says. “We as a profession are trying to identify it, acknowledge it and come up with some type of solutions to disrupt that.”

What is the legal profession doing to interrupt implicit bias?

In August  2016, the American Bar Association adopted ABA Model Rule 8.4 (g), which says: It is professional misconduct for a lawyer to: (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

Various state bars have adopted similar rules, according to Marshall, and “some have expanded to management operations of a law practice such as Rule 2-400 in my home state of California that goes into interactions in the office, hiring and decision-making.”

“Everyone has a responsibility from the big law firms to the solo firms, from the judges to the prosecutors,’’ Levinson says.

The ABA’s other resources, include the ABA Section of Litigation’s  Implicit Bias Toolbox.

Confronting implicit bias is easier when everyone is trained, Marshall says. “Providing a safe place for people to have these types of honest discussions without blame and more identifying recognition and problem-solving are important,” he says. “The reality is that the issue is difficult and stressful. Some people think we have done enough while others say we haven’t done enough. But it’s work that has to be done if we are to interrupt bias.”