Elimination of Bias - PowerPoint Presentation

Slide1

Elimination of BiasIn the Legal System

Presented by Myer J. Sankary, Esq. January 18, 2013

Applying Cognitive Science to Understand and Manage Express and Implicit Bias Slide2

What is bias?

General DefinitionA preference or prejudice, predispositionA judgment or decision based on preconceived notions, mindsets or stereotypes. Conservative vs. liberal? A decision not based on merits, but personal beliefs and opinions favoring a party.ExamplesProp 8 and DOMA – same sex marriageOther examples? Slide3

Types of bias

Cultural: interpreting and judging phenomena in terms particular to one's own culture. Socio-economic status. Personal: bias for personal gain.Linguistic: bias, favoring certain languagesPolitical: bias in favor of or against a particular political party, philosophy, policy or candidate.Geographical: describing a dispute as it is conducted in one country, when the dispute is framed differently elsewhere.Slide4

Types of bias (continued)

Religious: bias for or against religion, faith or beliefs;Disability bias – bias against people with disabilitiesAge bias – bias against elderly personsGender bias: including sexism

, homophilia

and heteronormativity. Sexual

Orientation

bias – homophobia

,

.don’t ask don’t tell, marriage

rights

Ethnic

or

racial

:

racism

,

regionalism

, ancestry, national origin, and

tribalism

.

Media

:

real or perceived bias of

journalists

and

news

producers within the

mass media

, in the selection of which events will be reported and how they are coveredSlide5

Bias in the law!Slide6

What is judicial bias?

The predisposition of a judge, arbitrator, prospective juror, or anyone making a judicial decision, against or in favor of one of the parties or a class of persons not based on the merits,evidenced by remarks, decisions contrary to fact, reason or law, or other unfair conduct. Bias can be toward an ethnic group, homosexuals, women or men, defendants or plaintiffs, large corporations, or local parties. Getting a "hometown" decision is a form of bias which is the bane of the out-of-town lawyer. Slide7

Judicial bias?

In theory, judges are supposed to be impartial. What does that mean?Are they allowed to have personal opinions? How much should a judge allow his or her personal opinions influence their legal judgment? Justice Sonia Sotomayor’s new Memoir. (Will her life experience of disease, discrimination, drugs, alcoholism, poverty, divorce, affirmative action affect her decisions?)Slide8

When should you recuse a judge?

When an African American judge is to preside over a civil rights case?When a gay judge is to preside over legality of gay marriage?When a male judge who went through a bitter divorce is to preside over a family law case?What are the consequences of bringing a motion to recuse a judge for bias? Slide9

Expectation of impartiality

When may a judge be recused for bias?George Zimmerman accused of murdering Trayvon Martin has asked for recusal of second judge based on Judge’s statement that Zimmerman “flaunted the system.”Where judge may benefit financially from the outcome of the case, or where he has had a business relationship with one of the parties or lawyers, he may be recused.General outlook or predisposition – not grounds for recusal.Slide10

Are these judicial pronouncements

evidence of bias? “Our obligation is to define the liberty of all, not to mandate our own moral code.”Judicial opinion referring to homosexual conduct, “I had thought that one could consider certain conduct reprehensible – murder, for example, or polygamy, or cruelty to animals – and could exhibit even ‘animus’ toward such conduct.” Slide11

Judicial pronouncements

“The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.” Slide12

Judicial pronouncements

The Texas sodomy law “seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable’ – the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity.” “If we cannot have moral feelings against homosexuality, can we have it against murder?”Slide13

Judicial pronouncements

Judge’s rationale for reducing the sentence of a convicted rapist:“I’m not a gynecologist, but I can tell you something: If someone doesn’t want to have sexual intercourse, the body shuts down. The body will not permit that to happen unless a lot of damage is inflicted, and we heard nothing about that in this case

. That tells me that the victim in this case, although she wasn’t necessarily willing, she didn’t put up a fight. And to treat this case like the rape cases that we all hear about is an insult to victims of rape. I think it’s an insult. I think it trivializes a rape.”Slide14

Discussion re Judicial Bias On Web

Recent Discussion Topic on LinkedIn:“DOES ANYONE REALLY BELIEVE THAT IT IS POSSIBLE FOR A FAMILY LAW JUDGE TO BE UNBIASED?”“Bias impacts the judge's factual findings, the great discretion they are given, and how they opt to apply the law. This bias exists in no other area of law to this degree. No amount of bias elimination training can educate a judge to forget about their life experiences, assumptions, personal beliefs/views and biases.” CommentSlide15

Jury Bias

Jury Selection – in theory the jury should be impartial, without bias, or prejudice. But each side wants to pick jurors who might favor their side based on their class, race, profession, experience, culture. Voir dire?Is it ok for prosecutor to exclude blacks from jury? North Carolina, Racial Justice Act, Intentional Bias; In Louisiana, state courts ruled ok to exclude blacks. Slide16

