Step by Step: How the Legal System is Trying to Tackle Explicit and Implicit Bias

In the 2019 series of student blog posts for Legal Problem Solving, students are digging into the American Bar Association's 2016 Report on the Future of Legal Services to explore how far we've come in 2019 and what remains to do in the innovation of legal services delivery.

Currently, it seems that almost every workplace and academic institution in the United States provides conscious (“explicit”) and unconscious (“implicit”) bias training for its employees. Given the ever-increasing diversity within the United States and the unequal treatment of minorities in this country, these trainings are vital.

To understand how both explicit and implicit biases can affect our society, one can look to the legal profession as a prime example. In the United States, the legal system is controlled predominantly by white males, and, as a result, clients and attorneys that are members of minority groups typically have to confront a variety of biases, prejudices, and racist actions.

In this post, I will first describe the terms “explicit bias” and “implicit bias” and then show how these attitudes can affect minorities in the legal system. Second, I will describe the ideas proposed by members of the legal community from 2005 to 2016 to address such biases, specifically implicit bias. Lastly, I will describe some of the new ideas proposed by members of the legal community since 2016 to address these biases.

“‘Explicit bias' refers to the attitudes and beliefs we have about a person or group on a conscious level.” These attitudes are most visible when one believes that he or she is threatened by another. If an individual deems their fear to be valid, they may try to justify their resulting prejudice.

To analyze an example of explicit bias in the legal system, imagine that a Muslim-American is on trial for a robbery. The white, male prosecutor tells the jury, “Witnesses at the site of the crime claimed that the thief wore some sort of head wrap, very similar to the turban that the defendant is wearing today. Plus, you all should remember that Muslims have a long-standing reputation for robbery in this city.” This statement shows that the prosecutor is using Islamophobia to stoke fear in the minds of the jurors, and he goes so far as to insinuate that the defendant is guilty because of his head garb and stereotypes about Muslims in that area.

Currently, explicit biases do not seem to pose as big of a threat as they once did due to anti-discrimination laws and legal professionals’ willingness to combat such blatant prejudices. Implicit biases, however, present a more complex problem for legal professionals to combat.

“‘Implicit bias’ refers to the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.” Unlike explicit biases, implicit biases arise involuntarily without a person’s intent. These biases reside in one’s subconscious and cause a person to have attitudes, feelings, and beliefs toward another based on race, ethnicity, age, appearance, religion, etc. Implicit biases typically develop at a very young age through direct and indirect messages from family, friends, school, media, etc.

To analyze how implicit biases can affect people in the legal system, consider a situation where a white attorney has an introductory meeting with a potential client. The client is a young, black woman who lives in a predominantly poor, black neighborhood. During the meeting, the attorney shows the client a legal complaint and states, “Don’t worry about trying to scan through this. I can read it for you; it’s a bit complicated.” Subconsciously, the attorney here assumes that the client cannot read the complaint because of her race and the area where she is from––a clear example of implicit bias.

Biases in the legal system can come from any of the four key players in a court of law: the judge, the prosecutor/plaintiff’s counsel, the jury, and other court personnel. Biases coming from any of these players may be due to differences in race, ethnicity, language, age, gender, or culture. In an attempt to quell such biases, legal professionals have undertaken several programs and initiatives since the mid-2000s. Some of the more notable programs that have addressed biases in the courtroom are (1) the American Bar Association (“ABA”) Perceptions of Justice Project, (2) Vera Institute’s Prosecution and Racial Justice Program, (3) the ABA Implicit Bias Initiative, and (4) the ABA Diversity and Inclusion 360 Commission. It is important to note that most of these programs focus on the eradication of implicit bias within the legal system.

In 2008, the ABA Judicial Division Lawyers Conference created the Perceptions of Justice Project, an effort to enable citizens to voice their perceptions of and experiences with the justice system. Sessions were held in various cities across the country and either took the form of a town hall or an expert panel. Some of the prominent themes discussed during these sessions include the following:

1. the unfair treatment of minority individuals by the justice system, 
2. the need for greater diversity on the bench, 
3. the need for more community outreach and civic education about court operations, 
4. logistical difficulties of implementing impartial justice, and
5. the need for sensitivity training amongst judges, court personnel, and the police.

