Transcript Exploring the Impact of Implicit Bias in the Courts:”

The American Judges Association:
Making Better Judges®
Alan Tomkins, J.D., Ph.D.
Judge Kevin Burke
Judge Steve Leben
September 24, 2013
Note: Opening video omitted.
Implicit Bias
• Implicit attitudes and stereotypes about
social groups (e.g., age, gender, race)
• Operate below the radar—not aware of
them
• Can affect behavior even by those who
consciously strive to be fair and objective
Judges and Implicit Bias
Rachlinski & Colleagues (2009)
•
•
•
•
White judges showed a strong white preference.
Black judges showed no clear overall preference.
Some evidence suggested effects on sentencing.
But some cause for hope: “[W]hen judges are
aware of a need to monitor their own responses
for the influence of implicit racial biases, and are
motivated to suppress that bias, they appear
able to do so.”
As we discussed in jury selection, growing scientific
research indicates each one of us has “implicit biases,” or
hidden feelings, perceptions, fears, and stereotypes in our
subconscious. These hidden thoughts often impact how we
remember what we see and hear and how we make
important decisions. While it is difficult to control one’s
subconscious thoughts, being aware of these hidden biases
can help counteract them. As a result, I ask you to
recognize that all of us may be affected by implicit biases in
the decisions that we make. Because you are making very
important decisions in this case, I strongly encourage you to
critically evaluate the evidence and resist any urge to reach
a verdict influenced by stereotypes, generalizations, or
implicit biases.
Making Decisions: Traditional View
Careful
Deliberation
Who Makes Bail Decisions?
“[T]he situation . . . depends on an enormous
weight of balancing information, together
with our experience and training.”
“[W]e are trained to question, and to assess
carefully the evidence we are given.”
How magistrates told researchers they assess
bail decisions.
Dhami & Ayton (2001)
Making Decisions: Another View
Quick &
Automatic
Dual System of Information
Processing
• Reflective (Deliberate)
– Analytic, slow,
conscious
– Limited capacity
• Reflexive (Intuitive)
– Automatic, rapid,
unconscious
– Always working
Reliance on Automatic Processing
“Most of the time we solve problems without
coming close to the conscious, step-by-step
analysis of the deliberative approach. In fact,
attempting to approach even a small fraction of
the problems we encounter in a full,
deliberative manner would bring our activities
to a screeching halt. Out of necessity, most
problem-solving is intuitive.”
Brest & Krieger (2010)
Terry Maroney Said We’d Talk About
Multitasking (The Daily Double)
• Brain “multitasks” by rapid
task switching, not actually
multitasking.
• Almost universally (97% of
people), multitasking has a
cost in performance.
• Practice does not make
perfect. High media
multitaskers were worse at
task switching.
• Crash risk of using “handsfree” cell phone while
driving comparable to DUI.
• Why we do it: It feels good.
How Do We
Process So
Fast?
• Reliance on Schemas (recognized
patterns)
• Use of Heuristics (rules of thumb)
Schemas Based on Associations
Learned Over Time
But Schemas Can Also Be Problematic
• Based on incomplete information –
stereotypes (implicit bias)
• Resistant to change – confirmation bias
• Applied incorrectly
How Do We
Process So
Fast?
• Reliance on Schemas (recognized
patterns)
• Use of Heuristics (rules of thumb)
Heuristics
• Mental shortcuts, approximations, rules
of thumb used to make judgments quickly
and efficiently
• Rely on only some of the information
available
– Example: Bail-decision study
• Often work (sometimes are better)
• Like schemas, sometimes lead us astray
Examples of Heuristics
•
•
•
•
Anchoring
Reliance on small samples
Framing
Hindsight
Are judges immune from
common heuristic errors?
A Theory: Judges have
been specifically
trained to follow
procedural rules
designed to minimize
the influence of
irrelevant information.
Judges and Common Errors
Englich & Colleagues (2006):
• Judges influenced by randomly determined
anchors (journalist’s question, prosecutor’s
random sentence demand, judge’s throw of
dice)
Guthrie & Colleagues (2001):
• Judges exposed to anchor of $75,000 awarded
damages of almost 30% less ($882,000
average v. $1.25 million)
Recap
• Behaviors and decisions result from a
combination of both reflexive and reflective
processes
• Both are necessary (default-intervention
model)
• Bring awareness to the extent of automatic
processing
Weak Numbers on Some Key Principles
• Thinking about the (STATE) court system, please tell me whether, in your
opinion, each of the following words or phrases describes the state’s courts very
well, well, not very well, or not well at all.
Fair and impartial
18
Provide equal justice to all
19
A good investment of taxpayer dollars
13
Provide good customer service to people dealing
with the courts
12
57
54
49
44
Overwhelmed
28
Inefficient
Very Well
19
Underfunded
16
Intimidating
17
Total Very Well / Well
59
0
10
47
45
39
20
30
Source: NCSC/Justice at Stake survey, June 2012 (MOE ± 3%).
40
50
60
70
80
22
Public Attitudes Toward the Courts
• Consider:
– Depth of knowledge
• Only about half of people are aware that the United
States Supreme Court can declare a statute
unconstitutional.
– Views of our legitimacy as an institution
• Ratings of all branches of government are lower than
normal.
