Implicit Bias and the Negative Implications it has on the Legal System

In the United States there are numerous protests and movements, such as the Black Lives Matter movement, that seeks to address and combat systematic racism. However, some social psychologists believe that there may be a more inherent reason for these inexcusable actions by police officers and state actors. These psychologists dive into the idea that maybe these actions are not always the result of an individual’s explicit racial beliefs but instead actions stemmed from unidentified implicit biases.

Research on implicit bias is still fairly new and it primarily focuses on the belief that it is possible and highly likely that an individual can act in prejudicial ways without realizing that this undetected bias is the contributing factor to their decisions. This type of bias affects an individual on an inherent level. One can go about their life without realizing the existence of these biases and that can make for some life altering decisions.

Implicit Association Test

Social psychologists have found a way to identify these unconscious biases through an Implicit Association Test, or IAT. The IAT can be administered in two ways: either through a computer-based test or in paper form. The computer-based test is considered to be the most effective since it allows for individuals to take the test without any outside influences affecting the test taker.

Harvard University launched an online test that was created by Project Implicit, which aims to show test takers the extent of their own implicit biases. The reason behind Project Implicit is to show individuals their own attitudes and beliefs on subjects such as race, age, and gender that they are unable to identify for themselves. The race test, in particular, requires the test taker to associate pictures of unidentified African Americans and “pleasant” words and pictures of unidentified European Americans and “unpleasant” words, then later on switches the two pairings. If an individual can pair the first set faster and with a greater accuracy than the second pair, then this could show a stronger preference for African Americans over European Americans. These preferences can result in biased decision making.

In the United States, police departments are starting to understand the importance of identifying these biases especially in the wake of movements speaking out against the unequal treatment of minorities. Not only do these trainings focus in on identifying the existence of these biases, but also in understanding why they exist and finding ways to overcome one’s own bias. Police departments and police academies nationwide have slowly implemented these trainings in an effort to open up a healthy dialogue about implicit bias. It’s not hard to see why police officers should be required to go through these trainings but the next logical step would be to require these trainings for prosecutors as well. 

Implicit Bias and How it Affects the Legal Profession

Prosecutors, like everyone else, are not immune to implicit bias. They have a career that requires them to follow the law and make unbiased decisions in compliance to that law. Prosecutors have “the most unreviewable discretion than any other actor in the criminal justice system.” According to the American Bar Association, a prosecutor must exercise sound discretion in the performance of his or her functions. However, there is stark empirical evidence that shows that individuals that commit the same crime and have the same criminal records are treated differently depending on their race.

Prosecutors take the elements of the case at hand and make a vast number of decisions based on the suspect and the crime committed. Prosecutors decide things such as whether or not to charge an arrested individual with a crime, whether or not to oppose bail, and whether or not to offer a plea-bargain. These decisions are not small and can affect an individual’s life immensely. The government should be looking at ways to make sure that these decisions are as unbiased as possible.

Ways To Address and Combat Implicit Bias in the Legal Field

In 2016, the Department of Justice mandated implicit bias training for all of its law enforcement agents and prosecutors. According to the Department of Justice, “these new trainings, based on the latest social science research and best practices in law enforcement, will begin across the department [in 2016].” These trainings that the Department of Justice has implemented consists of three parts. They include reviewing the latest science and research on implicit bias, examining the extent on how implicit bias can affect policing and prosecutorial decisions and lastly, participating in an interactive session allowing the employees to discuss their biases openly and honestly. The implementation of these training in the federal government is a great start in addressing these biases.

Once the trainings have been completed for all prosecutors and agents under the Department of Justice, the next step would be to require these trainings for all attorneys. According to Deputy Attorney General Sally Yates, “implicit bias also presents unique challenges, because it can alter where investigators and prosecutors look for evidence and how they analyze it without their awareness.”

As of 2017, there are only two jurisdictions in the United States, California and Minnesota, that require licensed attorneys to participate in trainings specifically on the elimination of bias. These trainings need to reach all jurisdictions to ensure that attorneys are doing the best job of making impartial and fair decisions.

Another way to combat this problem is to require prosecutors to keep files and demographics of their cases and documenting each step of the charging process to look back on and review the decisions they made. This would allow prosecutors to review their own work and work out the reasons for making such decisions while also keeping them accountable. While these steps may take a few years to implement, they are effective ways for attorneys to remain accountable and impartial in their legal profession.

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