Juror Bias and Stereotypes

Studies show that some white jurors appear to be biased against black defendants. They do not give black defendants the presumption of innocence, but rather the reverse is true. Scientific American Mind, Jan/Feb 2013 Shooter Bias and StereotypesResearch suggests that there is a bias for white people to shoot unarmed black suspects more often than unarmed white suspects. So do trained police. Psychology Today, Markman, (2012)Slide17

How Juries Decide

Twelve Angry MenMovie ClipSlide18

Burns, Central Park Five

Ken Burns,

Documentary

Sarah Burns,

The Book

“I think that everybody here – maybe across the national will look at this case to see how the criminal justice system works… This is, I think, putting, the criminal justice system on trial.” Mayor Ed

Korch

, April 21, 1989

Five young black and

hispanic

teenagers were wrongfully convicted of rape and other felonies against a white female jogger in NY Central Park based on coerced confessions with no DNA evidence against them while the actual perpetrator committed 7 rapes and a murder in same area of park. They spent long prison sentences and refused to admit guilt in the crime.Slide19

Effect of bias

Undermines trust and confidence of the public in the legal systemDenial of due process and equal protectionCreates perception that system is not fairCan result in denial of access to jobsCan result in conviction of the innocentThe guilty remain free and may commit more crimesSlide20

http:www.innocenceproject.org

Nearly 70 percent of the 300 people exonerated by DNA testing to date are people of color.Races of 300 exonerees:187 African Americans86 Caucasians21 Latinos2 Asian Americans5 – Race unknownSlide21

Raymond TowlerDNA and the Innocence Project

Man Freed After 29 Years for Rape He Didn’t Commit

Exonerated by DNA evidence.

www.innocenceproject.comSlide22

Causes of Wrongful Convictions

Government misconduct – biased investigation and prosecution Slide23

Two kinds of bias

EXPLICIT BIAS IntentionalExpressedFully awareAnimus toward othersConscious DeliberativeIMPLICIT BIAS UnawareUnconsciousNot intentionalBias is deniedImmediate judgmentIntuitiveReactiveSlide24

IMPLICIT RACIAL BIAS ACROSS THE LAW

Edited by Levinson and SmithSlide25

Implicit bias throughout society

Some form of Bias (explicit or implicit) exists in the following areas – Implicit Racial Bias:Legal SystemMedicineHealth SystemEducationMediaPoliticsBusiness/ employmentSlide26

What is Implicit Bias?

“Implicit bias refers to the subconscious associations we make between a particular object and the meanings we attach to it.51  In the context of human beings, impli­cit biases result in automatic associations between an individual’s race and corres­ponding stereotypes and attitudes.  Perhaps most importantly, we now know that implicit bias predicts actual behavior.” Defusing Implicit BiasJonathan Feingold & Karen Lorang 59 UCLA L. Rev. Disc. 210, 2012 – Discussing the Trayvon Martin shooting.Slide27

Harvard Implicit Project

People are often unaware of their implicit biases. Ordinary people, including the researchers who direct the Implicit Project at Harvard, harbor negative associations toward various social groups (i.e., implicit biases) even while honestly reporting that they regard themselves as lacking these biases. Use of the Implicit Association Test atwww.implicit.harvard.edu. Slide28

Understanding Implicit Bias

“Implicit bias is largely automatic; the characteristic in question (skin color, age, sexual orientation)It operates so quickly, in the relevant tests, that people have no time to deliberate.It is for this reason that people are often surprised to find that they show implicit bias.Many people say in good faith that they arefully committed to an antidiscrimination principle with respect to the very trait against which they show a bias.Slide29

Studies of Implicit Bias

Studies available at Project Implicit examine thoughts and feelings that exist either outside of conscious awareness or outside of conscious control.Visitors have completed more than 4.5 million demonstration tests since 1998, currently averaging over 15,000 tests completed each week. Slide30

Implicit Bias

Implicit biases are pervasive. They appear as statistically "large" effects that are often shown by majorities of samples of Americans. Over 80% of web respondents show implicit negativity toward the elderly compared to the young; 75-80% of self-identified Whites and Asians show an implicit preference for racial White relative to Black. Slide31

Implicit – predict behavior

Implicit biases predict behavior. From acts of friendliness and inclusionTo hostility and exclusion,To more serious acts such as the negative evaluation of work quality, Those who are higher in implicit bias have been shown to display greater discrimination.Hostility toward politicians based on bias.Slide32

Varies from person to person

People differ in levels of implicit bias. Implicit biases vary from person to person - for example:as a function of the person’s group memberships, (ALL MALE GOLF CLUBS)the dominance of a person’s membership group in society, (JUDGES, PROSECUTORS) and consciously held attitudes.Slide33

Origins of Bias

NATURE Macaque Monkeys BabiesNURTURE Our views are shaped by what we are told and by our interaction with others not like us.

