Dueling Judges: Jurors Should Be Free From “Judicial Immunization” For “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 Richard G. Kopf of the District of Nebraska and Senior Judge Mark W. Bennett of the Northern District of Iowa to debate: “Should judges address the issue of ‘implicit bias’ with jurors?” This is Judge Kopf’s argument:
Perhaps the “biggest thing” in social psychology for the last 10 years or so has been research related to “implicit bias.”* That is, (1) testing the thesis that we all have unrecognized or subconscious biases against other people, and (2) if you are clever enough, you can discern the particular bias and then ameliorate it.**
Judge Mark Bennett, my dear friend and colleague, who is also a highly respected scholar, is a true believer in the concept of “implicit bias.” He strongly advocates for active judicial intervention when dealing with jurors so that jurors become aware of their implicit biases and guard against them. See, e.g., 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, Harvard Law & Policy Review, Vol. 4, p. 149 (2010). I respectfully, but strongly, disagree with Judge Bennett. Trial judges should mostly stay out of the “implicit bias” business.
Before addressing my objections, I need to do two things. I should (1) very generally describe the testing method that scholars have used to determine the existence of “implicit bias,” and (2) then describe how Judge Bennett inoculates jurors–in criminal cases–from that “disease.”*** Briefly, very briefly, I next provide some context about these points–after all, this is a blog post!
The academic concept of implicit bias” flows from the Implicit Association Test (IAT) geared to race.**** Here is a description of the race test:
The Implicit Association Test compares millisecond reaction-time differences in a test taker’s responses to varying combinations of stimuli. If the test taker reacts more quickly to some groups of stimuli than to others (for example, pictures of white faces paired with pleasant words versus pictures of black faces paired with the same pleasant words), then the test taker is assumed to have stronger associations with those stimuli or the stimuli are said to be more congruent with the test taker’s unconscious attitudes (for example, a test taker who reacts more quickly to white faces paired with pleasant words would be said to be unconsciously biased in favor of whites and against blacks).*****
Philip E. Tetlock, Gregory Mitchell, and L. Jason Anastasopoulos, Detecting and Punishing Unconscious Bias, The Journal of Legal Studies, University of Chicago (January 2013).
Judge Bennett is convinced that white people, who comprise the great bulk of his jurors and mine, hold unconscious biases against people of color. If you believe the results from administration of the IAT, he is on solid ground. See, e.g., Chris Mooney, Wonk Blog, Across America, whites are biased and they don’t even know it, Washington Post (December 8, 2014).
Judge Bennett is not shy about confronting prospective white jurors. For example, he may show a video produced by the Urban Alliance on Race Relations. The video shows a black man, while the screen runs a criminal history sheet, and then the video reveals that the man pictured in the video was the arresting officer. See here.
The judge will then engage in his own voir dire that is explicitly designed to be impactful to the jury about race and the video the jury has just seen. After that, he gets very specific about his own concerns. Here is an abbreviated sample of his voir dire script:
After watching the “never judge” Michael Conrad video where I stop it at the end of the “rap sheet” before the rest of the video is played: What do you think of the person pictured in the video? Why? After playing the rest of the video: Were you surprised to find out the image if the person in the video was the arresting officer? [I ask this of jurors whose facial expressions demonstrate obvious surprise] Why? When you think of the term arresting officer what race of an officer to you think of? Why? Can you see how gut feelings can lead to false impressions? Can you see how stereotypes can lead to false impressions? Can you see how generalizations can lead to false impressions? Is it important to keep an open mind until you have heard and seen all of the evidence? Why?
. . .
I want each of you to know that I am worried whether Mr. Rodriguez, as the only Hispanic in the courtroom, is able to receive the fairest trial possible
-what can you tell us to assure that this will happen? Do you have any concerns about Mr. Rodriguez’s ability to receive a fair trial?
Perhaps the most unusual aspect of the judge’s approach to “implicit bias” is his requirement that each juror certify the following on the verdict form:
By signing below, each juror certifies the following:
(1) that consideration of the defendant’s race, color, religious beliefs, national origin, or sex was not involved in reaching the juror’s individual decision, and
(2) that the individual juror would have returned the same verdict for or against the defendant on the charged offense regardless of the defendant’s race, color, religious beliefs, national origin, or sex. [Bold in original]
I now turn to my criticisms. To keep this post to a readable length, I will limit myself to just a few of my objections. And, I intend to be brief.
First, the premise of Mark’s efforts, while obviously well-intentioned, is based upon questionable science. The IAT has been heavily criticized by serious scholars:
Our primary concern is, however, with the way a small number of studies are being used to make strong claims in applied settings, including courtrooms (see Feuss & Sosna, 2007). Although one might quibble over a particular reanalysis or the implications of a specific outlier, the broad picture that emerges from our reanalysis is that the published results are likely to be conditional and fragile and do not permit broad conclusions about the prevalence of discriminatory tendencies in American society. Given the paucity of studies showing strong links between IAT scores and behavior, given our inability to gain access to published data sets, and given the weakness of the data that we did obtain, psychologists and legal scholars do not have evidentiary warrant to claim that the race IAT can accurately or reliably diagnose anyone’s likelihood of engaging in discriminatory behavior, less still that there is substantial evidence of such linkages (contra Greenwald & Krieger, 2006). [Underlines by Kopf.]
