Unconscious bias impact focus of ISBA presentation

During her presentations to new judges and magistrates, Floyd Superior Judge Maria Granger raises a troubling question — is justice really blind?

An individual’s upbringing, attitudes and experiences can seep into the subconscious and create biases which can influence decisions. The most troubling aspect is that this implicit bias is often subtle and the individual is unaware that it is coloring his or her decision making and behavior.

Granger

This type of unconscious bias among lawyers and judges can diminish the fairness in the system and possibly raise the blindfold on justice.

“I don’t know if it is something we can completely erase in ourselves, but it is something that we can work on as legal professionals to keep out of the courtroom and decision making,” Granger said.

Judges, attorneys, law students and paralegals will have the opportunity to learn more and explore their own implicit biases at a special continuing legal education class as part of the 2015 Annual Meeting of the Indiana State Bar Association.

Kimberly Papillon, a California attorney and expert in the area of implicit bias, will be presenting her program, The Neuroscience of Legal and Judicial Decision Making. Her three-hour interactive session will explore the things that can unconsciously interfere with how an individual makes decisions. She will offer tools that legal professionals can use to interrupt their unconscious thinking patterns.

“I think it’s fascinating,” Laura Paul said of the subject of implicit bias.

Paul, an Indianapolis defense attorney and chair of the ISBA criminal justice section, is particularly impressed that Papillon uses scientifically based research. The science provides a logical, rational explanation for why individuals make the decisions they do. And, Paul believes, once a person, say a legal professional, understands how the unconscious mind works, then that attorney or judge might be able to make decisions that result in a fairer judicial system.

The ISBA’s diversity committee and criminal justice section are sponsoring Papillon’s presentation. Paul said all legal professionals, not just criminal justice attorneys, can benefit from the CLE with Papillon.

Woven into pop culture

People who value fairness the most, Papillon said, usually have the most difficulty when they learn of their unconscious stereotyping and prejudices. She emphasized these are well-meaning, good people who teach their children to be open-minded but, like everyone, they struggle with what is happening in the background.

Having a brain reaction and perceiving an individual or group as a threat is our nature, Papillon said, bringing up the nature versus nurture debate. But, she continued, who we find threatening is nurture.

This nurturing comes through a variety of things like pop culture, books and teachers.

As an example, she pointed to TV and movies which starting in the 1970s began having the villains speak with an aristocratic British accent. Later came the villains’ sidekicks who had an African American Ebonics accent or a Hispanic accent.

This phenomenon is on display in the popular Disney movie, “The Lion King.” Scar, the evil brother, is portrayed by British actor Jeremy Irons speaking with his native accent. Two of his accomplices are the hyenas Shenzi and Banzai, voiced by Whoopi Goldberg and Cheech Marin respectively.

Over time, encountering these portrayals and stereotypes leads to bias. In the courtroom, the unconscious views could manifest themselves by charging certain defendants with more serious crimes or imposing harsher sentences. For civil plaintiffs, implicit bias may make an attorney less likely to see a viable case as winnable which results in less legal representation for certain groups of people.

Indiana courtrooms

The Indiana Judicial Center has conducted several training sessions on implicit bias for judges and other judicial officers, as well as court staff and juvenile justice advocates.

Bower

Elkhart Superior Judge Steve Bowers developed and facilitated a webinar on unconscious bias for his judicial colleagues across the state. Bowers became interested in the subject after his son gave him Daniel Kahneman’s book “Thinking, Fast and Slow.”

Bower noted bias can creep unknowingly into any judge’s decisions. Even though they want to be rational in their considerations, they can still unwittingly be influenced by prejudices.

“I’m human and just because somebody gave me a black robe doesn’t make me any less susceptible to human failings,” Bowers said.

In particular, Bowers pointed out that someone who has been in court before will have a record that has been built over time. Each arrest or conviction could have been colored by the bias of a law enforcement officer or another judge. So when the judge adjudicating the most recent offense reviews the record, that judge could be influenced by more problematic decision making than his or her own.

When Granger opens her presentations, she asks the participants, “Who brought their bias today?” Typically, she is the only one who raises her hand.

Participants can get defensive as they realize they harbor unpleasant notions about others. Judges do not want to make flawed decisions, Granger said. By the end of the presentation they feel a little better, but they know the work is not done. They have to practice and exercise against bias every day, Granger said.

Likewise, Papillon will give participants in her session at the ISBA tools to reduce their level of bias by raising the awareness. People are bringing implicit bias into their decision making not because they are bad, she said, but because they have no idea their brain is doing this.•