Background Materials on Implicit Cultural Bias
Judicial Conference
November 1, 2013
Honolulu, Hawaiʻi
•
“Strategies to Reduce the Influence of Implicit Bias” from the National
Center of State Courts
o summary of strategies
o entire article is available at
o http://www.ncsc.org/ibstrategies
•
Jury instructions by U.S. District Court Judge Mark Bennett (N.D. Iowa);
also available at
http://federalevidence.com/pdf/JuryInst/SocMed.Bennett.pdf
•
“Minding the Court: Enhancing the Decision-Making Process” by Pamela
Casey, Ph.D., Judge Kevin Burke, Judge Steve Leben, 49 Court Review 76
(2012)
o summary
o complete article is available at
http://aja.ncsc.dni.us/publications/courtrv/cr49-2/CR49-2.pdf
•
State v. Saintcalle, No. 86257-5, 2013 WL 3946038 (Wash. Aug. 1, 2013)
o Summary
o Decision, with concurring and disssenting opinions, is available at
http://www.courts.wa.gov/opinions/pdf/862575.pdf
•
Chapter 11, “The Social Perceiver: Processes and Problems in Social
Cognition” from Problem Solving, Decision Making, and Professional
Judgment (A Guide for Lawyers and Policymakers) by Paul Brest and Linda
Hamilton Krieger, Oxford University Press, 2010
o summary of chapter
IMPLICIT BIAS STRATEGIES1
The following is a summary of strategies to reduce the effects of
implicit bias in the courtroom from the National Center for State
Courts (NCSC). The complete list of strategies is located in Pamela
M. Casey, et. al, Helping Courts Address Implicit Bias: Strategies
to Reduce the Influence of Implicit Bias (2012), available at
http://www.ncsc.org/~/media/Files/PDF/Topics/Gender%20and%20Raci
al%20Fairness/IB_Strategies_033012.ashx.
Strategy 1: “Raise awareness of implicit bias”
·
·
Judges can seek out information through training sessions and
reading scientific research on implicit bias.
Training sessions should provide specific examples of implicit
bias in various fields, and strategies to mitigate the effects.
Strategy 2: “Seek to identify and consciously acknowledge real group
and individual differences”
·
·
·
Diversity training promotes appreciation of different cultural
perspectives and social awareness that will help reduce
implicit bias.
Evaluating stigmatized group members and their viewpoints, as
well as surrounding oneself with people committed to
egalitarianism will promote open-mindedness and reduce
reliance on stereotypes.
Organizations can provide routine diversity training,
preferably with the help of a judge.
Strategy 3: “Routinely check thought processes and decisions for
possible bias”
·
·
1
Decision-support tools may serve as approaches to
decision-making and self-checking that mitigates the effect of
implicit bias.
Decision-support tools include note taking and articulating
one’s reasoning process through writing, which allows judges
and jurors to review their reasoning before making a decision.
Checklists or bench cards listing questions or exercises can
This summary was prepared by Kelsey Inouye, William S. Richardson School of Law, University of
Hawaii at Manoa, extern for Hawaii Supreme Court Associate Justice Simeon R. Acoba, October 4, 2013.
·
also prompt decision makers to reflect on their thinking.
Courts can establish guidelines, best practice protocols, or
perspective-taking exercises.
Strategy 4: “Identify distractions and sources of stress in the
decision-making environment and remove or reduce them”
·
·
Judges should remove themselves from distractions and allow for
more preparation for cases in which implicit bias is of
particular concern. This can be done by spending more time
reviewing the facts before making a decision.
An organizational review that assesses how a court fosters bias
may be helpful. Time pressure, fatigue, and distractions can
be reduced by altering procedures or reorganizing the court
calendar.
Strategy 5: “Identify sources of ambiguity in the decision-making
context and establish more concrete standards before engaging in the
decision-making process”
·
·
Judges can establish an informal structure or follow suggested
protocol in order to create more objective standards before
reviewing a case.
Courts could establish formal protocol for decision-makers to
follow, or allow judges with more experience in particular areas
to rule on a case, so long as they commit to thinking
deliberatively.
