facebook-pixel

Commentary: Bias in law enforcement in a complicated matter

Al Hartmann | The Salt Lake Tribune Prosecutor Tim Taylor makes his opening arguments in during the trial of Marc Sessions Jenson and Stephen R. Jenson in Salt Lake City on Wednesday, January 14, 2015. The Jenson brothers are charged with defrauding investors in a luxury ski resort near Beaver, Utah.

Racial disparities in criminal justice outcomes. Mass incarceration. What are the causes? Bigotry? Individual responsibility? Systemic discrimination?

In my view, the answers are complex and historical; they speak to who we are as humans today and the systems we have created to solve social problems. One important cause we can all understand and address is something called implicit bias.

Implicit bias occurs when we make decisions that unknowingly rely on our implicit associations, the subconscious assumptions or stereotypes we all hold. Implicit associations are a result of two things: 1) our brains are hardwired to use shortcuts to make the many decisions required of us each day, and 2) we live in a particular time, place and culture.

When we rely on implicit and inaccurate associations (like the stereotype that Asians are good at math), it can distort our decision-making, resulting in unintentionally biased decisions. Research suggests it happens to us all and may affect us even when our intentions are laudable, when believe we are acting fairly. Sadly, none of us are immune.

Although the presence of implicit associations commonly leads to biased results, it need not. Through awareness and effort, it is possible to avoid these negative decision effects.

When it comes to solving implicit bias, blame is not the answer. Blame leads to defensiveness. Instead, eliminating implicit bias is about holding ourselves to a higher standard of openness, self-awareness, and reflectiveness – one that calls us to think deeply about our actions, even when we are well intentioned. Well-intentioned actions can have unintended consequences.

In the criminal justice system, the stakes are high. People’s lives and liberties are at risk, as are our capacities to contribute productively to society. Twenty years ago, when I staffed the Judicial Council’s Task Force on Racial and Ethnic Fairness in the Legal System, our research focused on (explicit) bias and the perception of bias. I knew nothing of implicit bias then. Perhaps, like Jessica Miller’s recent Salt Lake Tribune article on racial disparity in Utah’s prison population, some may have expected the effort to assign blame.

If blame will not solve implicit bias, then what? We can seek for our criminal justice officials – police, attorneys, judges, correctional staff, parole board members, policymakers and more – to take this human problem seriously. We can advocate for training and accurate data about the impact of decisions. We can urge officials to follow best practices to reduce the negative effects.

The Judicial Performance Evaluation Commission, JPEC, occupies one small corner of the justice system. The decisions it makes are admittedly much narrower in scope than those faced by a police officer responding to a domestic violence call or a judge deciding a criminal sentence. Nevertheless, JPEC affects the criminal justice system.

JPEC evaluates the performance of judges and recommends to voters whether a judge should continue to serve (https://judges.utah.gov/). Since 2016, it has worked to minimize the potential influence of implicit bias in judicial evaluations. In collaboration with several groups, the Commission brought in a nationally recognized trainer to raise awareness and focus commissioners on practice-based reforms:

· Commissioners now assess judicial performance without knowing the identity of the judge, something called “blind review.” By removing name, gender, race and location, commissioners must focus strictly on the evaluation data before them.

· JPEC engaged experts to redesign survey instruments. Revisions help focus respondents on the judge’s recent behaviors and not their reputation.

· JPEC modified its review of judges to help commissioners slow down during their deliberations and focus on the data collected.

These changes are just a start; JPEC is not “done” with implicit bias. Awareness is an ever-present, humbling, and formidable challenge.

What I have learned is that reducing implicit bias is about taking responsibility rather than assigning blame.

We need to motivate that taking of responsibility on the street, in government offices, courtrooms, treatment facilities, and policy-making venues. Self-awareness, especially efforts to surface subconscious assumptions, occurs in environments that provide honest, accurate feedback and reward positive behavior change. Humans must feel safe enough to dare to improve.

To address disparities in the criminal justice system, officials need to be leaders: to grow in awareness of our vulnerability to implicit bias and to enact positive policy solutions that demonstrate what should be our system’s deep and uncompromising commitment to fairness.

Jennifer Yim, Salt Lake City, is the executive director of the Judicial Performance Evaluation Commission. To learn more about your own implicit associations, see:

https://implicit.harvard.edu/implicit/takeatest.html