What Judges Can Do About Implicit Bias

Abstract

"Implicit bias” was not well known in legal communities twenty years ago. But now, the idea of implicit bias circulates widely in both popular and academic discussions. Even the casually interested judge knows a great deal about the topic. Still, even as the problem of implicit bias has grown familiar, potential solutions remain out of focus. Specifically, what can judges do about implicit bias, in their capacities as managers of a workplace, as well as vessels of state power? In 2009 I wrote a Primer for the National Center for State Courts, which described the challenge of implicit bias to judicial audiences.1 In 2012, I was the lead author of a more systematic examination titled Implicit Bias in the Courtroom. That author team included not only legal scholars but also psychology professors such as the inventor of the Implicit Association Test (IAT), as well as a sitting federal judge. Together, we described the then-state-of-the-art and recommended potential countermeasures.

The goal of this article, nearly a decade later, is to update the scientific understanding since 2012. It also revises, reorganizes, and streamlines recommendations for judges who believe that implicit bias is a genuine problem but don’t know what to do about it. To keep length manageable, it focuses on the challenge of implicit biases held by judges themselves and does not directly address the biases held by others, such as police officers, probation officers, prosecutors, and jurors. It also focuses mostly on individual-level responses that judges can take themselves although institutional-level reforms may be what’s most important. Concrete recommendations appear in the Appendix and useful Bench Card.

Keywords: implicit bias, implicit social cognition, judging, judges, countermeasures, remedies