The Road to Race and Implicit Bias Eradication
by Hon. Kenneth V. Desmond, Jr.
Voice of the Judiciary
Throughout the past several decades, State and Federal appellate courts have candidly acknowledged the implicit biases of litigants and jurors. Although social science research has found that judges are just as susceptible to unconscious bias as the rest of the population, the paucity of case law acknowledging judicial bias underscores the need for introspection. Since confronting subconscious attitudes and stereotypes is challenging for many, the process of eradicating the influence of race and implicit bias on the Massachusetts judicial system is likely to take many years. Chinese philosopher Lao-Tzu said “the journey of a thousand miles begins with one step.” With that in mind, the Trial Court recently took the first step of its “thousand mile journey” to eliminate the influence of implicit bias by establishing the Departmental Race and Implicit Bias Advisory Committee.
The Committee was formed in response to feedback from attendees of the September 2015 All Court Conference on Race and Implicit Bias. According to Chief Justice Ralph Gants, the decision to hold the All Court Conference was prompted by recent events in Ferguson, New York, Baltimore, and Cleveland that “raised important questions about the intersection of race and justice in our country.” The Supreme Judicial Court recognized the value of examining the court’s role in “addressing race as it affects the pursuit of justice,” and “resolved to open a dialogue among Massachusetts judges” to consider the way implicit bias impacts the Commonwealth’s courts. The subsequent formation of the Committee was a way for the Trial Court to continue that dialogue at the departmental level.
In the most basic sense, implicit bias is “thoughts about other people you didn’t know you had.” Consequently, it is often difficult for individuals who do not fall victim to the impact of certain biases to identify the ways they are manifested. Within the Trial Court, however, implicit racial, cultural, gender and other biases have opportunities to exhibit themselves in myriad ways.
Implicit racial bias, for example, can manifest in the form of erroneous assumptions that a person of color is not a judge, attorney, or officer of the court. Implicit racial bias may also explain the disparity between the number of non-Hispanic whites and persons of color given the opportunity to participate in Drug Court, which offers offenders an opportunity for rehabilitation instead of incarceration. Indeed, while non-Hispanic whites in Massachusetts use illicit substances at slightly higher rates than members of racial and ethnic minorities, incarceration rates for distribution offenses that do not carry mandatory minimum sentences are six times higher for persons who identify as black. Juveniles are not exempt from the subconscious biases that fuel these trends. Of all the youths arrested for weapons offenses in 2010, white youths were arrested at approximately double the rate of black youths. However, of all the youths that were held in custody for weapons offenses, black youths comprised 52% while white youths represented a mere 16%.
Implicit cultural biases can lead Trial Court staff members to erroneous conclusions about a constituent’s demeanor. A judge or clerk interpreting a lack of eye contact as representative of disinterest may be less patient with a litigant who avoids eye contact than a judge or clerk who knows that in many cultures, eye contact is a sign of disrespect. Implicit gender biases have the potential to impact the outcome of familial disputes, such as the distribution of assets in a divorce or the likelihood of a male obtaining a protective order from an abusive partner as compared to the chances of a female requesting one on the same basis. One study found that 65% of transgender Massachusetts residents had experienced discrimination in an area of public accommodation. Discriminatory, or even preferential treatment may also arise from implicit biases concerning sexual preference, age, weight, disability, and religion, among others.
By way of the Committee, the Trial Court seeks to create a system that embraces and understands all people regardless of their identity. The Committee is comprised of Chief Justice Paula Carey and Court Administrator Harry Spence as well as one or more individuals (mostly judges) from each Trial Court Department who have been appointed by their respective chief justices. Committee members are charged with initiating a dialogue about implicit bias within their department and encouraging others to get involved with the effort to help all Trial Court staff members recognize that an egalitarian judicial system is the only way to build and promote public confidence and trust that the Trial Court will administer justice impartially to everyone that it serves.
The Committee recognizes that the implicit associations we hold “do not necessarily align with our declared beliefs,” and seeks to implement checks and balances that give Trial court staff members pause before they make a decision. Already, the Committee has created bench cards to be distributed all Trial Court justices and clerks that encourage them to engage in “more deliberative, effortful processing” when making a decision, and thereby discourage low-effort decision-making that relies on intuition informed by stereotypes or prejudice.
The Committee also understands that exposure to stigmatized group members “can help individuals negate stereotypes . . . and ‘unlearn’ the associations that underlie implicit bias.” Accordingly, the Committee intends to identify and encourage the use of diverse recruiting resources, and advance staff members’ cultural awareness through workshops and other forms of training. This fall, the Committee plans to introduce a resource bank on the Trial Court’s intranet to ensure that the materials distributed at these trainings are accessible to all. To create a judicial system that is user-friendly for everyone, the Committee also plans to assess the experiences of Trial Court users through surveys and focus groups, and is considering the implementation of educational opportunities for pro se litigants who are struggling to comply with their legal obligations.
If you are interested in assessing your own implicit biases, Harvard University’s Project Implicit has free online tests available that allow you to assess subconscious preferences based on race, gender, and sexuality, among others.
Chief Justice Paula Carey recognizes that “issues related to race, bias and power are among the most difficult to confront, discuss and address since they are embedded in an organization’s structures and practices, they are often invisible to many, and they prompt defensive reactions.” She believes that taking these issues on will be “a challenging journey but well worth the effort.”
Judge Kenneth V. Desmond, Jr. has served on the Massachusetts Judiciary for eleven years. He was appointed to the Massachusetts Superior Court in December 2012 and prior to that served on the Boston Municipal Court. He is a Trustee of the Flaschner Judicial Institute and Chair of the Trial Court’s Departmental Race and Implicit Bias Advisory Committee. Judge Desmond is a graduate of Tufts University and Boston College Law School.