CBA Record January-February 2020

these ideas —that we could legitimately and honestly hold two different views at the same time, one of which might not be directly known to us—has sustained a strong focus on implicit bias and its role in the justice system. The significant takeaways include: Our biases can be measured with instruments such as the IAT, which we urge you to try. Our biases, as revealed by such measures, are implicit. And, perhaps most important, our biases may not correspond with our explicit, consciously, and honestly held beliefs. Admittedly, at first glance, this last point, indeed much of the work around implicit bias, is not what might typically be called “thinking like a lawyer.” But on further reflection, it does seem that the concepts have long been known to us, albeit without the modern-day label. The Hayward Case As an example, Judge Mark Bennett brought a 1928 case (written in the lan- guage of its time) to our attention. Earl Hayward, a young African American man charged with the rape of an older white woman, was represented by Lena Olive Smith, a civil rights lawyer and first African American woman in the Minnesota bar. After Hayward’s conviction, Smith moved for a new trial on several grounds includ- ing prosecutorial misconduct based on the prosecutor’s appeal to the racial prejudice of the jury. Smith pointed to the prosecutor’s having asked the all-male white jury, “Are you gentlemen going to turn this Negro loose to attack our women?”[Defendant’s Motion for New Trial, State v. Hayward , No. 26241 (4th D. Ct. Minn. June 18, 1928)]. Smith wrote: “The court fully real- izes … that the very fact that the defendant was a colored boy and the prosecutrix a white woman, and the entire panel com- posed of white men—there was a delicate situation to begin with, and counsel for the State took advantage of this delicate situa- tion.” She went on to observe that Perhaps [the jurors] were, with a few exceptions, conscientious in their expressions [of no race prejudice]; yet it is common knowledge a feeling can be so dormant and subjected to one’s sub-consciousness, that one is wholly ignorant of its existence. But Continued on next page...

well beyond flowers and insects to race, gender, age, sexuality, disability, weapons, and more. Project Implicit Since its launch, Project Implicit, which houses the online IAT, has recorded mil- lions of results, and has concluded that, in the aggregate, implicit biases are pervasive. On specific tests, Project Implicit has found that a substantial majority of takers demon- strate automatic preferences for European American over African American (71%), for women and families over women and careers (77%), and for abled over disabled (76%). Writing about implicit bias in Enhanc- ing Justice: Reducing Bias , law professors and psychologists Justin Levinson, Danielle Young, and Laurie Rudman remind us of its fundamental aspects—that our stereotypes are readily and unconsciously activated by primes (cues); that implicit responses and attitudes can be measured; and that, because of the automatic nature of these responses, people are often unaware of implicit biases or of how they affect their judgments. What’s more, they frequently differ from self-reported attitudes. Just as early researchers were surprised by their findings about differing speeds of response, many takers were surprised by these results. “Within a few years, research findings had established that IAT-measured attitudes and stereotypes were often either unwelcome to, or explicitly rejected by, research subjects.” It was not uncommon that “an avowed feminist might discover via an IAT that he or she has a strong implicit (indirectly measured) stereotype associating male with career and associat- ing female with family, …or a person with racially egalitarian beliefs might discover an implicit stereotype.” Writing in 2018 in the Scientific Ameri- can , UNC psychologist and neuroscientist Dr. Keith Payne and his colleagues Drs. Laura Niemi and John Doris captured years of scientific and legal research and analysis this way: “Amidst a controversy, it’s important to remember that implicit bias is real—and it matters.” Welcome or not, controversial or not, this focus on implicit response certainly caught the attention of the legal and edu- cation communities. The significance of

articulated bias we have long recognized. When the Miami police were playing Black Monopoly where every square said Go Directly to Jail, this was an explicitly biased game. The U.S. Department of Justice’s Report on the Chicago Police Department, which was the basis of the Consent Decree in State of Illinois v. Chicago , also found explicit biases. In contrast, implicit biases are learned associations that can affect our understand- ings, actions, or decisions; they are indirect, absorbed from the world around us and outside our direct awareness and control. Implicit biases may well be unknown and may well differ from our consciously held beliefs. Sometimes described as think- ing fast or System 2 thinking, this kind of reflexive bias has become part of our understanding far more recently. In the mid-1990s, Drs. Anthony Green- wald and Mahzarin Banaji drew attention to this key point about implicit bias: “The identifying feature of implicit cognition is that past experience influences judgment in a fashion not introspectively known by the actor.”Writing in 1998, Dr. Greenwald and his colleagues laid out the parameters of the Implicit Association Test (IAT) as a tool to measure this kind of implicit cognition. Previously, researchers seeking information about a person’s bias asked about it, and may or may not have received an accurate answer. Now, instruments such as the Implicit AssociationTest [IAT] offer another approach—measure. The IAT is typically taken online. It offers participants stimuli (prompting con- cepts, e.g., bedbug) and response options (e.g., insects or flowers) linked to keyboard response option keys E and I ). Later rounds offer response options that are less likely to be quick associations. Measuring response times shows that when concepts and attri- butes are highly associated (like bedbug and insect, or bedbug and unpleasant) share the same response key, responses are quicker than when the concepts and attributes are more weakly associated (like insects and pleasant). More mental effort and more time is required when the asso- ciations don’t come readily to mind. Early researchers were somewhat surprised when they found this difference in response time, which has come to represent what we now describe as implicit bias for topics going


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