Hart Blanton, Jonathan Klick, Gregory Mitchell, James Jaccard, Barbara Mellers, Barbara Mellers, Philip E. Tetlock, Strong Claims and Weak Evidence: Reassessing the Predictive Validity of the IAT, Journal of Applied Psychology (2009). See also Oswald FL, Mitchell G, Blanton H, Jaccard J, Tetlock PE, Predicting ethnic and racial discrimination: a meta-analysis of IAT criterion studies, J Pers Soc Psychol (August, 2013) (“IATs were poor predictors of every criterion category other than brain activity, and the IATs performed no better than simple explicit measures. These results have important implications for the construct validity of IATs, for competing theories of prejudice and attitude-behavior relations, and for measuring and modeling prejudice and discrimination.”).
Second, I have no doubt that evolution has taught us to discriminate between friend and foe based upon instantly assessing otherwise innocent cues (skin color for example******). But there is very little evidence for trials, which are inherently methodical, tedious and relatively long, that those ancient shortcuts motivate decisions based upon hours or days of deliberation by real jurors based upon jury instructions dedicated to prodding the rational mind. That is, 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.
Third, who is to say when an “implied bias” warrants overt actions like those taken by Judge Bennett? According to one study of the results of the administration of the IAT, both black women and white women are “biased” against fat people. See here. Should fat defendants get special handling? This “implicit bias” business puts judges into a swamp from which judges may never get out once they walk into that primordial muck.
Let’s take, for example, a counterterrorism case. Research has shown that “liberals supported use of the technology to detect unconscious racism but not unconscious anti-Americanism, whereas conservatives showed the reverse pattern . . .”. Detecting and Punishing Unconscious Bias, supra, at 1. In our hypothetical counterterrorism case, shouldn’t the intellectually honest but active “implicit bias” judge demand a certification from jurors that their verdict of acquittal was not driven by a dislike of the government?
Finally, I am completely creeped out by a United States District Judge consciously manipulating the supposedly unconscious minds of jurors. I am truly frightened by such authoritarianism dressed up in the guise of justice. But, I concede that may just be me. After all, I took the race IAT and here is what the computer told me: “Your data suggest a moderate automatic preference for White people over Black people.”
* In this context, the word “bias” properly understood is not a “bias” at all. Social psychologists who care about being precise prefer to describe what they are researching as an “association,” which is “implicit” meaning a subconscious association. Thus, I prefer “implicit association” rather than “implicit bias.” The distinction is important both as an academic matter and a policy matter. However, for this post, I will not quibble with wording.
** For an in-depth introduction, see Teige-Mocigemba, SKlauer, KC Sherman, JW, A practical guide to Implicit Association Tests and related tasks, University of California Davis (June 1, 2016).
*** Judge Bennett was kind enough to share with me some of his practices, procedures and forms. I trust Judge Bennett will correct me if my description is too far off base.
****You can take the various (see below) tests here.
*****There are numerous tests for different subject matter areas: Gender – Science. This IAT often reveals a relative link between liberal arts and females and between science and males; Race IAT; Race (‘Black – White’ IAT) This IAT requires the ability to distinguish faces of European and African origin. It indicates that most Americans have an automatic preference for white over black; Skin-tone IAT; Skin-tone (‘Light Skin – Dark Skin’ IAT) This IAT requires the ability to recognize light and dark-skinned faces. It often reveals an automatic preference for light-skin relative to dark-skin; Age IAT; Age (‘Young – Old’ IAT). This IAT requires the ability to distinguish old from young faces. This test often indicates that Americans have automatic preference for young over old; Weight IAT Weight (‘Fat – Thin’ IAT). This IAT requires the ability to distinguish faces of people who are obese and people who are thin. It often reveals an automatic preference for thin people relative to fat people; Presidents IAT Presidents (‘Presidential Popularity’ IAT). This IAT requires the ability to recognize photos of Barack Obama and one or more previous presidents; Arab-Muslim IAT Arab-Muslim (‘Arab Muslim – Other People’ IAT). This IAT requires the ability to distinguish names that are likely to belong to Arab-Muslims versus people of other nationalities or religions; Disability IAT Disability (‘Disabled – Abled’ IAT). This IAT requires the ability to recognize symbols representing abled and disabled individuals. Asian IAT Asian American (‘Asian – European American’ IAT). This IAT requires the ability to recognize White and Asian-American faces, and images of places that are either American or Foreign in origin; Weapons IAT Weapons (‘Weapons – Harmless Objects’ IAT). This IAT requires the ability to recognize White and Black faces, and images of weapons or harmless objects; Sexuality IAT Sexuality (‘Gay – Straight’ IAT). This IAT requires the ability to distinguish words and symbols representing gay and straight people. It often reveals an automatic preference for straight relative to gay people; Gender-Career IAT Gender – Career. This IAT often reveals a relative link between family and females and between career and males; Native IAT Native American (‘Native – White American’ IAT). This IAT requires the ability to recognize White and Native American faces in either classic or modern dress, and the names of places that are either American or Foreign in origin.
****** I agree with Judge Bennett that we all are “hard-wired” to instantaneously distinguish between “us” and “them.” My hunch is that this truism is an artifact of evolution. See also Karin Brulliard, Eek, a snake! Humans may be hard-wired to spot serpents — and fast, Washington Post (November 10, 2016). But my hunch is also that humans are “hard wired” to be empathetic. See, e.g., Line Goguen-Hughes, Survival of the Kindest, Mindful (December 23, 2010) (“In 1871, eleven years before his death, Charles Darwin published what has been called his ‘greatest unread book, ‘The Descent of Man and Selection in Relation to Sex’. . .. In the fourth chapter, entitled ‘Comparison of the Mental Powers of Man and the Lower Animals,’ Darwin explained the origin of what he called ‘sympathy” [which today would be termed empathy, altruism, or compassion], describing how humans and other animals come to the aid of others in distress.”).