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49 Ct. Rev. 64 (2013)
Addressing Implicit Bias in the Courts

handle is hein.journals/ctrev49 and id is 64 raw text is: Addressing Implicit Bias in the Courts Fairness is a fundamental tenet of American courts. Yet, despite substantial work by state courts to address issues of racial and ethnic fairness,2 public skepticism that racial and ethnic minorities receive consistently fair and equal treatment in American courts remains widespread.3 Why? THE INFLUENCE OF IMPLICIT ASSOCIATIONS Perhaps one explanation may be found in an emerging body of research on implicit cognition. During the last two decades, new assessment methods and technologies in the fields of social science and neuroscience have advanced research on brain functions, providing a glimpse into what National Public Radio science correspondent Shankar Vedantam refers to as the hidden brain.4 Although in its early stages, this research is helping scientists understand how the brain takes in, sorts, synthesizes, and responds to the enormous amount of infor- mation an individual faces on a daily basis.5 It also is provid- ing intriguing insights into how and why individuals develop stereotypes and biases, often without even knowing they exist. The research indicates that an individual's brain learns over time how to distinguish different objects (e.g., a chair or desk) based on features of the objects that coalesce into patterns. These patterns or schemas help the brain efficiently recognize objects encountered in the environment. What is interesting is that these patterns also operate at the social level. Over time, the brain learns to sort people into certain groups (e.g., male or female, young or old) based on combinations of characteristics as well. The problem is when the brain automatically associ- ates certain characteristics with specific groups that are not accurate for all the individuals in the group (e.g., elderly indi- viduals are frail). Scientists refer to these automatic associa- tions as implicit-they operate behind-the-scenes without the individual's awareness. Scientists have developed a variety of methods to measure these implicit attitudes about different groups, but the most common measure used is reaction time (e.g., the Implicit Association Test, or IAT).6 The idea behind these types of mea- sures is that individuals will react faster to two stimuli that are strongly associated (e.g., elderly and frail) than to two stimuli that are less strongly associated (e.g., elderly and robust). In the case of race, scientists have found that most European Americans who have taken the test are faster at pairing a white face with a good word (e.g., honest) and a black face with a bad word (e.g., violent) than the other way around. For African- Footnotes 1. The Open Society Institute, the State Justice Institute, and the National Center for State Courts funded the preparation of this article. The views expressed are those of the authors and do not necessarily reflect the views of the funding organizations. This article summarizes the National Center for State Courts' project on implicit bias and judicial education. For the full report of the project, see PAMELA M. CASEY, ROGER K. WARREN, FRED L. CHEESMAN 11 & JENNIFER K. ELEK, HELPING COURTS ADDRESS IMPLICIT BIAS: RESOURCES FOR EDUCATION (2012) (hereinafter HELPING COURTS), available at http://www.ncsc.org/-/media/Files/PDF/ Topics/Gender%20and%2ORacial%2oFairness/IB report_033012. ashx. 2. Various state-court reports of racial fairness task forces and com- missions can be found through the National Center for State Courts' website at http://www.ncsconline.org/Projects Initiatives/ REFI/SearchState.asp. To access the National Center for State Courts' Interactive Database of State Programs to address race and ethnic fairness in the courts, go to http://www.ncsconline.org /DResearch/ref/programs.asp. 3. For example, a 1999 a national survey of public attitudes about state courts that found 47% of Americans surveyed did not believe that African-Americans and Latinos receive equal treatment in America's state courts, 55% did not believe that non-English- speaking persons receive equal treatment, and more than two- thirds of African-Americans thought that African-Americans received worse treatment than others in court. See NATIONAL CENTER FOR STATE COURTS, HOW THE PUBLIC VIEWS THE STATE COURTS: A 1999 NATIONAL SURVEY (1999), available at http://www.ncsconline.org/WC/Publications/ResAmtPTCPublic ViewCrtsPub.pdf. State surveys, such as the public-opinion sur- vey commissioned by the California Administrative Office of the Courts, report similar findings: A majority of all California respondents stated that African-Americans and Latinos usually receive less favorable results in court than others, approximately two-thirds believed that non-English speakers receive less favor- able results, and, a much higher proportion of African-Americans, 87%, thought that African-Americans receive unequal treatment. See David B. Rottman, Trust and Confidence in the California Courts: A Survey of the Public and Attorneys (2005), available at http://contentdm.ncsconline.org/cgi-in/showfile.exe?CISO- ROOT=/ ctcomm&CISOPTR=25. 4. See SHANKAR VEDANTAM, THE HIDDEN BRAIN: How OUR UNCONSCIOUS MINDS ELECT PRESIDENTS, CONTROL MARKETS, WAGE WARS, AND SAVE OUR LIVES (2010). 5. Social-science research on implicit stereotypes, attitudes, and bias has accumulated across several decades into a compelling body of knowledge and continues to be a robust area of inquiry, but the research is not without its critics. See HELPING COURTS, supra note 1, Appendix B (What Are the Key Criticisms of Implicit Bias Research?). There is much that scientists do not yet know. This article and the full report on which it is based are offered as a start- ing point for courts interested in exploring implicit bias and potential remedies, with the understanding that advances in tech- nology and neuroscience promise continued refinement of knowl- edge about implicit bias and its effects on decision making and behavior. 6. See HELPING COURTS, supra note 1, Appendix B (How Is Implicit Bias Measured), for more information on measures of implicit bias. 64 Court Review - Volume 49 I Pamela M. Casey, Roger K. Warren, Fred L. Cheesman, & Jennifer K. Elek'

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