Judge Bernice Donald
Judges, as with most others associated with the legal system, are firmly committed to equal justice under law. We strive to administer justice fairly and impartially without regard to race, gender, religious belief, socioeconomic status, sexual orientation or any other arbitrary characteristic.
Unfortunately, in looking at justice outcomes, it appears that bias — generally implicit bias — may act as a barrier to objective and unprejudiced justice.
Implicit biases are attitudes or stereotypes that affect our understanding, comprehension, decisions and actions — including inferences and conclusions — in an unconscious manner. Implicit biases are activated involuntarily, without awareness, intention or control. They "can be either positive or negative, and everyone is susceptible," according to a publication by the Kirwan Institute for the Study of Race and Ethnicity.[1]
We all have these biases, and they manifest very early in life. In her groundbreaking book, "Biased: Uncovering the Hidden Prejudice That Shapes What We See, Think, and Do," Jennifer Eberhardt tells the story of her five-year-old son exhibiting his implicit bias by way of unconsciously associating a black man with crime.
Through science, we have now come to understand that implicit biases are pervasive and pose a real barrier to the fair and impartial administration of justice. What makes these biases especially dangerous is that they can go undetected because they are often in conflict with our stated and explicit beliefs.[2] Interestingly enough, "[o]ur implicit biases are the result of mental associations that have formed by the direct and indirect messaging we receive, often about different groups of people," as stated in the Kirwan Institute study.[3]
We receive messages from our culture, family, group interactions, news media, entertainment media, personal encounters, general experiences and literature, among others, many of which are rooted in our country's fraught history.[4] Over our life experiences, some stereotypes are confirmed or reinforced, and many may become deeply embedded and automatically activated. All of us are products of our lived experiences; consequently, our implicit or unconscious biases are part of being human.
Because judges' actions, speech and decisions can markedly affect people's lives, we must staunchly guard against allowing bias to infect the judicial process. Research on implicit bias reveals that we are most vulnerable in areas where we have the greatest discretion. This reality poses special risks for judges because the decisional process is partially based on the exercise of discretion, within the confines of statutes, rules, precedents and fact-finding.
In deciding what the facts are and interpreting and applying the applicable law, judges make decisions through the lens of lived experiences. Even though some might bristle at the thought of lived experiences influencing the decisional process, how else could anyone otherwise explain two judges reading the same black-letter law and coming away with vastly different interpretations — which happens quite frequently?
Many of our biases are rooted in hard-wired stereotypes. These stereotypes operate as deeply embedded shortcuts used to categorize members of certain groups. They typically are fixed and rigid and can be positive or negative. However useful mental shortcuts may be in helping us to navigate the complexities of life, they also can be harbingers of bias and inequality, and ultimately may deprive people of life, liberty and property unjustly.
In bail decisions, for example, courts decide whether to allow the accused to be released on bail, and, if so, what the amount of the bail will be. Vast racial disparities in bailed releases and detentions raise questions about the nature and extent of bias that may be at play in those decisions.[5]
Many courts are now turning to predictive algorithms to try, among other things, to reduce or eliminate disparities. Yet courts must be cautious about overreliance on technology, as such technology may itself have embedded biases that unjustly skew outcomes.
In civil matters, attitudes and beliefs about worth often are revealed in damages awards that reflect race- and class-based discrepancies.
In my early years as a federal trial judge, I presided over a housing discrimination case where an African American family had been the victim of housing discrimination and had suffered damages as a result. The jury found for the plaintiffs as to liability but awarded damages of $1, notwithstanding evidence of greater monetary damages. I can only surmise that the jury did not find the individual plaintiffs worthy of real damages.
Consider, too, the seemingly more benign example of a plaintiff who files a complaint, the sufficiency of which is challenged by a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). That rule provides that the complaint may be dismissed if the plaintiff has not set forth factual allegations that state a plausible claim for relief.
In reviewing the complaint, the court must determine whether the stated facts, giving all favorable inferences to the plaintiff, would entitle the plaintiff to relief. This subjective standard could be influenced favorably or unfavorably by unconscious bias. The same is true in the case of summary judgment motions, where the judge is required, under Federal Rule of Civil Procedure 56, to determine the existence or nonexistence of a genuine dispute as to a material fact.
Employment cases provide especially fertile grounds for unconscious bias to affect inferences and decisions. Because such cases so often deal directly with race, gender, age, disability, religion, sexual orientation and gender identity, they require us to constantly self-audit to ensure that we do not allow implicit bias to impermissibly influence outcomes. In Price Waterhouse v. Hopkins, for example, bias was expressed in the form of sex stereotyping. The U.S. Supreme Court in its 1989 decision admonished that such stereotyping is impermissible.
We see the potential for bias in jury selection where the presumption is that African Americans are going to be favorably disposed to African American plaintiffs in civil matters and African American defendants in criminal matters. The unstated other side of that presumption is the notion that white jurors can be impartial regardless of race.
