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Another Step Toward Equal Justice: Identifying Implicit Bias

11/29/2017

November 29, 2017

Traditionally, efforts to ensure that all persons are treated equally under the law have focused on what are often perceived to be objective criteria: making sure that meaningful access to judicial resources is available to all who need them when they need them, that everyone who comes to court is subject to the same rules and protected by the same rights, that everyone will be held equally accountable if they break the law, and that everyone will receive a full and fair hearing without regard to their race, gender, religion, age, economic circumstances or social standing. When we speak of justice being blind, this is what we mean, and we have enacted elaborate rules, regulations, and other measures to help make it so.

In recent years, however, there has been increased recognition that no matter what formal safeguards we put into place, stereotyping and unconscious attitudes can have significant negative effects on the fairness of legal proceedings. In a signal article written for the Illinois Bar Journal in 2014, Illinois Appellate Justice Michael Hyman, drew on growing academic research to explain how the automatic and unconscious prejudices to which we are all subject can adversely affect prosecutorial decision-making, result in disparate arrest and conviction rates for minorities, skew jury selection, cloud juror deliberations and infect decision making by judges and mediators. Hyman, Implicit Bias in the Courts, 102 Ill. B.J. 40 (January 2014). So pressing is the issue that when Vincent Cornelius assumed the presidency of the Illinois State Bar Association in 2016, he commenced his term by opening a dialogue on confronting and addressing how implicit bias adversely affects efforts to achieve social progress and impede justice. Cornelius, Understanding Implicit Bias, 104 Ill.B.J. 10 (August 2016). This past year, the DuPage County Bar Association likewise made the problem of implicit bias a centerpiece of its educational programing (Donner, Implicit Bias in the Law: An Important Focus for 2017, 29 DCBA Brief 5 (January 2017), and Justice Hyman was motivated to do a follow up to his 2014 article, this time offering strategies for legal professionals to recognize and address the unconscious negative biases that affect their judgment and behavior. Hyman, Reining in Implicit Bias, 105 Ill.B.J. 26 (July 2017).

The Illinois Supreme Court shares these concerns over implicit bias. Indeed, as part of its commitment to improving equality and fairness in the administration of justice, the Court has been at the forefront of efforts to systematically assess the extent and impact of implicit bias on judicial decision making. Shortly after the Court established its Committee on Equality in 2015, we approved a proposal by the Committee to undertake a statewide study of how judges make their decisions and of the considerations that may influence the decisions they reach, including adverse working conditions, race, gender, poverty and legal representation in criminal, civil and family law cases. This ground-breaking study, which was developed and guided by American Bar Foundation researchers Dr. Andrea Miller and Dr. Robert Nelson, and undertaken with the cooperation of the Conference of Chief Judges and the assistance of the Administrative Office of the Illinois Courts, was the first of its kind in the nation. All circuit and associate circuit judges in Illinois were invited to participate in the study survey, which was administered online. In the end, 619, a majority of our trial court bench, did so.

Results of the study were formally submitted to the Supreme Court by Chief Judge Joseph McGraw of the Seventeenth Judicial Circuit, who serves as chairperson of our Committee on Equality, this past August. At the beginning of this month, following review by the Supreme Court, a summary of the study’s results was distributed to the Appellate Court Administrative Committee, the Supreme Court Commission on Access to Justice, the Conference of Chief Judges, the Illinois Judicial Conference Strategic Planning Committee and the Illinois Judicial College Board of Trustees. Those results, which were based on hypotheticals submitted to survey participants, found that implicit biases are in fact present among members of our judiciary and that those biases may affect outcomes depending on the race, gender, and poverty of the parties and on whether or not the parties have lawyers to represent them. Additional factors, including adverse working conditions, were also found to have potential effects on judges’ ability to make consistent, unbiased decisions.

Completion of the study is not the end of our inquiry. It is merely the beginning of an ongoing process. With survey results in hand, the Committee on Equality will now solicit feedback from the various other committees, commissions and boards noted above in order to formulate and coordinate ongoing educational programs that will assist judges throughout the state in recognizing the implicit biases that may affect the outcome of the cases they hear and in developing strategies that will enable them to avoid acting in ways that are unknowingly and unintentionally unfair. This is where the real work begins. Experience has shown, however, that the members of today’s judiciary are deeply committed to achieving a court system as free of bias as is humanly possible. I am therefore very optimistic about our ability to make real and sustained progress.

On behalf of the entire Court, thanks to everyone who has helped so far. Thanks as well to everyone who will be helping in the future as we move forward together. And one more thing. If you did not participate in the survey and do not think that you, yourself, suffer from any implicit bias, here’s another set of tests you can take:
https://implicit.harvard.edu/implicit/.
I bet you’re wrong.