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Heaven Horne

Professor Kelleher

EN 102 - 019

04 May 2018

The Fight to End Unconscious Biases in the Courtroom

America has made great progress throughout the years in terms of prejudice and racism.

Though our country has greatly improved on explicit racism, compared to previous years,

implicit racism has outstandingly become more prevalent. Because new social norms shuns most

racist tendencies and prejudices, people have been less open with their beliefs. Some individuals

hold unconscious biases, which negatively affect our justice system. Because African Americans

have historically occupied an unproportional percentage of prisons, law professionals have been

drastically searching to find an effective way

to avoid unintentional racism in court

decisions. Though there have been

successful attempts to end implicit bias, none

of these plans have been implemented into

law indefinitely. ​The law system is flawed

because people are not aware of their own

biases.Even though there may never be a foolproof system to end implicit bias, the Implicit

Association Test should be required because of their effectiveness, validity, and reliability. The

IAT test would be beneficial in the courtroom because it would allow individuals that are less

likely to display discriminative behaviors to be involved in court decisions.

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The Implicit Association Test (IAT) is an accepted psychological instrument used to

measure unconscious biases related to weight, age, sexual orientation, gender, and/or race,

reliably. ​The IAT is a computer-administered test available over the internet (Banks et al.) The

Implicit Association Test measures the strength of the association between social categories

(e.g., blacks or whites) and positive and negative attributes (e.g., “joy” and “love” versus

“agony” and “evil”) (Banks et al.) ​ ​At

the end of the exercise, the computer

calculates a score that reflects the

nature and magnitude of one's implicit

bias (Banks et al.) ​Though the Implicit

Association Test is universally

accepted by highly educated scientists

and psychologists as accurate, many sceptics believe that the IAT test is heavily flawed and

should not be solely relied on to combat racism. As explained in ​The Cut​,

It’s not a stretch to say that the Implicit Association Test is one of the most famous

psychological instruments created in recent history, and that it has been the subject of

more recent fascination and acclaim than just about anything else to come out of the field

of social psychology. Since the IAT was first introduced almost 20 years ago, its

architects, as well as the countless researchers and commentators who have

enthusiastically embraced it, have offered it as a way to reveal to test-takers what amounts

to a deep, dark secret about who they are: They may not feel racist, but in fact, the test

shows that in a variety of intergroup settings, they will ​act​ racist. This notion, and the data
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surrounding it, have fed into a very neat narrative explaining bias and racial justice in

modern America. ​The fact that the Implicit Association Test has come to so thoroughly

dominate the social-psychological conversation about race may be tilting the scales in

favor of certain explanations at the expense of others, not because they are better or more

empirically defensible, but simply because they more neatly fit a hot and frequently hyped

paradigm. Focusing so narrowly on implicit bias risks ignoring the complexity of the

problems, like racial disparities, that are argued to be caused to implicit bias. (Singal)

Research has proven that the Implicit Association Test advertently shows correlation between

implicit biases and complex issues such as racial disparities. ​Studies have shown that minorities

especially African-Americans, serve exceedingly longer sentences for the same crimes as whites.

Though African Americans and Hispanics make up approximately 32 percent of the US

population, they comprised 56 percent of all incarcerated people in 2015 (NAACP.) If African

Americans and Hispanics were incarcerated at the same rates as whites, prison and jail

populations would decline by almost 40 percent (NAACP.) Inadvertent racism is the culprit. The

Implicit Bias Test (IAT), the most well-known test to measure unconscious biases, has

repeatedly shown a widespread bias against African-Americans. The IAT reveals that people are

more biased than they realize. This can cause implicit racism in the courtroom. Therefore, racial

disparities are not being ignored, the Implicit Association Test has brought these issues further

into the “light.”

In an article written by two Yale Law professors, Christine Jolls and Cass Sunstein, the

implications of implicit bias in the courtroom are discussed. Noting the Implicit Bias Test, Jolls
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and Sunstein share that studies have found that whites are consistently favored over minorities,

especially African-Americans.

