Dueling Judges: A Judge’s Duty To Deal With Implicit Bias
November 16, 2016 (Fault Lines) — Ed. Note: In light of the concern about the impact of racial bias in the criminal justice system, we have “so ordered” Senior Judge Mark W. Bennett of the Northern District of Iowa and Senior Judge Richard G. Kopf of the District of Nebraska to debate: “Should judges address the issue of ‘implicit bias’ with jurors?” This is Judge Bennett’s argument:
I have immense admiration and respect for my dear friend, Judge Richard Kopf. He is on my top 5 list of best federal trial judges in the nation. That’s even after I “creep” him out, allegedly engage in “consciously manipulating” jurors, and elevate “authoritarianism” over “justice.” Judge Kopf is brilliant, hard-working, transparent, outspoken, and puts devotion to the rule of law over his personal legal views in his decisions. His ruling in the partial birth abortion case was likely at odds with his personal views, and knowingly cost him his probable elevation to the Eighth Circuit Court of Appeals—a position he naturally aspired to from his clerking days. He is that principled and has that kind of unsurpassed integrity.
So much for the love fest because, respectfully, Judge Kopf is seriously under-informed, misinformed, and misguided in his truncated views of implicit bias and my decision to both discuss it with, and instruct jurors about it.
He is right about a few things in his post. I am a “true believer,” and I have discussed with and instructed jurors about implicit bias for more than 8 years in every civil and criminal trial in five jurisdictions spanning from the Middle District of Florida to the District Court for the Northern Mariana Islands. I might add, all without a single objection by a party—including governmental entities, from municipalities to the federal, AUSA’s, and some of the most powerful corporate entities in the world.
Judge Kopf claims “… if we look at actual behaviors such as serving as an actual juror in a real case, there is precious little reason to believe that ‘implied bias’ is at work.” He is partially correct that, in Noble Prize winning Daniel Kahneman’s lingo from Thinking Fast and Slow, there is less concern about implicit bias in System II thinking (long deliberations) than in System I thinking (fast thinking, like the first impression of a criminal defendant), but he is incorrect in stating “there is precious little reason to believe that ‘implied bias’ is at work.”
Indeed, in the only two studies of mock jurors evaluating ambiguous evidence or in misremembering facts, implicit bias strongly and negatively influenced jurors on the outcome of the case for a minority defendant.* More importantly, studies have consistently shown that white jurors find minority defendants “more guilty” on the same evidence than white defendants, and are less able to give them the them the full benefit of the presumption of innocence.**
Judge Kopf writes:
Judge Bennett is convinced that white people, who comprise the great bulk of his jurors and mine, hold unconscious implicit biases against people of color.
Almost right. I would add “most” to the white people—hundreds of studies indicate over 80%, but many people of color also have race-based implicit biases. Many folks of every race, including females, have strong gender implicit biases. The same is true about religion and many other categories that give rise to significant cultural stereotypes—often salient features in cases before us.
Judge Kopf, engages in serious misdirection—shifty running quarterback, Tommy Armstrong, of his beloved hometown Nebraska Cornhuskers, could learn a thing or two. The first, most obvious misdirection, is a critical, and fatal reasoning flaw that comes very early in Judge Kopf’s analysis when he claims: “The academic concept of implicit bias flows from the Implicit Association Test (IAT).” Judge Kopf’s understanding of implicit bias is backward. The IAT purports to measure implicit bias. It is a tool, nothing more. To claim that the psychological cognitive bias, implicit bias, flows from the tool of the IAT is like claiming that planet Mars comes from the telescope that first sighted it, or that cancer cells come from the first microscope that identified them.
Setting aside this flaw, Judge Kopf’s primary, if not sole, criticism of implicit bias is his sincere concern about the validity and reliability of the IAT. He correctly cites two studies by Professor Philip E. Tedlock, and co-authors, that are critical of the IAT. I have read everything Professor Tedlock has written criticizing the IAT. I applaud Tedlock, and his co-authors, for adding their 2 cents worth to this important debate.
However, one should put Tedlock’s views in the context of the broader cognitive psychological community of scholars. The fact is, there are substantially more members of the Flat Earth Society than there are believers in Tedlock’s views on the IAT. The world may be flat and Tedlock may be right, but I’m not buying it. Tedlock may be the next Professor Elizabeth Loftus, who single handedly uncloaked the pseudo-science of “repressed memories” by exposing and proving it to be a complete fraud. However, I would not bet 2 cents on that happening. Tedlock’s views are widely rejected by thousands of social and cognitive psychologists, neuro-psychologists, legal scholars, and other implicit bias scholars who do empirical work about implicit bias. Tedlock is in such a finite minority of implicit bias thinkers, I bet he sends Judge Kopf a birthday present for citing his work on this blog.