Peremptory challenges allow these biases to be perpetuated. Judges must take an active role in monitoring the jury selection process to make certain that the dictates of the Supreme Court's 1986 ruling in Batson v. Kentucky are followed. There, the court established that peremptory challenges made on account of race are unconstitutional.
Yet if judges do not allow lawyers to play a more active and meaningful role in the voir dire process, we may undermine Batson and otherwise deny defendants a fair trial.
Take as an example an instance where I presided over a felony drug trial. I conducted a preliminary voir dire, which was followed immediately by the prosecutor's voir dire. When the prosecutor concluded, the federal defender strode to the well of the courtroom, looked at the venire, and asked the following question: "How many of you know what a drug dealer looks like? Raise your hand if you know."
All members of the venire dutifully raised their hands. Clearly, they were reacting to embedded stereotypes.
Without confronting such stereotypes, it is difficult to honor the constitutional guarantee of a fair trial. Unconscious biases may impede the fair trial process. Judges must strive to prevent them from doing so.
Unconscious biases also may interfere when judges decide the admissibility or nonadmissibility of evidence. Deciding appropriate use of evidence under Federal Rule of Evidence 404 is particularly susceptible to the influence of implicit bias because we instruct laypeople to use evidence for specific purposes and not for others.
Judges must therefore consider how bias and stereotypes may affect the jury's consumption of that instruction and try to provide appropriate safeguards. In fact-finding or making credibility determinations, we must consider the possibility of favorable in-group biases and unfavorable outgroup biases, to ensure that they do not affect the process.
But what can judges do about these prevalent issues?
First, judges can become bias literate. We can educate ourselves on the science of implicit bias and areas where it manifests. One option, which I recommend, is to take the implicit association test to ascertain the risk of taking certain actions based on unconscious bias.
Second, judges must become self-aware by engaging in self-audits to determine disparities in the sentences of people with similarly situated offenses and convictions. For example, African American men constitute approximately 6% of the U.S. adult population but are approximately 35% of the prison population. African American men are also incarcerated at a rate of six times that of white males and receive longer sentences than their white male counterparts.
In 2010, the U.S. Sentencing Commission reported that in federal courts for 2008 and 2009, the average sentence for whites was 55 months while the average sentence for African Americans was 90 months. Individual judges must adopt accountability procedures to reduce racial disparities in sentencing and must examine the role of bias, if any, in the sentencing process.
Third, judges should hold support staff and criminal justice agencies — such as pretrial and probation — accountable and must call out disparate prosecutorial actions where applicable. It would be significantly advantageous for judges to keep statistics on case dispositions and perform the functions necessary to gather specific information about the individuals before them.
Fourth, judges must become aware of and acknowledge the power and influence of the stereotypes that we hold. We should increase diversity in social and professional groups and activities. We need to become adept at empathy and perspective taking, and we should remain conscious of the role that structural racism and history play in disparities in today's criminal legal system.
Finally, judges must increase diversity in our chambers and support staff in order to gain the understanding and perspective that come from different viewpoints. Without taking meaningful steps to diversify our chambers, judges will be confined to our own experiences, which will allow implicit biases to persist. Such diversification will inevitably ensure that the legal system does not continue to produce unwarranted adverse effects and give all individuals the opportunity to achieve equal — and unbiased — justice.
Martin Luther King Jr. once stated that "the arc of the moral universe is long, but it bends towards justice." That arc does not bend on its own; it bends only when all stakeholders, including judges, apply the force necessary to move it in the right direction.
Professor Sarah Redfield and I co-chair the Implicit Bias Initiative of the American Bar Association's Criminal Justice Section. Through presentations, trainings and articles, we continue to strive to bend the arc toward equal justice.
Bernice B. Donald is a U.S. circuit judge for the U.S. Court of Appeals for the Sixth Circuit. She was nominated by President Barack Obama and joined the court in 2011. She was a contributor to the 2018 book, "Enhancing Justice: Reducing Bias," published by the ABA.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio Media Inc. or any of its respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Cheryl Staats, et al., State of the Science: Implicit Bias Review, Kirwan Institute for the Study of Race and Ethnicity, 2017, http://kirwaninstitute.osu.edu/implicit-bias-training/resources/2017-implicit-bias-review.pdf.
[2] See Judge Mark W. Bennett,Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. & Pol'y Rev. 149 (2010).
[3] Cheryl Staats, et al., State of the Science: Implicit Bias Review, Kirwan Institute for the Study of Race and Ethnicity, 2016, http://kirwaninstitute.osu.edu/wp-content/uploads/2016/07/implicit-bias-2016.pdf.
[4] See, e.g., Isabel Wilkerson, Caste: The Origins of Our Discontents 47-48 (Random House 2020) ("It is a measure of how long enslavement lasted in the United States that the year 2022 marks the first year that the United States will have been an independent nation for as long as slavery lasted on its soil. No current day adult will be alive in the year in which African Americans as a group will have been free for as long as they had been enslaved. That will not come until the year 2111.").
[5] See generally, e.g., The Bail Project: 2019 Annual Report, available at https://bailproject.org/wp-content/uploads/2019/12/TBP_Annual_Report_2019.pdf.