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December 27, 2020

"Getting Explicit About Implicit Bias"

The title of this post is the title of this effective extended discussion published in the latest issue of Judicatre. which understandibly give particular attention to research regarding criminal case processing.  The piece's preamble explains that, to "better understand the effect of implicit bias in the courtroom, Judge Bernice Donald of the United States Court of Appeals for the Sixth Circuit talked with Professors Jeffrey Rachlinski and Andrew Wistrich of Cornell Law School."  The whole discussion is interesting, and here are some excerpts:

Implicit bias can play a role at every stage of the process, from the first encounter a suspect has with the police through criminal sentencing.  Police might be more inclined to arrest Black suspects and prosecutors might be more apt to pursue cases against Black defendants.  Furthermore, judges might be given different information about Black defendants than white defendants. With disparities at every stage, the effect of implicit bias can snowball.

We do not mean to exonerate judges completely.  As we note below, some evidence suggests that they do impose disparate sentences by race, notwithstanding our research.  Also, judges are responsible for monitoring prosecutors, police, probation officers, and others who might themselves be expressing implicit bias....

There is plenty of evidence that judges are being influenced by litigant race and gender beyond just the experimental studies we have conducted with hypothetical questions.  As an example, studies show that Black defendants receive longer sentences and female defendants receive shorter sentences.  These results have persisted for decades.  Of course, sentencing data can be noisy in the sense that others — probation officers, prosecutors, etc. — are involved in setting the stage for judges’ decisions.  These results, however, dovetail with our experiments in which such factors are controlled....

Many judges are alert to the danger of bias in the courtroom and work to neutralize it.  Some types of implicit bias, however, such as those based on age, skin tone, height, weight, citizenship, etc., also have an influence on judges.  We worry that even judges who are sensitive to racial inequity might overlook some of these other sources of unfairness.

Of course, the suspicion that judges are influenced by race or gender bias is profoundly disillusioning and dispiriting for a society that rightly demands equality in the courtroom.  Disparities in the administration of justice by a judge are particularly hurtful for racial or ethnic minorities and for women, perhaps particularly so when they turn to the courts for justice and redress for the effects of prejudice in the broader society.  Acknowledging the imperfections of the judiciary can be painful for judges — especially those subject to reselection — and can give rise to public criticism and even cynicism.

December 27, 2020 at 12:40 PM | Permalink


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