Strategy 6: “Institute feedback mechanisms”
·
·
·
Judges can actively seek out feedback from peers or senior
judges. The Judicial Focus Group suggested that judges could
also participate in sentencing roundtables in which judges
review hypothetical cases involving implicit bias and discuss
their reasoning.
Judges can also request feedback regarding past performance,
which may help determine whether current implicit bias
strategies are effective.
Judges could document the logic behind their decisions to
promote the perception of fairness and review their
decision-making processes.
Strategy 7: “Increase exposure to stigmatized group members and
counter-stereotypes and reduce exposure to stereotypes”
·
Judges can picture admired figures that are examples of
counter-stereotypes before decision-making. Researchers
·
·
suggest hanging photos or keeping images on one’s desktop or
screen saver.
Spending time with people that are counter-stereotypic may
decrease stereotypic thinking. It may also help to practice
making positive associations with minority groups.
Organizational review and equal-opportunity and affirmative
action hiring promote positive relations between different
groups.
A.
U.S. District Judge Mark Bennett’s Jury Instruction
The following Jury Instructions are used by Judge Mark Bennett, a U.S. District Court
Judge in the Northern District of Iowa. The instructions are found in Kang et. al, Implicit Bias in
the Courtroom, 59 UCLA L Rev. 1124 (2012).
Before opening statement, Judge Bennett gives the following instruction:
Do not decide the case based on "implicit biases." As we discussed in jury selection,
everyone, including me, has feelings, assumptions, perceptions, fears, and
stereotypes, that is, "implicit biases," that we may not be aware of. These hidden
thoughts can impact what we see and hear, how we remember what we see and
hear, and how we make important decisions. Because you are making very
important decisions in this case, I strongly encourage you to evaluate the evidence
carefully and to resist jumping to conclusions based on personal likes or dislikes,
generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law
demands that you return a just verdict, based solely on the evidence, your individual
evaluation of that evidence, your reason and common sense, and these instructions.
Our system of justice is counting on you to render a fair decision based on the
evidence, not on biases.
Although the article does not explicitly state when the instruction is given, it is apparently
given in all of Judge Bennett’s cases.
In criminal cases, Judge Bennett also gives the following instruction:
You must follow certain rules while conducting your deliberations and returning
your verdict:
Reach your verdict without discrimination. In reaching your verdict, you must not
consider the defendant's race, color, religious beliefs, national origin, or sex. You
are not to return a verdict for or against the defendant unless you would return the
same verdict without regard to his race, color, religious beliefs, national origin, or
sex. To emphasize the importance of this requirement, the verdict form contains a
certification statement. Each of you should carefully read that statement, then sign
your name in the appropriate place in the signature block, if the statement
accurately reflects how you reached your verdict.
The certification statement, contained in a final section labeled "Certification" on the
Verdict Form, states the following:
By signing below, each juror certifies that consideration of the race, color, religious
beliefs, national origin, or sex of the defendant was not involved in reaching his or
her individual decision, and that the individual juror would have returned the same
verdict for or against the defendant on the charged offense regardless of the race,
color, religious beliefs, national origin, or sex of the defendant.
This instruction is given in all of Judge Bennett’s criminal cases. It was borrowed from a
statutory requirement in death penalty cases.
XIII.
Short summary: “Minding the Court - Enhancing the
Decision-Making Process” by Pamela Casey, Ph.D., Judge Kevin
Burkey, Judge Steve Leben, 49 Court Review 76 (2012). (A
white paper of the American Judges Association).1
This paper discusses several techniques to help judges be “more mindful
and aware of the decision-making process so that they make better
decisions.”
A.
The Science of Decision Making
1.
Reflexive processes -- like blinking in bright sunlight -- automatic,
rapid, and unconscious
a.
An individual relies on patterns or schemas -- characteristics
of objects, people and behaviors that based on an individual’s
experiences -- coalesce into patterns. An example: red octagon
means stop.
b.
Cognitive heuristics
Heuristics are patterns that individuals rely on to solve
problems and make decisions quickly.