The Implicit Association Test is rooted in the very simple hypothesis that people will find

it easier to associate pleasant words with white faces and names than with African

American faces and names-and that the same pattern will be found for other traditionally

disadvantaged groups. In fact, implicit bias as measured by the IAT has proven to be

extremely widespread. Most people tend to prefer white to African American, young to

old, and heterosexual to gay. Strikingly, members of traditionally disadvantaged groups

tend to show the same set of preferences. The only major exception is that

African-Americans themselves are divided in their preferences; about equal proportions

show an implicit preference for African Americans and whites. Note, however, that

unlike whites, African-Americans taken as a whole do not show an implicit preference

for members of their own group. (Jolls)

Jolls and Sunstein blame the existence of unconscious biases on our System One processes. This

meaning that implicit biases are automatic and fast. Because Implicit Association Test do not

allow subjects to deliberately think about a response, they rely on these System One processes to

make quick judgements. Jolls and Sunstein believe that the law system is flawed because people

are not aware of their own implicit biases. “Blink of the eye” racism, is a term used to describe

the irrational opinions that people form against others (Moule.) These unconscious thought

processes influence the way an individual may act against others. We hold beliefs in ourselves

that we are not aware of. Our unconscious is powerful beyond our knowledge. Unconscious

beliefs are caused by false stereotypes that are learned in society (Navarro.) However, these
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unconscious attitudes and beliefs do not define us. These beliefs and stereotypes are buried deep

within us and may go unnoticed even though we act on them.

It is crucial to gain awareness of these implicit biases within ourselves to prevent acting

on them. Because discrimination is socially unacceptable nowadays, many people try to

disregard their biases. Though America has long progressed from the overt racist era of Jim

Crow laws, prejudice tendencies are still

apparent in America’s courtrooms. Unconscious

biases have taken the place of explicit racism.

Implicit Association Tests has the ability to

distinguish implicit bias from conscious bias. A

meta-analysis of IAT studies conducted by a

Harvard professor found that implicit attitudes

as measured by the IAT predicted certain types

of behavior, such as anti-Black discrimination or

intergroup discrimination, substantially better than explicit bias measures (Kang.) ​African

Americans are only 13% of the American population but a majority of innocent defendants

wrongfully convicted of crimes and later exonerated (Kang.) Now imagine if the individuals in

these court decisions were required to take an Implicit Association Test. We have the resources

available to prevent these situations. Even if the test may seem unreliable to some, it has the

possibility to ensure fair trials for all Americans.

Implicit bias is a major topic in today's society. Unconscious biases are an accepted

variable in court cases. Law professionals are aware of this crisis; however, no of them know
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how to manage the situation head on. Because unconscious biases are not explicit beliefs, there

may be a gap in how to ultimately abolish this situation. I believe that there is not a perfect

method, but there are efficient ways to ensure fairness. I strongly believe that it is appropriate for

jurors to be aware of possible unintended biases. Jurors should be required to take an Implicit

Association Test before appearing in court. The IAT could ultimately help jurors to think more

thoroughly about the sentencing. This could prevent jurors from making fast or rash decisions.

The Implicit Association Test is a must in our judicial system. Why not use a viable tool that has

the power to bring much needed change?

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Works Cited

Banks, Ralph Richard and Richard Thompson Ford. ​(HOW) DOES UNCONSCIOUS BIAS

MATTER?: LAW, POLITICS, AND RACIAL INEQUALITY​. 5th ed., vol. 58, Emory Law

Journal, 2009.

Jolls, Christine, and Cass R. Sunstein. "The law of implicit bias." ​Cal. L. Rev.​ 94 (2006): 969.

Kang, Jerry, et al. "Implicit bias in the courtroom." ​Ucla l. Rev.​59 (2011): 1124.

Moule, Jean. "Understanding unconscious bias and unintentional racism." ​Phi Delta Kappan

90.5 (2009): 320-326.

NAACP. “Criminal Justice Fact Sheet.” ​NAACP​, www.naacp.org/criminal-justice-fact-sheet/

Navarro, Renee. “Unconscious Bias.” ​Unconscious Bias​, UCSF Office of Diversity and

Research, diversity.ucsf.edu/resources/unconscious-bias.

Singal, Jesse. “Psychology's Favorite Tool for Measuring Racism Isn't Up to the Job.” ​The Cut​,

11 Jan. 2017.