ABA panel examines impact of implicit bias on judicial system

An unarmed African-American teenager fatally shot multiple times by a police officer, an incident that now has a St. Louis-area suburb up in arms.

A large unarmed African-American man, suspected of selling loose cigarettes on a New York street corner, dies after being placed in a choke hold by a white police officer.

Those are just two recent incidents. No doubt the list could go on and on.

Who's right or wrong in these cases must be determined in a court of law. But even in the judicial system lawyers, judges and jurors - like the law enforcement officers - are faced with having to make gut-wrenching decisions.

Real-life scenarios like these were the topic of discussion by a panel of legal experts during the ABA Judicial Division presentation ". . . and Justice for Some: Unconscious Bias and the Law" on Saturday at the Annual Meeting in Boston.

The fast-paced, round-table dialogue delved into the issues of implicit bias and how it impacts defendants, police officers, prosecutors, defense attorneys and judges.

The audience also was involved, using hand-held technology to cast confidential votes showing their response in similar situations. The panel - moderated by Nancy Gertner, retired federal judge for the United States District Court for the District of Massachusetts - then role-played the scenario to search their own beliefs and provided expert opinion from their legal perspectives.

The panel included Sherrilyn Ifill, president and director-counsel for the NAACP Legal Defense and Educational Fund; Dahlia Lithwick, senior editor/legal correspondent for Slate Magazine; Gregory S. Parks, professor at Wake Forest University School of Law; Jonathan Turley, professor at George Washington University Law School and legal commentator; and Judge Andre M. Davis, U.S. Court of Appeals for the Fourth Circuit.

The panel was convened in Boston almost exactly five years after the July 2009 incident involving Harvard professor Henry Louis Gates Jr., an African American who was arrested on his doorstep for forcing open the jammed front door of his Cambridge, Mass., home.

Implicit bias, panelist Parks noted, is arguably a pervasive issue within the judicial system.

"The fundamental principle behind it is that people make automatic, subconscious associations between categories of people and positive or negative concepts,'' he said. "As such, in the criminal context, blacks are likely to be surveilled, followed, searched, encouraged to plea, get prosecuted, found guilty, sentenced more harshly. The influence of implicit race bias can be seen in the decision making of police, prosecutors, defense attorneys, jurors, and even judges."

In one scenario presented to the panel, you are an African-American parent and your son wants to leave home at dusk and walk to the home of a friend whose family lives in a gated white community. What would you tell your child?

Ifill, an African American, responded by relating the instructions she gives to her teenage nephew every time he goes out into the public.

"When you are stopped, you say 'yes, officer' and 'no, officer.' You do not mouth off. You do not resist, no matter what they do. You do not ask for their names and badge numbers. You do not tell them that your parents are lawyers. You let them search whatever they want. Your job is to come home alive. We will sort out the rest later."

In a second scenario that all of the panelists struggled with, an African-American high school student claimed she was raped by a white football player and an African-American player was also accused. There was no DNA evidence and the players had separate trials. The panel had to decide (if you are the lawyer or the parent) whether to advise your African-American client or child to plead "guilty" and get an 18-month jail sentence even though he vigorously maintains his innocence. As the parent, or as defense counsel, do you press him to take the deal (knowing how a jury may see a large, imposing young black man)?

The audience also wrestled with its decision of whether to tell the teen to accept the plea deal, voting 39 percent generally/probably no; 26 percent absolutely no; 25 percent generally/probably yes; and 10 percent definitely yes.

"In the context of the justice system, and in particular the criminal justice system, is when those of us who are decision makers judges, jurors, police officers are not aware that some of the decisions we are making are rooted not in the facts of the particular case, not in data but in our beliefs that are derived from years and years of experience,'' said Davis.

"This is why this program is so important to do. To call out to judges in particular, but also lawyers, to say to them that we know you are doing the best that you can. But in fact there is some stuff going on beneath the surface in your subconscious that you need to be aware of, and you can't address it or confront it unless we have training that is rooted in the well regard social science that lets us know that we really need to be attentive to our decision-making progress."

Published: Wed, Aug 13, 2014