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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

May 30, 2011

Racial Bias and Judicial Decisions

Racial bias and prejudice should have no place in a judicial decision. How good are judges at excluding this pernicious tendency from their deliberations? Researchers attempted to evaluate this question.[i]

These researchers explain that two types of potential bias exist can exist in the courtroom. The first is explicit bias which is bias that people are aware of and sometimes openly acknowledge. With cultural change, explicit bias has decreased and is certainly unacceptable within the judiciary.

The second type of bias is implicit bias which is bias that one may not be aware of and that operates at the unconscious level. Various techniques have been designed to measure implicit bias. One such technique is the Implicit Association Test (IAT) which measures the association between a race and words such as good/bad. (For several such tests see for example, )

The Rachlinski study showed the judges who were tested (from various geographical locations around the U.S.) had a strong white preference on the IAT test. The black judges showed no strong racial preference.

These researchers that attempted to discover whether measures of strong white preference in the IAT impact judicial decision making. The judges were asked to make judicial decisions involving the criminal justice system in three different cases. These questions involved a determination of the guilt of the individual as well as the appropriate disposition. The judges were primed to understand the race of the defendant. The results of this test showed that the judges’ decisions, on the average, were not affected with the race of the defendant.

However, the researchers discovered that judges who had a white preference in the IAT test gave higher sentences to black defendants and judges who had a black preference in the IAT test gave higher sentences to white defendants.

These researchers came to the following conclusions. “First, judges, like the rest of us, carry implicit biases concerning race. Second, these implicit biases can affect judges’ judgment, at least in context where judges are unaware of a need to monitor their decisions for racial bias. Third, and conversely, when judges are aware of a need to monitor their own responses for the influence of implicit racial biases, are motivated to suppress that bias, they appear able to do so.”[ii]

A judicial decision (or any decision within the criminal justice system) should never be affected by racial bias. Those of us in within the justice system must never tolerate explicit bias, and must be alert to, and guard against, implicit bias. The research would indicate if we are aware of our biases, and are committed to an unbiased decision, we have a reasonable likelihood at being successful in making unbiased decisions.

[i] Rachlinski, Jeffrey J., Sheri Lynn Johnson, Andrew J. Wistrich, and Chris Guthrie, 2009, Notre Dame Law Review, Vol. 84:3 pp. 1195-1246

[ii] Ibid, p. 1221

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

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