Anchoring -- In one study judges sentenced more harshly
when exposed to the higher rather than a lower randomly
determined anchor. “. . . the criminal-law judges were more
certain about their decisions than those who were not
experts in criminal law, suggesting that ‘experts may
mistakenly see themselves as less susceptible to biasing
influences on their sentencing decisions.’
Another heuristic is reliance on small samples as indicative
of the larger population.
-- A study indicated that even though 4 interviewees on a
given day may all be highly desirable, interviewers will be
reluctant to score all highly, and the interviewees at the end
of the day will be more likely to be ranked lower.
c.
Implicit biases
Researchers found that “when judges are aware of a need to
monitor their own responses for the influence of implicit
racial biases, and are motivated to suppress that bias, they
appear able to do so.”
2.
Reflective processes -- like solving a math problem -- deliberative,
slow, and conscious
1
This summary was prepared by Carol K. Muranaka.
B.
Mindful Judicial Decisions
To lessen the effects of some of the faulty processes, one step is to
understand the causes of “diminished decision-making abilities, which
include:
 fatigue
 depleted resources (glucose fuels the brain; reflective processes
demand more fuel than reflexive processes)
 mood
 ease of processing information
 multitasking.
C.
Becoming More Mindful
The techniques that help in making better decisions are:
(1)
focusing on the higher purpose of the proceeding;
(2)
considering the factors used to make repetitive but important
decisions;
(3)
being aware of fatigue and distractions;
(4)
preparing checklists as decision aids;
(5)
seeking feedback and fostering accountability.
State v. Saintcalle:
Implicit bias and peremptory challenges
Summary1
In State v. Saintcalle, No. 86257-5, 2013 WL 3946038 (Wash. Aug. 1, 2013), the
Washington Supreme Court reviewed a criminal defendant's challenge to his conviction for
first degree felony murder. 2013 WL 3946038, at *1. Kirk Saintcalle, a black man, challenged
the State's use of a peremptory challenge to strike the only black venireperson in his jury pool.
Id. Saintcalle argued that the State's peremptory strike was racially motivated, "in violation of
the equal protection guaranty enshrined in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,
90 L.Ed.2d 69 (1986)." Id. The majority of that court affirmed Saintcalle’ s conviction on the
basis that the trial court's finding that there was no purposeful discrimination was not clearly
erroneous, and thus the strike was permissible under Batson. Id .
However, the Washington court took the opportunity to examine whether its Batson
procedures were "robust enough to effectively combat race discrimination in the selection of
juries[,]" and concluded that they were not. Id. The court 's concern was the prevalence of
implicit bias, which it articulated as follows:
Twenty-six years after Batson, a growing body of evidence shows that racial
discrimination remains rampant in jury selection. In part, this is because Batson
recognizes only 'purposeful discrimination ,' whereas racism is often unintentional,
institutional, or unconscious.
Id. The court concluded that Batson procedures must be changed to "recognize these more
prevalent forms of discrimination." Id. The majority declined to create a new standard in
Saintcalle though, noting that the issue was not raised, briefed or argued. Id.
The case contained a total of five opinions, the lead opinion by Justice Wiggins, and four
separate opinions. A summary of each opinion follows:
Lead Opinion by Wiggins, J.
The lead opinion expressed skepticism that Batson could combat peremptory challenges
This summary was prepared by Matthew Ezer and Merissa Velez, law clerks for Hawaii Supreme Court
Associate Justice Simeon R. Acoba, Jr., October 4, 2013.
1
1
based on unconscious or implicit bias. However, the lead opinion did not change the Batson
rule or abolish peremptory challenges because the issue had not been briefed. The lead opinion
noted the following concerns:
1)
It is evident that Batson is failing:
- Studies show that after Batson peremptory challenges continue to be
exercised in a race-based manner. For example, "in 317 capital trials in Philadelphia
between 1981 and 1997, prosecutors struck 51 % of black jurors and 26% of nonblack
jurors, defense counsel struck 26% of black jurors and 51% of nonblack jurors. Race
based challenges decreased by only 2% after Batson.
- Another study showed that in one North Carolina county, 71% of challenged
black jurors were removed by the prosecution and 81% of challenged white jurors were
removed by the defense.
