If our justice system is fair and just for all, why is there a consistent disparity in the sentencing of some groups compared to others? Throughout our nation’s history, we’ve regularly seen individuals of color, specifically African American males, jailed and sentenced at a higher and harsher rate than their peers.
For example, according to a 2019 study from The Sentencing Project, Black men are six times as likely to be incarcerated as white men, and Latinos are 2.5 times as likely.
This estimate is based on data from 2001. Data source: Bureau of Justice Statistics.
While thinkers have advanced countless theories to explain this discrepancy, it’s wise to consider whether members of the judiciary have the tools they need to make sure their decisions are fair and just.
What is implicit bias?
According to the Perception Institute, thoughts and feelings are “implicit” if we’re unaware of them or mistaken about their nature. We have a bias when, rather than being neutral, we have a preference for (or aversion to) a person or group of people. Thus, we use the term “implicit bias” to describe when we have attitudes toward people or associate stereotypes with them without our conscious knowledge.
While the term “implicit bias” can make us defensive, we all have implicit biases. To move past them, however, we must first recognize that we possess these biases and then develop ways to interrupt them when they arise.
(Want to dive deeper into the impact of implicit bias in the judiciary and greater legal profession? Check out our free online CLE: Rebalance the Scales: Implicit, Bias, Diversity and the Legal Profession.)
Addressing implicit bias in the judiciary
Our legal and judicial systems are dedicated to fairness and justice, regardless of our biases.
In Illinois, our courts and judges have created educational tools, resources, and trainings to support judges in understanding and disrupting possible biases so they can render fair judgments.
Since December 2018, Dr. Andrea Miller, a clinical assistant professor of psychology at the University of Illinois Urbana-Champaign and a senior court research associate at the National Center for State Courts, and Judge Joseph G. McGraw of the 17th Judicial Circuit have conducted a deliberative decision-making training at Illinois’ biennial Judicial Education Conference and during seminars for new judges in the state.
The training introduces judges to the science behind implicit bias and fosters an awareness that judges, like all people, aren’t immune to the influence of implicit bias.
There isn’t a clear path from implicit bias to discriminatory decision-making, explained Kimberly Ackmann, Deputy Trial Court Administrator to Judge McGraw. However, the training teaches how being motivated to control potential biases can determine how those biases manifest and what judicial officers can do to interrupt the cycle.
Rebuilding confidence in our legal system
A concern that biases undermine confidence in our legal system was a motivating factor for a program earlier this year sponsored by the Illinois Judges Association (IJA) and the Illinois Supreme Court Commission on Professionalism.
“Building Confidence in our Legal System,” a virtual three-part series, brought together legal and community stakeholders from across Illinois to address racial and other disparities in the legal system.
The program included three sessions: “Criminal Processes,” led by Justice Milton S. Wharton of the Fifth District Appellate Court; “Civil Procedures,” led by Judge Patricia Brown Holmes (Ret.) of Riley Safer Holmes & Cancila; and “Leadership of Stakeholders,” led by Justice Lisa Holder White of the Fourth District Appellate Court.
After the session, attendees provided feedback and suggestions for actions to further the public’s confidence in the legal system. The sessions were rated as “extremely valuable” by 60 to 70% of participants and “very valuable” by another 20 to 30% of participants.
“Our goal [with the series] was to build trust and confidence in the role of judges and lawyers in preserving [civil and constitutional] rights and furthering the cause of justice and fairness,” said Cook County Circuit Court Judge Diane M. Shelley, a Commissioner at the Commission on Professionalism who served as IJA President during the program.
Judge Shelley is collaborating with current IJA President Judge Barbara Crowder (Ret.) to develop a report capturing the key takeaways from the series and consider additional programming to build on the 2021 program.
Taking active steps forward
Providing training and educational programming is one way to continue to inform ourselves about the challenges in our justice system and build trust in the people we serve.
As Judge Shelley said, “The court and legal systems not only play a primary role in ensuring justice and upholding the law, but they are essential in guaranteeing the civil and constitutional rights of all people.”
Here in Illinois, we’re taking active steps to improve our understanding of how we can interrupt implicit bias in the judiciary to ensure the services delivered are fair and just. While these changes won’t happen overnight, taking these steps is vital to remedy a problem that continues to plague our justice system.
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