Synthesis Paper: Addressing Implicit Bias in Criminal Courtrooms

Addressing Implicit Bias in Criminal Courtrooms
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Abstract
The Bible calls upon each of us to speak for those who do not have voices and defend the rights of the downtrodden. Federal judges can rise to the call by establishing courtroom procedures that minimize the likelihood of implicit bias influencing the decisions that attorneys make in criminal court proceedings. Implicit bias has been identified as one of the key factors that lead to the disproportionate incarceration of minority and marginalized groups in the United States' justice system. The issue remains one of the key challenges in the justice system. Four ways through which judges could minimize or reduce implicit bias include attorney training, offering more time for the attorney to prepare for a case, auditing case outcomes, and adding more questions in the plea colloquy.
Addressing Implicit Bias in Criminal Courtrooms
The Federal Courts as provided by Article III of the US Constitution play a leading role in dispensing justice in American society. Notably, the Constitution gives federal judges the independence and freedom necessary to enable them to take action to streamline the justice delivery system within the courtrooms. With this in mind, judges can play a leading role in addressing implicit bias in criminal courtrooms. Implicit bias refers to the unconscious and automatic elements of prejudice when making a judgment on a given social behavior. In the United States society, particular stereotypes about the minority and marginalized members of society are common and play a major role in shaping high-stakes decision-making (Levinson, Smith, & Hioki, 2019). The stressful nature of the criminal process significantly increases the role of implicit bias in the decision-making process.
High rates of incarceration in the United States has seen a disproportionate representation of African American in prison, with a study conducted showing that Blacks make up 30 percent of the prison population (Kovera, 2019). The figure is disconcerting given that African Americans account for 13 percent of the total population. Equally, Hispanics are only 18 percent of the US population but are 22 percent of the prison population (Kovera, 2019). Kovera (2019) notes that the disproportionate arrest of members of the two ethnic populations accounts for 70 to 75 of the racial disparities in incarceration. In the same vein, two major causes of differential incarceration of minorities and marginalized groups are prosecutors’ bias and public defenders’ bias. Training attorneys on implicit bias, auditing case outcomes, allowing time for the attorneys' decision-making process, and adding questions to the plea colloquy are four main solutions that could eliminate or reduce the impact of implicit bias in criminal courtrooms.
Prosecutors’ Bias
While some district attorney offers training programs intended to minimize implicit bias, there is minimal evidence to indicate that prosecutors are not affected by implicit bias when making decisions in criminal court proceedings. Notably, there are multiple stages that prosecutors can be affected by implicit bias when making a decision. The initial decision of whether to charge a given criminal with a crime and the type of crime to charge one with heavily can be heavily influenced by the association between crime and race. The prosecutor can also decides whether to contest bail or give a plea bargain to the arrested individual based on their implicit bias about the arrestee (Sloan, 2019). Throughout the life cycle of a given court case, the prosecutor’s decisions depend on their subjective judgment of the suspects and the extent to which they consider the suspect to be dangerous to society. Nonetheless, there is minimal focus on the extent to which prosecutorial decisions are influenced by implicit bias.
The minimal focus on the role of implicit bias in prosecutorial decision-making can be blamed on the absence of a disciplinary system intended to minimize the role of implicit bias in decision-making. Joe (2020) notes that complaints about prosecutorial misconduct are rarely addressed by the existing disciplinary system with a 2013 report showing that only 63 out of 3,625 cases of misconduct submitted between 1963 and 2013 resulted in sanctions. The figure represents a mere 2 percent indicating the limited investigations into prosecutorial misbehaviors, indicating that cases of implicit bias are hardly addressed.
Public Defenders’ Bias
In addition to prosecutors, public prosecutors usually fall prey to implicit bias in their courtroom decision-making. While public defenders’ actions are driven by their best intentions, they occasionally make biased decisions in stressful situations. The prevalence of implicit bias among public prosecutors mainly stems from the limited resources and the need to make decisions on how to best utilize the resources they have on hand. For example, a public defender may make a biased decision on what to request from the judge based on their evaluation of a suspect (Singh & Khan, 2021). In such cases, the public defender may fail to make a court request if they feel that a judge would not find the witness relevant to the case.
In addition, the advice that public prosecutors present to a suspect depend on their view of the client. It is highly likely for a public defender to advise a client to accept a given type of punishment based on their implicit bias about the suspect. In the same way, the efforts that a public defender expends towards defending a given client and their pushback against a prosecutor in the courtroom process are influenced by their view of the suspects. In all such cases, the public defenders are highly likely to be influenced by their implicit bias about the suspect.
Solutions to the Issue
To address the influence of implicit bias in the courtroom process, federal judges can use the powers vested in them to ensure that the attorneys in their courtroom are not affected by individual bias. To this end, the judges have the freedom to adopt and enforce their ethical rule. As such, they can rely upon the Model Rules of Professional Conduct that were set in place by the American Bar Association in 1983 and amended in 2016 to prohibit discrimination in the courtroom. The effectiveness of solutions driven by judges in eliminating implicit bias is supported by the inherent powers that federal judges have to sanction the individuals that they consider as violating the set ethical rules in their courtrooms. In addition, the judges can discipline the attorneys who fail to observe the measure they implement through referral to the State bar for further disciplinary actions. With this in mind, federal judges can play a leading role in reducing and eliminating implicit bias in the courtroom in four main ways.
Training using ABA Toolkits
The federal judges can leverage the guidelines provided by the American Bar Association on how to educator attorneys in their courtrooms about the dangers of implicit bias in decision-making. American Bar Association (ABA) provides readily available training toolkits. Thus, judges could apply the toolkits to schedule t...