By Lee Dryden
The Daily Record Newswire
DETROIT — Whether we admit it or not, we all have biases that come out in subtle — or not so subtle — ways in all aspects of our lives.
The stakes are a bit higher when biases impact decisions in the professional world — especially in the legal arena where people’s futures are decided.
Unconscious bias was the topic of a recent State Bar of Michigan seminar, “Blind Spots: How to Avoid Poor Decisions and Bad Outcomes” in Detroit. The guest speaker was Kimberly Papillon, a California lawyer who lectures throughout the nation on neuroscience and psychology of legal and judicial decision making.
State Bar President Lori A. Buiteweg said it’s a vital topic that needs attention.
“The daily work of lawyers and judges often has a long-term, if not lifelong, effect on the lives of those we serve,” she said. “Being unaware of the signals your brain is picking up on as it makes those decisions can lead to inequitable and even legally erroneous outcomes. In short, to be fair, impartial, and avoid legal error, we need to be aware of our own unconscious biases.”
Evidence shows everyone has unconscious bias and our conscious thought is just the “tip of the iceberg, said Steven L. Winter, a constitutional law professor at Wayne State University Law School.
“Most of what goes on in our minds is not at the level of consciousness,” he said. “The brain processes information out of the body. To be human is to process things in this way.”
The concept of unconscious bias is simply that a person is unaware that bias is impacting decisions.
A section titled, “What is Implicit or Unconscious Bias?” on the American Bar Association website describes the importance of attorneys being aware of their thought processes as “critical to a fair and
representative perception and reality of access to justice and equity.”
Stereotypes are formed by assigning people into categories such as age, race and gender, according to an article by researcher Jerry Kang cited by the ABA.
“Though our shorthand schemas of people may be helpful in some situations, they also can lead to discriminatory behaviors if we are not careful. Given the critical importance of exercising fairness and equality in the court system, lawyers, judges, jurors, and staff should be particularly concerned about identifying such possibilities,” Kang wrote.
Most judges are committed to fairness and would abhor the idea of racial bias in sentencing, but that doesn’t mean they are immune to the problem, Papillon said in a 2013 article for the American Judges Association.
“If a judge has a million minute, consecutive neurophysiologic reactions during a moment in a trial, and if some of those minute reactions are quantitatively or qualitatively different based on whether the defendant is African-American, Latino, Native American, Asian-American, Pacific Islander or Caucasian, then the ultimate outcome of the judge’s decision-making process — the sentence itself — will likely differ as well,” she wrote. “Some defendants will receive more time in prison than others for the same crime, and race will be a determinative component.”
Winter said judges face a unique challenge when tackling this issue as they are in a position of authority with people frequently telling them they are right. This diminishes the chance of being self-reflective, he said.
“I think judges are kind of a special case,” he said.
Stereotypes of defendants in court could extend beyond race to weight or attractiveness, Winter said.
Chippewa County Probate Judge Elizabeth B. Church, who attended the seminar, said she has thought about this issue and was glad to see others doing the same because judges make life-changing decisions.
“As a judge, I don’t want to make mistakes,” said Church, who also handles all district court matters and some circuit court work. “Everyone has preconceived notions. I really have to put those aside.”
Church said judges have to be careful not to bring their problems to work such as fights with spouses or children. As she went through cancer treatment, Church had to be mindful of how it impacted her in court — especially on days she wasn’t feeling well.
“I knew it was affecting my work somewhat,” she said.
Buiteweg said Papillon’s presentation in Detroit had quite an impact as the packed room gave her a standing ovation.
Church said Cheboygan County Probate Judge Robert J. Butts recommended she attend the seminar to which she paid her own way.
“It was an issue I care about so I went and I’m glad I did,” she said.
Wayne County Circuit Court Judge Lawrence S. Talon, said Papillon gave attendees bias tests and access to other tests online.
“I went because I’m not so naïve to think I don’t have unconscious biases and I wanted to know how to be aware of them,” he said.
Talon said Papillon also provided reading material on addressing unconscious bias with jurors by including it in jury instructions.
“It’s the beginning of a conversation,” he said.
Combating unconscious bias extends beyond simply telling yourself you will stop being biased.
“Assuming that judges can simply try harder to be fair, take more time when making decisions, or utilize their egalitarian value systems to eliminate bias in their decision-making process is naïve,” Papillon wrote.
“The solutions should be tailored to the neurophysiologic reactions and the psychological processes that infuse bias into the sentencing decisions. As judges and legislators across the country become more amenable to change, these solutions will be instituted. However, acceptance of the implicit bias, the neuro-scientific correlates, and their role in the sentencing process is the first step.”
Buiteweg added that simply slowing down is a good start.
“It’s about mindfulness,” she said. “It’s about taking the time to slow down your thought processes long enough to ask yourself what exactly you are judging about someone’s appearance, speech, writing, and other identifying factors. It’s about asking yourself whether your decisions are based on objective or subjective information. For every action we take, there is a re-action. By being slow and mindful about our actions, we substantially increase our chances of reaching the best reaction or outcome.”
Winter said direct, diverse experience is the best solution. Having “contrasting experiences” will help unlearn the stereotypes, he said.
Increased diversity in the legal realm would help but it needs to be under “conditions of relative equality” or the stereotypes will be reinforced, Winter said.
Winter said a perfect world solution would be to have judges meet weekly to discuss such matters, but a diverse bench would be needed to be effective.
“The more highly integrated the bench and the bar are, the less chance for stereotypes,” he said. “The most effective way to unlearn them is in a very direct person-to-person way.”
Buiteweg said the topic is “trending.” She said California requires one hour of ongoing mandatory continuing education every three years on recognizing and eliminating bias. She wants to see ongoing discussion using credible, science-based expert data. She said she will make changes in her work based on Papillon’s teachings.
“Among other things, I realized I judge legal writing poorly,” she said. “I think my personal preferences for organization, formatting and style get in the way of hearing the arguments of the writer. It’s similar to ‘active listening.’ I need to set aside my personal preferences (biases) and strive to listen to what the writer is really trying to say. This way, I won’t miss a point in my response or rebuttal and I will do the best possible job for my client.”
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