Showed preference for ingroupSlide34

Bias and prejudice arises from an early uncritical mindset

Once we have formed a mindset as a youth without critical examination of our belief, we behave mindlessly toward others in that category. Mindless behavior - on automatic pilot – Apply patterns acquired earlier and without reflection to later events and encounters.“All women are”…; “all blacks are…”; “all Jews are”….”all Mormons are….”Slide35

Two Systems of Thinking; “Thinking Fast and Slow,” Daniel Kahneman

System 1 IntuitiveInstinctiveFastAutomaticEmotionalSubject to Cognitive Biases System 2DeliberativeSlowRationalEffortfulConsciousCalculatingSlide36

Bias starts with instant judgments by reading faces! Friendly or hostile

Slide37

Warmth vs Competence

How we see others and how they see us: Competent (Associate)Incompetent (Ignore)Warm(Assist)Warm/ CompetentAdmireWarm/IncompetentPityCold

(block)Cold/CompetentEnvy

Cold/IncompetentContemptSlide38

Social attitudes change slowly.

US Constitution viewed women and blacks in an inferior status.After civil war, segregation, “separate but equal” was an acceptable mindset. Civil rights movement shifted attitudes toward minorities and women. (Rape)Discrimination against gender and sexual orientation persist – repeal of don’t ask don’t tell – Federal trial on same sex marriage – DOMA and Prop 8.Slide39

Final Suggestions on

managing bias.Be mindful of both implicit and explicit bias.Be aware of the social consequences of bias and prejudice. Judge others based on individual merits, not on preconceived stereotypes. Use System 2 rational, effortful thought process.Speak out against bias. Encourage diversity.Prof Conduct 2-400 – Anti-discrimination rules.Attend training programs and help others become aware of bias. Slide40

Century City Bar Association

Elimination of BiasPresented by Myer J. SankarySlide41

Judicial Bias in Family Law

Comments from participants in discussion:“Family law judges, at least in California, have far too much discretion. They can do nearly anything they like, and very few people have the money to file and pursue an appeal. Removing much of that discretion would serve to control the bias to some extent. There is no way you are going to find unbiased judges or teach judges to be unbiased.” Custody evaluatorSlide42

Judgment Heuristics and Biases

AnchoringBase ratesOverconfidenceSelf-serving biasEndowment EffectIllusion of controlIllusion of validityFramingPrimingAttribution ErrorAvailability HeuristicPrediction/ProbabilityPlanning FallacySunk Cost BiasThe Psychology of Intuitive Judgment: Cognitive biases – WYSIATI – “What you see is all there is!”Daniel

Kahneman, Thinking Fast and Slow (2011)Editors Kahneman

, et al, Heuristics and Biases (2002)Slide43

Decreasing Prejudice byIncreasing Discrimination

We make sense of the world by labeling, categorizing and naming things and characteristics of different people. Using global labels or categories, we tend to say anyone who is female, Catholic, Jew, Muslim, Black, homosexual, disabled, elderly all have similar characteristics. We fail to see others as individuals. By increasing categories and making distinctions, we can see other people in such groups as unique.Slide44

Use Mindfulness

to reduce biasMindful outlook recognizes each individual as unique – not same as others in class. Being mindfully aware requires more categorizations – and few global stereotypes.Acknowledge “Implicit Bias;” Take the IAT Test at www.implicit.harvard.eduEllen Langer, Mindfulness (1989) De Capo PressSlide45

Bias in jury selection

Alan Snyder v State of LouisianaBlack man convicted of murder – admission.Received the death penalty from an all white juryDid state’s dismissal by peremptory challenge of all the black potential jurors, combined with comparison to OJ Simpson trial amount toDenial of equal protection?See Snyder v Louisiana, 552 US __, 2008See No. Carolina reversal of death penaltySlide46

Organizing principle of the brain:

“Minimize threats -- maximize rewards.”

Amygdala

Emotions

Reptilian brain

For survival

Prefrontal cortex

Higher reasoningSlide47

Snap Judgments & Stereotypes

Warning: People are predisposed to associate those who are warm and friendly with incompetence! Amy Cuddy, Professor of Psychology HarvardEvolution shaped brain to quickly answer two questions for survival:What are this person’s intentions toward me?And is this person capable of acting on those intentions?Correlation between intention (warmth) and capability (competence) are inversely related.Slide48

Prejudice arises from “Premature Cognitive Commitment “ –Ellen Langer

Most of us grow up and spend time with people like ourselves.When we confront someone who is different, we drop assumption of commonality and look for differences – we look for negatives. Early attempts to learn about others may lead to a falsified view of the world and we cling to them. Judgment about others was premature.Slide49

Task Overview

You will be asked to focus on Good words (Wonderful, Love, Friend, Success) and ONE of the the two categories just below.1. Images of Black people2. Images of White people

Rapidly press "K" when Good words or images from the category selected for focus appear. Rapidly press "D" when Bad words (Terrible, Hate, Enemy, Failure) or images from the other category appear.

If you press the incorrect key, a red X will appear. Press the correct key rapidly to continue.

Implicit Association Test

Slide50

How to manage bias

Mindful self- awareness – we are all subject to subtle forms of bias. Make a conscious effort to judge others based on the merits, not on preconceived notions. Use the slow thinking rational brain!Show respect of others regardless of status.Increase Diversity in all institutions Bias Prevention Training.RPC 2-400 – anti-discrimination rules