Each person should decide for themselves whether the IAT is a valid and reliable test. I have done my own ongoing due diligence starting nearly a decade ago: reading over 600 scientific journal articles; spending on average 5 hours per week (before and after business hours) reading new scholarly articles; conducting my own national empirical research of state and federal judges and lawyers; publishing four law review articles on the subject with three more in the works; and spending countless hours of in-depth discussions with a dozen or so of the leading implicit bias scholars in the world.
Based on these cumulative efforts, I respectfully disagree with both Tedlock and Judge Kopf. Explaining why would take an entire law review article and then some—this is a blog post. In sum, I firmly believe the IAT is both valid and reliable as a general tool. It is important to recognize that I entered the implicit bias discussion as a complete skeptic, even more skeptical than Judge Kopf. However, my due diligence—which pales in comparison to Judge Kopf’s (tongue firmly in cheek) —changed that.
Let’s assume that both Tedlock and Judge Kopf are right about the IAT. That fact is irrelevant to this discussion. Not only is it irrelevant, it is a world record red herring. I discuss implicit bias with jurors because, more than a century of social science research establishes, beyond all doubt: ingroup favoritism and outgroup hostility; deeply rooted stereotyping of Blacks and other minorities with dark skin with violence and dangerousness going back to slavery; studies demonstrating how stereotyping works and its prevalence; dozens of fMRI studies of facial recognition demonstrating dramatically increased amygdala activity when viewing black faces (our brain’s fear center); and unconscious bias by most whites against most people of color and vice versa, but in different ratios. These findings are what prompted a recent heading in an amicus brief filed in the Supreme Court earlier this year in Buck v. Davis: There Is Deeply Rooted In Our History, Indelibly Stamped in Our Psyche, And Stubbornly Present In Our Culture A Cruel And Dehumanizing Stereotype That Black People Are Uniquely Violent And Dangerous.***
I have never suggested that the IAT can pass a Daubert analysis, that jurors should be required to take one (as some scholars have), or that an IAT test can predict specific future or past behavior. The IAT test is simply what got me interested in implicit bias. I would instruct jurors about implicit bias even if the IAT had never been invented based on my current knowledge of the subject.
Interestingly, Judge Kopf fails to challenge the language I use to instruct jurors on implicit bias:
“As we discussed in jury selection, everyone, including me, has feelings, assumptions, perceptions, fears, and stereotypes, that is, “implicit biases,” that we may not be aware of. These hidden thoughts can impact what we see and hear, how we remember what we see and hear, and how we make important decisions. Because you are making very important decisions in this case, I strongly encourage you to evaluate the evidence carefully and to resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases.”
I am unsure what is “authoritarian,” “consciously manipulating,” “creepy,” or even slightly objectionable about this language. Moreover, the State of California adopted my instruction with only slight variations to it years ago. The ABA is promoting the idea that judges should discuss and instruct on implicit bias with jurors. Despite my “creepiness” and “authoritarianism,” hundreds of state and federal judges have requested my instructions and the videos I show to introduce the discussion of implicit bias to potential jurors. The District of Washington is developing a training video on implicit bias for prospective jurors.
Judge Kopf writes, “In our hypothetical counterterrorism case, shouldn’t the active ‘implicit bias’ judge demand a certification from jurors that their verdict was not driven by a dislike of the government?” I would do that, but in the same way I always do it, by discussing with potential jurors if they have any negative feelings about the federal government. If some do, we would discuss those feeling and I would inquire if those feelings could possibly impact their verdict. If the government wanted a certification, I would likely give one.
The value of the certification shown to prospective jurors at the end of jury selection is that, when they learn they are required to sign their name to it, often one or two express difficulty. For example, I had potential juror a few months ago with a minority defendant on trial. The prospective juror said: “Now that I know I would have to sign my name to it, I don’t think I could. I know my mother would turn over in her grave but I would be more willing to convict the defendant simply because he is Hispanic. I know that’s not right but that’s how I feel.” I thanked him profusely for serving his country this way and politely excused him with the parties’ consent and thanks. The certification doesn’t root out implicit bias, but it does help with explicit biases. The line between the two is often blurry. It is an important part of my “authoritarian” toolkit and passion for rooting out biases of all kinds in potential jurors—which is was my job.