- In 42 cases in Washington since Batson, Washington appellate courts have
never reversed a conviction based on an erroneous denial of a Batson challenge. In 28 of
those cases, the prosecution removed every prospective juror of the same race as the
defendant.
2)
Batson has made it very difficult for defendants to prove a challenge was
discriminatory even where discrimination almost certainly existed.
- Unconscious Bias or Implicit Bias is a part of human nature due to the
"cognitive shortcuts" people use.
- People are rarely aware of the actual reasons for their discrimination and will
genuinely believe the race-neutral reason they give to mask it.
- Batson, however, is only equipped to root out purposeful discrimination, which
many trial courts probably understand to mean conscious discrimination.
3)
There is constitutional value in a diverse jury.
- The jury functions as a "ground level exercise of democratic values."
- If we "allow the systematic removal of minority jurors, we create a badge of
inferiority, cheapening the value of the jury verdict."
2
- Additionally, "studies suggest that compared to diverse juries, all-white juries
tend to spend less time deliberating, make more errors, and consider fewer perspectives."
4)
A new rule should replace Batson's "purposeful discrimination" requirement
with a requirement that necessarily accounts for ... the problem of unconscious bias."
--------------------------------------------------------------------------------------------------------------------Concurring Opinion by Madsen, C.J.
(joined by James M. Johnson , J.)
The court should not go beyond the arguments of the parties, but instead should
apply Batson.
1)
State courts have some flexibility to develop procedures to comply with Batson.
2) Batson is designed to address purposeful discrimination based on either the race of
the juror or the racial stereotypes held by the party.
3) This case should be decided under Batson's "purposeful discrimination constitutional
standard and should not be a forum for discussing how to counter "implicit" or
"unconscious" discrimination where these questions have not been raised by the parties.
-------------------------------------------------------------------------------------------------------------------Concurring Opinion by Stephens, J.
(joined by Fairhurst, J., and Charles Johnson, J.)
There may be a "subconstitutional" right of litigants to peremptory challenges, so
the court should exercise restraint in fashioning a new rule with respect to peremptory
challenges.
1)
The rule regarding peremptory challenges is based on the federal equal protection
clause, limiting the exercise of peremptory challenges based on a finding of purposeful
discrimination.
- The jury trial protections contained in the Washington state constitution do not
necessarily require restricting or eliminating the use of peremptory challenges. Instead,
"it may be as valid an argument to say that the state jury trial right enshrines peremptory
challenges as to say it restricts them."
2)
The proposed invalidation of peremptory challenges goes beyond invalidating
those challenges that violate equal protection rights of litigants and jurors, and may violate a
"subconstitutional 'right' of litigants to participate in jury selection by exercising both for-cause
3
and peremptory challenges."
--------------------------------------------------------------------------------------------------------------------Concurring Opinion by Gonzalez, J.
Abolish peremptory challenges. Although the defendant did not explicitly request the
court to alter its rules regarding the jury selection process, the case questions the underlying
validity of peremptory challenges and the framework for reviewing such challenges.
1)
Additional briefing on the issue of peremptory challenges was not necessary,
because the need to abolish peremptory challenges was so readily apparent.
2)
Considering the purposes and the framework of jury selection as a whole,
including challenges for cause,"[t]he nature and scope of voir dire is left largely to the
discretion of the trial court."
- In practice, "litigants simply use peremptory challenges to remove the
prospective jurors they perceive to be least favorable to their position, regardless of
whether such prospective jurors possess biases so severe as to render their participation
unfair."
- With limited information and time, attorneys tend to reply on stereotypes, and
even attorneys who use social science statistical profiles rely heavily on generalizations.
3)
Peremptory challenges can be racially discriminatory.
- Peremptory challenges can be based on a straightforward, race-based
stereotype or generalization.
- Peremptory challenges can be based on a simple or complex statistical juror
profile that incorporates race as an indicator of favorability.
- A peremptory challenge can be motivated by a desire to obtain a particular
racial dynamic on the jury.
- Peremptory challenge can be based on an unconscious racial bias.
