A panel of experts gathered during the American Bar Association annual meeting in Boston recently for a discussion on unconscious bias and the law.
The 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 U.S. 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 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.”
He said the influence of implicit race bias “can be seen in the decision making of police, prosecutors, defense attorneys, jurors, and even judges.”
Ifill, an African American, offered 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.”
It was important to realize, said Davis, that many decision makers, such as judges, jurors and 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.
“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,” he said. “But in fact there is some stuff going on beneath the surface in your subconscious that you need to be aware of...”
Davis said training was necessary “that lets us know that we really need to be attentive to our decision-making progress.”
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