This post is a quick primer on what you should know about implicit bias and the scholarly research around it.
1. Everyone has implicit biases.
Research has found implicit bias to translate to discriminatory practices by doctors, judges, jurors, attorneys, teachers, etc. Why does everyone have implicit bias? Cognitive psychology tells us that mental shortcuts, or heuristics, allow our brains to process a lot of information faster by using past information (accurate or inaccurate) to make a decision.
That is how the Implicit Association Test (IAT) works — we are asked to process information quickly and will typically resort to using heuristics to make these timed associations. The time limit works against thinking about diversity among groups and how the individual in question might not fit those stereotypes. Thinking about diverse characteristics among groups requires too much mental energy. Therefore, these shortcuts become our default source of knowledge unless we are directed to examine the situation or person more carefully.
Researchers are divided on how to measure bias. Many researchers and law journal authors like to use the Implicit Association Test (IAT) in experiments measuring bias against a certain group. One of the problems with some of that research is it takes the test taker’s associations and then makes assumptions about how those associations motivate the test taker’s behavior.
This deduction from “associated” to “motivated” is the heart of a controversial matter that has played out (quite messily) across research journals; specifically between two sets of authors.
2. Having a group of diverse thinkers can attenuate bias
Sommers (2006) conducted experimental research in a mock trial paradigm. One of the more interesting findings was that when there were Black people in the deliberating group, the group spent more time discussing case evidence and issues related to racial bias (the defendant was Black). Sommers also found that when race or racism was mentioned by the attorneys during voir dire, people gave lower estimates of guilt on their individual, pre-deliberation verdict forms.
3. All humans have implicit biases. All judges are human. Therefore, all judges have implicit biases.
As much as we hate to admit it, judges do have implicit biases against certain groups. Fortunately, as mentioned earlier, biased associations do not always translate into biased behaviors. There’s a 2017 ABA book aptly titled, “Enhancing Justice: Reducing Bias,” in which the authors examine empirical approaches to measuring and reducing bias. In an insightful chapter titled, “Implicit Bias in Judicial Decision Making: How it Affects Judgments and What Judges Can Do About It,” the authors set out to address the very taboo idea that, simply put, “judges are biased.” The chapter is strong because of its matter-of-fact analysis (and it doesn’t hurt that that one of the authors is a California District Court judge). The best part is that it gives 10 specific suggestions for how judges in particular can prevent their very natural biased associations from becoming biased decisions.
Another 2017 piece written by two professors and an Iowa District Court judge conducted an empirical study using 239 federal and state judges as participants. The judges completed an IAT measuring their associations of Asian, White, Christian, or Jewish Americans with negative or positive traits/keywords.
The judges also gave sentencing recommendations after reading a case where a defendant (either Asian, White, Christian, or Jewish) had pleaded guilty to securities fraud charges. The article is an illuminating exploration into multiple modes of implicit bias and actually ties negative associations (IAT scores) to negative decision making (sentencing recommendations).