4)
Race continues to play a significant role in peremptory challenges.
Laboratory studies have reached this conclusion.
4
5)
Case-by-case adjudication and the Washington appellate court's review
under Batson are not enough to effectively combat the continued racial discrimination that
underlies the use of peremptory challenges for a number of reasons.
- Many racially discriminatory peremptory challenges remain unchallenged, and
in some cases entirely imperceptible to the opposing party and judge.
- Even if an objection is made, plausible race-neutral reasons are easy to conjure
up in any given case, regardless of whether such racial discrimination is conscious or
unconscious.
- There is no way for a trial court typically to determine whether a given
peremptory challenge is racially discriminatory.
- On appeal, courts have no way to review meaningfully the challenge to the
peremptory challenge, as evidenced by the fact that many questions remain with respect
to the application of Batson.
- As to Batson, (1) it remains unclear exactly which groups are to be protected
from discrimination in jury selection; (2) how to determine whether a prima facie case
has been established and how to review that determination on appeal; (3) how direct or
substantial the influence of race must be in order to render a peremptory challenge
racially discriminatory; (4) whether unconscious racial discrimination is prohibited under
Batson.
6)
There are other injustices with respect to peremptory challenges.
- The use of peremptory challenges contributes to the underrepresentation of
minority groups on juries, even absent purposeful discrimination.
- Peremptory challenges impose substantial administrative and litigation costs.
- Peremptory challenges result in juries that are less effective and less productive.
- The use of peremptory challenges amplifies underlying resource disparity
among litigants.
7)
None of the supposed benefits of peremptory challenges are actually realized.
- No jury impartiality is realized because attorneys use peremptory challenges to
5
exclude unfavorable jurors rather than to obtain an impartial jury.
- Peremptory challenges are generally ineffective even for the adversarial purpose
of excluding unfavorable jurors.
- There is no merit to the idea that impartiality is furthered by allowing litigants to
exercise arbitrary and unsupported juror challenges.
- A trial judge refusing to grant challenges for cause abuses his discretion only in
the rare instance that the juror's partiality is abundantly clear.
- Attorneys usually do not alienate prospective jurors during voir dire.
- Attorneys should not have to worry about choosing jurors with whom they feel
comfortable.
- Allowing causal challenges provides litigants more than enough involvement in
jury selection and adequately ensures fairness and impartiality.
- True extremists are excused for cause if there is evidence to establish their
extremism, and if such extremism remains hidden, the unreliable and inaccurate use of
peremptory challenges will fare no better at removing the extremism from the jury.
8)
Legal reasons peremptory challenges should be abolished:
- Peremptory challenges based on race violate the constitutional requirement of
equal protection of the laws.
- Judicial review cannot solve the fundamental flaws inherent in peremptory
challenges, and there is "simply no need for litigants to be able to exclude prospective
jurors without reason."
- Elimination of peremptory challenges would also eliminate all of the other
substantial costs imposed by such challenges on the justice system.
9)
The court should abolish peremptory challenges as a matter of the rules of
procedure. In the alternative, the court should "at least take steps to augment the
effectiveness of the current jury selection process under Batson."
--------------------------------------------------------------------------------------------------------------------6
Dissenting Opinion by Chambers, J.
Batson should be modified, rather than doing away with Batson altogether.
1)
Batson should be modified.
- "Batson ignores the fact that discrimination is discrimination whether it is
purposeful or not," and "is real whether it is done with racist intent or not"
- "The minority juror who is removed because of discrimination is denied the
right to participate in one of the two most fundamental democratic processes in our
nation."
- Therefore, "based on our own understanding of the pernicious effect of
unconscious racism on a fair system of justice," a prima face case of discrimination under
Batson should be established whenever the last remaining potential juror of a recognized
minority is struck.
2)
Peremptory challenges should be retained because they help to ensure a fair trial
- Jurors are sometimes not candid.
- Jurors may fail to understand they have deep-seated prejudices that may not be
easily developed during voir dire to support a for-cause challenge.