Established in 2005, Vera Institute’s Prosecution and Racial Justice Program (“PRJ”) was created to work with prosecutor’s offices around the nation to reduce the impact of racial bias in the criminal justice system. Specifically, the PRJ published a guidebook in 2014 that displays data showing that prosecutors’ policies, procedures, and daily practices can have disproportionate negative effects on communities of color. The hope is that if prosecutors evaluate such data, then they will be more likely to take steps to identify institutional factors that lead to racial outcomes and implement corrective actions where needed.

In 2011, the ABA Section of Litigation formed an Implicit Bias Task Force in order to create a presentation to teach members of the legal community about implicit biases. The presentation includes (1) an introduction to the concepts of implicit bias and explicit bias, (2) exercises to recognize implicit bias, and (3) techniques to debias perceptions.

In 2016, former ABA President Paulette Brown created the ABA Diversity and Inclusion 360 Commission to make policy and standards to advance diversity and inclusion. The Commission made a recommendation for the ABA House of Delegates to adopt Resolution 107, a rule that requires courts and bar associations to adopt programs that promote education about diversity and explicit and implicit biases. Specifically, this rule imposes mandatory or minimum continuing legal education (“MCLE”) requirements that include (1) programs regarding diversity and inclusion in the legal profession and (2) programs focusing on the elimination of bias in the legal profession.

Since 2016, there have been more local and national proposals to debias the legal system. Specifically, the following subsections discuss proposals by the California Legislature, the ABA, and Attorney Stanley P. Williams. Similar to most of the programs mentioned in the previous section, the following programs and ideas narrowly focus on implicit biases in the legal system.

The Joint Committee on Fighting Implicit Bias was created to continue the efforts of the Perceptions of Justice Project by encouraging courts, judges, lawyers, academics, and community groups to promote citizen understanding and support of the justice system while also improving the administration of justice for all citizens. More specifically, this Committee will publish a book detailing how members of the legal community can jointly fight implicit bias within the legal system.

On October 2, 2019, the “B.I.A.S. Act” was approved by the Governor of California. This Act, which stands for Breaking Implicit Attitudes and Stereotypes in the Justice System, will require California lawyers, judges, and court personnel to complete an implicit bias training every two years. Court personnel must complete the course by January 2022, and lawyers will have to complete it by January 2023.

This move should not come as a surprise as California is known to be a liberal state and is already expanding its existing training about implicit bias. The bill states that the Legislature intends to completely remove “biased-based injustice” in the courtroom. While a complete removal of biases in California’s justice system is a lofty goal, this bill may prompt more states to adopt similar legislation.

In 2018, California Deputy District Attorney Stanley Williams published a law journal article proposing a new “double-blind” trial system that could help to remove significant implicit biases in the trial process. According to Williams, while the evidence in these trials would still be visible to the usual players in court, the defendant’s identity would be concealed from both the judge and jurors. As a result, the judge and jury’s biases are less likely to be triggered since they would not be exposed to a defendant’s appearance, race, accent, age, gender, etc. In this system, the defendant would still be able to remotely communicate with his or her counsel and see the jury and witnesses via a two-way closed-circuit television.

Some of the admitted drawbacks to this approach are that (1) there may be charges or defenses raised that require the mention of a defendant’s cultural or racial characteristics, and (2) factors such as circumstantial evidence, witness testimony, and crime scenes may suggest a defendant’s cultural or racial background. While these drawbacks are legitimate, Williams asserts that it is not realistic to expect a complete removal of bias in the criminal justice system. Since this plan takes a huge step forward regarding the fair administration of justice in trials, it deserves serious consideration by courts.

Bias within the legal system is a systemic issue that must be addressed by a coalition of actors in and outside of the legal profession. In particular, implicit bias seems to be the most pervasive type of bias that is infecting the legal community. To date, there have been numerous endeavors by the ABA, state legislatures, attorneys, and nonprofit organizations to address this issue. While these initiatives show commitment by some to make the legal system work equally for all, there is still much more work to be done. A significant reduction of bias in the legal system is more likely to occur if there is a united effort by the federal government, state governments, and legal professionals to address the issue.