Beyond the Bench: Law, Justice, and Communities Summit
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- A recent survey conducted for the National Center for State Courts found that only 32 percent of African Americans polled believe that state courts provide equal justice to all.1
- State courts have worked diligently over the last 25 years to address issues of racial and ethnic fairness.2
- Despite these substantial efforts, public skepticism that racial and ethnic minorities receive consistently fair and equal treatment in American courts remains widespread.
- What explains the disconnect between the extensive work undertaken by state courts to ensure racial and ethnic fairness and lingering public perceptions of racial unfairness?
- At least one explanation may be found in an emerging body of research on implicit cognition.3
What is Implicit Bias (or Unconscious Bias)?
- Research shows that individuals develop implicit attitudes and stereotypes as a routine process of sorting and categorizing the vast amounts of sensory information they encounter on an ongoing basis.4
- Implicit, as opposed to explicit, attitudes and stereotypes operate automatically, without awareness, intent, or conscious control.
- Intuition can be accurate, but can also be a source of erroneous judgment.5
- People harbor a variety of invidious associations, including:
- Male/Career and Female/Family; and
- 80% of white adults more closely associate white with good and black with bad.6
- These associations influence individual judgments.
- Judges are committed to egalitarian norms in ways that can blunt the effect of these intuitive associations on judgment.
- Contemporary psychological research demonstrates that people possess two cognitive systems: an intuitive system and a deliberative system. In ordinary life, people must use both systems. The intuitive system is faster, and a bit less conscious. Knowing when to suppress intuition is essential to sound judgment.
- A new model called “intuitive-override” provides a more accurate account of judging and points to several reforms which the civil and criminal justice systems could implement to produce more just and accurate outcomes.7
- Lorri Montgomery, Judges Team up with PBS’s Tavis Smiley for "Listening Tour," NCSC News Release (June 16, 2016) available at http://www.ncsc.org/Newsroom/News-Releases/2016/Listening-Tour.aspx.
- Nat’l Center for State Courts, Helping Courts Address Implicit Bias (2012) available at http://www.ncsc.org/~/media/Files/PDF/Topics/Gender%20and%20Racial%20Fairness/IB_Summary_033012.ashx.
- Jeffrey J. Rachlinski, Does Unconscious Racial Bias Affect Trial Judges?, Cornell Law Faculty Publications (March 2009) available at http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1691&context=facpub.
- Project Implicit offers the Implicit Association Test at https://implicit.harvard.edu/implicit/takeatest.html. Other research has found that about 40% of black adults favor white associations. Terry Carter, Implicit Bias is a Challenge Even for Judges, American Bar Association Journal (Aug. 2016) available at http://www.abajournal.com/news/article/implicit_bias_is_a_challenge_even_for_judges.
- Jeffrey J. Rachlinski, PowerPoint. For more information on Professor Rachlinski’s research, visit http://works.bepress.com/jeffrey_rachlinski/.