7
Summary of “The Social Perceiver: Processes and Problems in Social Cognition,” Chapter
11 of Problem Solving, Decision Making, and Professional Judgment (A Guide for Lawyers
and Policymakers) by Paul Brest and Linda Hamilton Krieger, Oxford University Press,
2010. 1
The chapter begins with:
Many of the decisions that lawyers, judges, and policy professionals make
involve interpreting and predicting other people’s behavior.
-- introduces readers to various sources of bias and distortion in social perception and
judgment
-- describes how “intuitive” psychological theories can lead us astray
-- suggests what can be done.
1.
The cognitive mechanics of social schemas
a.
Stereotypes and stereotyping
Children learn stereotypes at an early age. By adulthood, stereotypes are
“regularly used to classify people and then to construe, encode, recall, and predict
their behavior, motivations, and character attributes.” Id. at 306-307.
b.
Schemas, including social schemas, contain accumulated knowledge and
beliefs about one’s experiences. Response is generally automatic and
unconscious.
2.
Effects of social schemas on social perception and judgment
a.
Once we characterize another person in a particular way, we may
misinterpret his/her actions in ways that preserve that impression, but it could be
totally inaccurate. Id. at 320.
b.
“Stereotypes, person prototypes, and other kinds of social expectancies
operate at every state of the memory process.” Id. at 321.
c.
When a person behaves in a stereotype-confirming ways, we will attribute
that behavior to dispositional factors such as character traits. But if the person
behaves in a stereotype-inconsistent manner, then we try to explain the
discrepancy by attributing the behavior as “exceptional” rather than questioning
the accuracy of our stereotype. Id. at 323.
1
This summary was prepared by Carol K. Muranaka.
3.
Beyond stereotypes
Heider/Weiner Matrix:
Internal Locus
(dispositional)
External Locus
(situational)
Stable
Unstable
Skill, laziness
Mood, task prioritization
Higher predictive validity
Higher moral responsibility
Lower predictive validity
Higher moral responsibility
Family resources and
responsibilities, stable peer
group influences, enduring
commitments
Contributions of others,
transient peer group
influences, extenuating
circumstances
Higher predictive validity
Lower moral responsibility
Lower predictive validity
Lower moral responsibility
Id. at 332-333.
Example: Laziness or disorganization are “internal” explanations for tardiness; while getting
stuck in traffic is “external.” Intelligence is stable; effort is unstable.
“Attributions to external, stable factors diffuse moral responsibility, but are seen as
predictive, while attributions to external, unstable factors do not provide a basis for either
judgment or prediction.” Id. at 333.
Professor Krieger states:
Biases in causal attribution affect the exercise of professional judgment in
lawyering, judging, policy making, and management, not to mention in our personal
lives. First, our tendency to attribute our own failings or negative outcomes to situational
factors (which we often overoptimistically view as transient) and to attribute others’
failings or negative outcomes to internal dispositional factors makes us vulnerable to a
host of ego-enhancing biases. These biases often impair our willingness or ability to
compromise with others, to be open to understanding their points of view, and to predict
accurately how well or poorly we or other people will perform on future tasks.
Id. at 333.
2
4.
Debiasing social judgment
a.
In making sense of people, we use two systems of information processing:
a “low road” system that is automatic, rapid, and unconscious; and a “high road”
system that is conscious, controlled, and resource-intensive. Id. at 334.
b.
Professor Krieger suggests the following strategies to correct biased
impressions:
 “educate decision makers that their evaluative judgments may be
influenced by subtle forms of bias, no matter how sincere their conscious
commitment to fairness, objectivity, and nondiscrimination;
 structure incentives and foster an organizational culture that motivates
decision makers to identify and correct implicitly biased impressions or
initial judgments;
 destigmatize implicit bias, so that self-examination and conscious
correction are less threatening;
 monitor decisions systematically, so that broad patterns suggestive of
uncorrected bias can be identified and addressed;
 reduce, where possible, decision makers’ levels of cognitive busyess when
making decisions;
 generate clear, objective evaluative criteria, and supply evaluators with
information relevant to those criteria; and
 encourage decision makers to “consider the opposite” before acting on or
attempting to justify an initial impression.”
Id. at 337-338.
3