IMPLICIT BIAS IN THE COURTROOM: THEORETICAL PROBLEMS AND CONCRETE SOLUTIONS
MARCH 3, 2011
The problems of overt discrimination have received an enormous amount of attention from lawyers, judges, and policy-makers. While explicit sexism, racism, and other forms of bias still exist, they have become less prominent and public as compared to earlier periods of our shared history. But explicit bias and overt discrimination are only part of the problem. Perhaps equally important are questions surrounding implicit bias -- stereotypes or attitudes that affect our behavior, our understanding, and the decisions that we make, without our even realizing it.
How prevalent and significant are these implicit, unintentional biases? Over the past decade, cognitive and social psychologists have discovered novel ways to measure their existence. A growing body of research strongly suggests that they are pervasive, large in magnitude, and have substantial real-world effects. These fascinating discoveries, which have migrated from the science journals into the law reviews and popular media, are beginning to reshape fundamental understandings of discrimination and fairness.
Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What if anything should we do about implicit bias in the courtroom? How concerned should we be that judges, advocates, and jurors are coming to the table with implicit biases that influence how they interpret evidence, understand the facts, and make judgment calls? In what circumstances are these risks most acute? Are there practical ways to reduce the effects of implicit biases? To what extent can awareness of these biases mitigate against their impact? What other 'debiasing' strategies might work? The 2nd annual symposium of PULSE: Program on Understanding Law, Science, and Evidence at UCLA School of Law takes up these pressing questions in an exciting one-day symposium.
Bringing together leading scientists (including Anthony Greenwald, the inventor of the Implicit Association Test), federal and state judges, judicial educators, and legal academics, the Symposium will explore the scientific state-of-the-art regarding implicit bias research and examine the various institutional responses to date. The Symposium will also raise possibilities and complications, ranging from the theoretical to practical, from the legal to the scientific. The ultimate goal of this one-day event is to identify areas of consensus and dissensus so as to identify concrete solutions and next steps for researchers, educators, lawmakers, and the judiciary. Our central goals are to better understand this phenomenon and the potential risks it poses to justice, and to explore what practical and institutional steps can be taken to minimize implicit bias in the courtroom.
9:00 – 9:10 A.M.
Welcome & Introduction by Dean's Office
Kirk Stark, Vice Dean, UCLA, Law
9:15 – 9:30 A.M.
Implicit Bias and the Courts — Substantive Framing and Introduction
Jerry Kang, Co-Director PULSE, UCLA, Law
9:30 – 11:00 A.M.
State of the Science – Implicit Biases / in the Courtroom. This panel will share and present findings from psychology about how biases, including but not limited to implicit biases measured through reaction-time instruments, may influence the courtroom and related judicial institutions. This panel will provide attendees with a state-of-the-art description of the predictive and ecological validities of various bias measures, with careful exposition of which theories, mechanisms, and findings enjoy which sorts of scientific “consensus.”
- Nilanjana Dasgupta, U. Mass Amherst, Psychology
- Justin Levinson, U. Hawaii, Law
- Anthony Greenwald, U. Washington, Psychology
Moderator: Phillip Atiba Goff, UCLA, Psychology
11:20 A.M. – 1:00 P.M.
State of the Field — Institutional Responses So Far. This panel will focus on the various ways in which legal institutions, including the judiciary and legal procedures, have responded to the emerging evidence of implicit biases. Judicial educators, judges, and academics will describe and assess what has been done, and to what effect– given various economic, political, and scientific constraints.
- David Faigman, UC Hastings, Law
- Pam Casey, National Center on State Courts
- Dist. Court Judge Mark Bennett, N.D. Iowa
- Judge Michael Linfield, LA Superior Court
Moderator: Ingrid Eagly, UCLA, Law
2:20 – 4:00 P.M.
Possibilities and Complications: Theoretical and Practical, Legal and Scientific. The morning panels will have brought the audience up to speed on the state of the art. This panel pulls back the lens to explore the various theoretical possibilities and practical complications connected to measuring biases, measuring their consequences, and implementing potential debiasing strategies. Both legal and scientific complexities will be addressed.
- Rachel Godsil, Seton Hall Law
- Jeffrey Rachlinski, Cornell, Law
- Devon Carbado, UCLA, Law
- Jerry Kang, UCLA, Law
Moderator: Jennifer Mnookin, UCLA, Law
4:30 – 6:00 P.M.
Back to Reality — Roundtable Discussion: Concrete Solutions and Next Steps. The last panel will bring back all the panelists for a final robust, interdisciplinary, and unscripted conversation about the challenges and opportunities highlighted throughout the day. What can and should be done now? What research agenda will provide the knowledge necessary to lessen the impact of implicit bias within the courtroom and the judiciary? What forces, besides the scientific merits, might drive the conversation and debate?
Moderator: Jerry Kang, UCLA, Law