Judges: 6 strategies to combat implicit bias on the bench

September 2016 | Around the Annual Meeting

A judge’s task to be the most impartial member of the legal system is a great responsibility for any single person to carry, but nearly impossible when it comes to implicit bias. Implicit bias in judges may alter the way justice is delivered in a courtroom, including the ruling on the admissibility of evidence, sentencing, instructions or how they interact with others. 

“Each of us in doing our jobs are viewing the functions of that job through the lens of our experiences, and all of us are impacted by biases, stereotypes and other cognitive functions that enable us to take shortcuts in what we do,” said 6th U.S. Circuit Court of Appeals Judge Bernice B. Donald during a program held at the 2016 ABA Annual Meeting in San Francisco.

The program, “Implicit Bias and De-Biasing Strategies: A Workshop for Judges and Lawyers,” sponsored by the ABA Judicial Division, examined the problem of implicit bias and hosted an interactive session to help a gathering of state and federal judges  from around the country to develop techniques and strategies to mitigate it.

“We all have biases – this is a way for us to process and organize information,” said Johanna Wald, director of strategic planning at the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. “Bias doesn’t make you prejudiced, it makes you human.”

The workshop featured a 10-minute training video for judges produced by the ABA Commission on Diversity and Inclusion 360. The video, “Hidden Injustice: Bias on the Bench,” featuring the nation’s top judges, law professors and experts, is the first tool of its kind to raise awareness and provide practical tips for America’s judges on the damage caused by implicit bias and the necessary steps to combat it. 

In November, Donald said, the ABA will publish a source book for judges titled “De-Biasing Strategies for the Judiciary,” a joint effort of the association’s Judicial Division, Criminal Justice Section and Litigation Section.

Techniques and strategies to mitigate implicit bias and successfully “de-bias,” recommended on a weekly basis, include:

Become aware; take the Implicit Association Test. The first step to de-biasing is to identify the stereotypes that affect, often unknowingly, personal perceptions of the character and qualities of different races and ethnic groups. The IAT measures the ease and speed with which test participants can match concepts such as “violent” or “peaceful” with photos of people of different races.

Individuation. This strategy involves gathering very specific information about a person’s background, tastes, hobbies and family so that your judgment will consider the particulars of that person, rather than group characteristics.

Stereotype replacement. Modify your own approach and recognize when you are responding to a situation or person in a stereotypical fashion. Consider the reasons and factors leading to this response and actively replace this biased response with an unbiased one.

Counter-stereotypic imaging. After you detect a stereotyped response, think of examples of famous people that show the stereotype to be inaccurate. Thinking of counter-stereotypic people provides concrete examples that demonstrate the inaccuracy of stereotypes. For example, while watching a movie that portrays black people as unintelligent, you could think of Dr. Martin Luther King Jr., Barack Obama, Condoleezza Rice, Frederick Douglas or your own intelligent black friends or acquaintances.

Perspective-taking. Consider different perspectives and step into the shoes of a stereotyped person. This strategy can be very useful in assessing the emotional damage caused by stereotyping others.  Think about how you would feel to have your abilities questioned, or to be viewed as lazy and potentially violent on the basis of your appearance. Perspective-taking can be used either proactively, without any prompting from outside sources, or reactively, after a stereotypic response or portrayal has been detected.

Increasing opportunities for contact. Actively seek out situations where you are likely to have positive interactions with stereotyped groups. This can involve joining particular clubs or participating in events that allow you to meet people who disconfirm stereotypes. In addition to seeking personal contact, you can modify your visual environment by watching movies, TV and news that portray stereotyped groups in non-stereotypical ways.