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May 24, 2013

"Implicit Racial Bias in Public Defender Triage"

The title of this post is the title of this intriguing new piece co-authored by law professor L. Song Richardson and psychology professor Phillip Atiba Goff. The piece is available now via SSRN, and here is the abstract:

Despite the promise of Gideon, providing “the guiding hand of counsel” to indigent defendants remains unmanageable, largely because the nation’s public defender offices are overworked and underfunded.  Faced with overwhelming caseloads and inadequate resources, public defenders must engage in triage, deciding which cases deserve attention and which do not.  Although scholars have recognized the need to develop standards for making these difficult judgments, they have paid little attention to how implicit, i.e., unconscious, biases may affect those decisions.  There is reason to suspect that unconscious biases will influence public defender decisionmaking due to generations of racial stereotypes specific to stigmatized groups and crime.  This Essay urges legal scholars and practitioners to consider how implicit biases may influence the rationing of defense entitlements and suggests ways to safeguard against the effects of these unconscious forces.

A few recent related posts:

May 24, 2013 at 06:20 AM | Permalink


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Pretty outrageous thesis

Posted by: omfg | May 24, 2013 10:19:57 AM

There are serious questions regarding the validity of the IAT. Perhaps I missed it, but I didn't see the authors mention it. That's no harmless error and demonstrates how the lack of peer review is a stain on student edited publications.

Posted by: Steve Erickson | May 24, 2013 10:53:44 AM

So now public defenders are racists too???


I have a few problems with the cosmology of defense work, but the idea that defense lawyers are racists, or "unconscious racists," as the charge is made when it's sleazed down, is preposterous.

To my pals in the defense bar: Welcome to getting a pie in the face based simply on the fact that you do your job the only way you can.

Posted by: Bill Otis | May 24, 2013 11:24:05 AM

The thesis of the article, if it's true,* isn't a "pie in the face," but an important insight to take on and factor into the way we do our job.

* I haven't read the article yet (I flagged it in our roundup a couple of weeks back), but from the abstract, the article only seems to be making a prediction based on the existing literature on unconscious bias (along with giving some guidance on how to avoid its effects). It would not surprise me in the least if that prediction turned out to be true.

Posted by: Michael Drake | May 24, 2013 12:56:24 PM

It’s only a valid and "important insight" if the defense attorneys are white:

"Well actually, Rushbo, racism is the belief that one race – whites -
should rule all others
. Get your definitions straight."
~ Chris Matthews, 4/1/13: realclearpolitics.com

Posted by: Adamakis | May 24, 2013 1:18:25 PM

Michael Drake --

Any time the incendiary charge of racism gets tossed loosely in your direction, no matter how gussied up it is in academic jargon so it can be trotted out as an "insight," you have just received a pie in the face. And that's the BEST than can be said of it.

Posted by: Bill Otis | May 24, 2013 1:55:39 PM

\ "There is reason to suspect that unconscious biases will influence...due to generations of racial stereotypes...
stigmatized groups.." /

--> "This is the effort that we are seeing of Jim Crow. Some of them in Congress right now with this Tea Party
movement would love to see us as 2nd class citizens...you and me...hanging on a tree."
– Rep. Andre Carson (D), Aug. 2011

--> "Project 21--House Negroes Stand Up for the Tea Partiers" - W. P. Simpson, Apr 2010

--> "The IRS overtaxing The Tea Party? I never thought I'd say this to the IRS - THANK YOU! THANK YOU…FOR DENYING…
any group who hates"; "I LOVE THE IRS!!!…" - Bette Midler, May 2013

Which stigamtised groups?

-- abcnews.go.com/.../rep-andre-carson-tea-party-wants-to-see-blacks-hanging-on-a-tree
-- Blacklash, 2013, by D. Borelli
-- www.examiner.com/article/bette-midler-thanks-irs-for-targeting-tea-party-groups

Posted by: Adamakis | May 24, 2013 3:40:47 PM

My problem with the article -- from reading it apparently an essay in a symposium which is the only excuse for its major logical leaps -- is that it goes from the observed phenomenom of implicit bias (a/k/a racialism, the tendency to associate certain characteristics with racial identity, see, e.g., discussion in Batson) to the assumption that it has a significant impact on how public defenders make decisions and thus significant steps need to be taken to address its impact.

I think the essay would have been fine to note that racialism can impact how people act and that it could have an impact on the allocation of resources between clients by a public defender system and then suggested the need for a specific study to determine if it is an actual problem. (I would also note that there are other potential implicit biases besides race noted in the article including socio-economic class, cultural differences, and assumptions based on criminal history).

Posted by: tmm | May 24, 2013 4:43:18 PM

Bill, the case for implicit stereotyping is pretty strong. So it seems to me that to deny its possible effects out of hand is to bury your head in the sand (or face in the pie, as the case may be).

Posted by: Michael Drake | May 24, 2013 4:48:54 PM

Michael Drake --

All depending on the pie, that might not be that bad an idea.

Still, I for one have grown weary of the notion that white = bad. It's not just that it's weary or nasty or Al Sharptonesque bullying (although it is all of those). The main problem with it is that it's false.

Posted by: Bill Otis | May 24, 2013 5:25:24 PM


Yale Law.

Half Black racist.

Hate America academic.

Reads not just minds, but the unconscious, finding thoughts even the subject does not experience.

Sweetie, you forgot something. The victimization rates are six times higher among the pseudo-black people of our nation. So the stereotype is highly accurate folk statistics, backed up by the gold standard of measurement of crime rate.

Most of their genes come from Ireland and Scotland, and their lifestyles of entitlement, welfare dependency, and bastardy are the result of the VFL assault on their families. Their rate of bastardy accounts for the entire disparity.

The biggest racists in this country, Sweetie? And it is explicitly stated by them, not any unconscious bias.

The VFL's. Reproductive rights is racial supremacist code for reducing the fecundity of undesirable ethnic groups.

Posted by: Supremacy Claus | May 25, 2013 5:55:51 AM

I need to read that .

When working with a Black criminal defense / civil rights lawyer , the issue was about the question of law involved .

The question of law drove pro bono work , regardless of skin color or court level .

At times the question was resolved at trial level ; at times some level of the appellate paths .

¿ Why would not a public defender focus on the question of law ?

Docile Jim Brady
Columbus OH 43209
Associate Member OACDL
Opining for myself , not OACDL
Nemo Me Impune Lacessit

Chocolate , any berry , key lime , mincemeat , raisin , apple

Posted by: Just Plain Jim | May 25, 2013 8:31:21 AM

Bill, no doubt there are those who think all whites or white males are congenital racist oppressors. But the implicit stereotyping at issue here doesn't really have anything to do with that. It has to do with biases that probably everyone has, and that can subtly influence the beliefs and decisions of even the most conscientious egalitarian. Insisting that these biases make us all out to be David Duke or whatever is really just the flip-side of the left wingnut worldview I described in my first sentence.

Posted by: Michael Drake | May 25, 2013 4:22:55 PM

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