I was momentarily offended and bristled at Judge Kopf’s notion that, by discussing and instructing jurors on subconscious bias, I was authoritarian and subverting justice (I forgave Judge Kopf because that is what friends do, and I love a good pot stirrer). And I do apologize for “frightening” my dear friend. I suspect Judge Kopf should be more frightened by the fact that the only two empirical studies that have given judges IAT tests confirm that judges have greater implicit biases than members of the public. **** If the IAT was as invalid as Judge Kopf implies why would there be a statistical difference between judges and the general public – twice confirmed in unrelated and independent studies with different cohorts of judges?
We see authoritarianism as differently as we understand implicit bias. Intuitively, I suspect it is the authoritarian judge types versus the egalitarian judge types that generally oppose discussing and instructing on implicit bias. Specifically, if there is not a model jury instruction on it, an authoritarian judge isn’t going to use it given it lacks the official imprimatur of the powers that be.*****
Here’s what scares and creeps me out: judges who blindly follow DOJ sentencing recommendations: judges, even after Booker and Gaul, who are wedded to the Sentencing Guidelines (deeply flawed from their inception) and fail to fairly apply the §3553(a) sentencing factors; judges who sleep at night after imposing crack/powder sentences at the 100:1 ratio when there is not a shred of empirical evidence to support that grave injustice; judges, for example, who accept the 30+ specific offense characteristics in the fraud guideline without critical scrutiny, or fail to request the government to put on any evidence they can muster that any of the Guideline SOC’s scored are empirically based—because they are not.
I respectfully suggest that blind adherence to the Sentencing Guidelines, which are not empirically based, when it comes to the federal criminal justice system, is a much greater marker of authoritarianism than discussing implicit biases with jurors. Judges who engage in the above sentencing practices are neither better nor worse than judges who are more “progressive,” for lack of a better term, but they are more status quo oriented and, thus, in my view, less likely to embrace implicit bias.
I suspect that my instructing on implicit bias has not caused a single offender to serve an extra day in prison. Judge Kopf, I doubt you can say the same thing about judges who engage in the above described sentencing practices. Isn’t it more likely true that judges with a heavy dose of authoritarianism are far less likely to discuss or instruct on implicit biases?
One final point. I recently conducted a national study of federal judges and their blind spot biases and published the results in an upcoming article in the Yale L. J. Forum. I noted that Justice Anthony Kennedy recently penned an excellent definition of the cognitive blind spot bias in judges, without naming it, when he wrote about the unconstitutional failure of a state supreme court justice to recuse himself in a criminal case: “Bias is easy to attribute to others and difficult to discern in oneself.”****** Senior federal district court judges have a statistically stronger blind spot bias than active district court judges and a much stronger blind spot bias than federal magistrate judges, bankruptcy judges and members of the general public. Now this is something to be fearful about.
I thank Judge Kopf for raising these important questions and for his unfailing commitment through his extraordinary openness to discuss difficult issues to enhance our system of justice.
* Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 Duke L.J. 345 (2007); Justin D. Levinson & Danielle Young, Different Shades Of Bias: Skin Tone, Implicit Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. 307 (2010).
** Justin D. Levinson, Huajian Cai & Danielle Young, Guilty By Implicit Bias: The Guilty/Not Guilty Implicit Association Test, 8 Ohio St. J. Crim. L. 187 (2010). (The study established that there is implicit racial bias in being able to give black defendants the same benefit of the presumption of innocence that white defendants receive. Specifically, study participants held implicit associations between black and guilty as compared with white and not guilty.)
*** Brief for the National Black Students Assoc. as Amici Curiae In Support of Petitioner, Buck v. Davis, 2016 WL 4073688, at *xx (No. 15-8049) (July 29, 2016 U.S.).
**** Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 Notre Dame L. Rev. 1195 (2009) and Justin D. Levinson, Mark W. Bennett & Koichi Hioki, Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes 69 Fla. L. Rev. (forthcoming January 2017)
***** I served on the Eighth Circuit’s Model Jury Instruction committee for a decade, but resigned because I never used the model instructions and couldn’t move the committee in the direction of the plain English bullet point jury instructions I use.
****** Williams v. Pennsylvania, 136 S. Ct.1899, 1905 (2016). See my article Mark W. Bennett, Implicit Racial Bias in Sentencing: The Next Frontier, 126 Yale L.J. Forum (forthcoming 2017), you can find it pre-publication on SSRN.