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Does Unconscious Bias Affect Trial Judges? -- ISS Research Provides New Evidence |
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With the support of an ISS seed grant and supplemental support from the Cornell Law School, Professors Jeffrey Rachlinski and Sheri Johnson have produced a unique publication on the role of race in the judicial system. Jeff is a Professor at the Law School. Sheri is also a Professor of Law, and Co-Director of the Cornell Death Penalty Project.
Overview of project:
Unconscious racism appears to be widespread. In recent years, social psychologists have demonstrated that even those who embrace egalitarian norms harbor invidious implicit associations about African Americans. Most white adults, for example, more closely associate white faces with positive words and associate black faces with negative words than the opposite pairing. Psychologists have administered this measure, known as the Implicit Association Test (or IAT to hundreds of thousands of white adults, who consistently show this white preference. Variations on the IAT suggest that people tend to associate blacks with weapons, and even with apes, while associations with whites are more positive. The IAT has also shown that implicit prejudice is pervasive for a large variety of attributes (race, gender, ethnicity, age, etc - see Project Implict).
But do these unconscious biases affect the judgment of significant decision makers in our society? The evidence connecting these biases with actual judgments remains somewhat thin, especially in the legal system. The legal system produces widespread disparities in outcome between black and white criminal defendants, but these disparities have many potential sources other than unconscious bias. Professors Rachlinski and Johnson undertook this project to begin to assess whether the widespread presence of unconscious bias influences legal decision makers—in this case trial judges. Judges are an especially compelling group to study because not only do their decisions have significant impact on the lives of ordinary individuals, but also because judges have a strong professional commitment to equal treatment.
In their study, Rachlinski and Johnson (along with two co-authors outside of Cornell—Andrew Wistrich, a U.S. Magistrate Judge, and Chris Guthrie, a professor of law at Vanderbilt Law School measured the influence of implicit associations on legal judgments made by 133 sitting trial judges. The judges assessed three hypothetical scenarios in which the race of the defendant varied in an effort to correlate these assessments with judges’ implicit associations concerning race. The researchers manipulated the race of the defendant in two different ways: first by subliminally priming judges with words associated with African-American and second by explicitly identifying the defendant’s race. The subliminal priming task involved exposing judges to one of two sets of words--one consisting of words closely associated with African-Americans (e.g., Oprah, jerricurl) or one consisting of words with no distinct association (e.g., sunshine, baby). Words from one of these two sets appeared on the periphery of a computer screen during a distracting computer task, and were masked by a string of random letters. The researchers found that, like other Americans, the judges held invidious implicit associations concerning African Americans. These associations, however, did not influence their judgment when the researchers explicitly identified the race of the defendant. In contrast, those implicit associations did influence judges when the researchers manipulated the race of the defendant through subliminal techniques. These results suggest that judges can control the influence of unconscious racial bias—but only when they are consciously focused on doing so and are motivated to do so.
Activities to date:
The research has, thus far, produced one scholarly piece, describing the results, entitled “Does Unconscious Bias Affect Trial Judges?” In addition to documenting the results, the paper provides a critical review of the existing research connecting IAT results with behavior. The review concludes that the relationship between unconscious bias and behavior is apt to be complicated, particularly in legal settings where many actors are on guard against the influence of bias. The research thus far shows that judges have the capacity to suppress the influence of unconscious bias in some settings; whether judges are sufficiently motivated to do so in their courtrooms, or whether the busy courtroom environment facilitates this ability, remain as open questions.
Continuing work. Trial judges are inherently interested in research on judging, and on the role of bias in particular. Several judges have expressed interest in this project—and early drafts of the work have already been cited in a published opinion by one of the nation’s leading trial judges, Hon. Jack Weinstein. The authors, in fact, we invited to collect more data on a different group of judges by a trial judge who had heard of the work. The authors have also been invited to draft a short version of the paper for Judicature, which is the leading peer-reviewed publication popular with judges. Publication is apt to inspire further interest by judges. Some might even choose, as the State of California has, to integrate discussions of unconscious bias into their judicial training. This research might thus inspire a novel type of judicial self-examination.