A Quick Tour:
Procedural Fairness
24
What Does Fair Mean?
• Outcome favorability: Did I win?
• Outcome fairness: Did I get what I deserved?
• Procedural fairness: Was my case handled
through fair procedures?
Lawyers vs. the Public:
Predictors of Confidence
Source: California State Courts study, 2005.
Components of Procedural Fairness
•
•
•
•
Voice
Neutrality
Respect
Trustworthy Authorities
Voice
• People want the opportunity to tell their
side of the story and have their stories
told to a judge who listens carefully.
Neutrality
• Decision maker is transparent and open
about how decisions are being made.
• Gives an explanation in terms
understandable by a lay person.
• Cites to relevant statutes, rules, or court
policies.
Respect
•
Taking people’s concerns seriously
–
•
Shows respect for them as people and as citizens who have
the right to address the court about their issues.
People come to court about issues that are important
to them, irrespective of whether they have a strong
legal case.
–
–
Judges need to explain why those concerns can or cannot be
accommodated in a legal setting.
The same concerns apply to court employees.
• Respect for their rights
– Give people information about what their rights are.
Tell them how to complain to higher authorities.
Trustworthy Authorities
• Studies of legal authorities constantly show that
the central attribute influencing public
evaluations of judges is an assessment of the
character of the decision maker (sincere,
caring).
– Are you listening to and considering people’s views?
– Are you trying to do what is right for everyone
involved?
– Are you acting in the interests of the parties, not out
of personal prejudice?
“At least this time, Kevin and Steve
did not just make this stuff up.”
– Professor Alan Tomkins
•
•
•
•
J.D.
Ph.D., social psychology
Cool guy
AJA Award Winner
Social Science Research: Potential
Implications of Feeling that Judges
Treated People Fairly
• Nobody likes to lose…
– But when someone loses (“distributive justice”),
those who feel like they have been treated fairly
(“procedural justice”) evaluate a variety of factors
significantly higher than those who do not feel that
way.
• Feeling fairly treated increases overall trust and
confidence in the judge/court
– What does trust and confidence mean? Our
research program examines the components of
trust.*
– Meaning & Measurement
)
*Supported in part by funding from National Institute of Justice (2008-IJ-CX-0022) and National Science
Foundation (SBE-0965465, SES-1061635, SES-1154855)
Components of Trust, 2013: 14 Separable Trust Items
University of Nebraska Public Policy Center
• Items based on both institutional targets as well as
institutional representatives (e.g., Court/Judge, City
Hall, etc.); presented in alphabetical order in the
slides that follow
• Adapted here for use by individual judges
All items scored on a 1-7 Likert-type scale:
1
2
3
4
5
6
7
Strongly
Disagree
Disagree
Somewhat
Disagree
Neither Agree
nor Disagree
Somewhat
Agree
Agree
Strongly
Agree
Care, Competence, Confidence, Cynicism
CARE
1. For the most part, Judge X acts out of concern for those who appear in court.
2. Judge X puts aside personal interests in order to make decisions that are right for those
who appear in court.
3. Judge X has the best interests in mind of those who appear in court.
COMPETENCE
1. Judge X is competent to do his/her job.
2. Judge X is highly qualified.
3. Judge X has the skills necessary to do his/her job.
CONFIDENCE
1. My confidence in Judge X is high.
2. Judge X performs court functions as s/he should.
3. I trust Judge X.
CYNICISM
1. Judge X is out of touch with what’s going on in the community.
2. Judge X does not protect my interests.
3. Judge X is not representative of the community.
Dispositional Trust, Impartiality,
Honesty/Integrity, Legitimacy
DISPOSITIONAL TRUST
1. I trust what most people say.
2. Most people try to be fair.
3. Most people try to be helpful.
IMPARTIALITY
1. Judge X’s actions of biased.
2. Judge X acts in the interests of some groups over others.
3. Judge X is overly influenced by special interest groups.
HONESTY/INTEGRITY
1. Judge X is honest.
2. Mostly, Judge X lacks integrity.
3. Even when it is difficult, Judge X maintains his/her values.
LEGITIMACY
1. Judge X uses his/her power appropriately.
2. Judge X is a legitimate authority.
3. Fair procedures were used to seat Judge X.
Loyalty, Obligation to Obey,
Process Fairness (PJ-related)
LOYALTY
1. I generally support Judge X, even when I disagree with
some of what s/he does.
2. I have respect for Judge X, even when I disagree with his/
her decisions.
3. I feel a sense of loyalty to Judge X.
OBLIGATION TO OBEY
1. I feel I should accept decisions made by Judge X.
2. Good citizens will accept the decisions of Judge X.
3. Even in the face of personal difficulty, I would feel obligated to
accept the decisions of Judge X.
PROCESS FAIRNESS
1. Judge X uses fair procedures to make decisions.
2. Judge X generally has been fair.
3. In general, I have been treated fairly by Judge X.
Respect, Shared Values, Voice (PJ-related)
RESPECT
1. Judge X treats people with respect.
2. Even when dealing with people who disagree, Judge X still
treats people with dignity.
3. Judge X respects my rights.
SHARED VALUES
1. Judge X shares my values.
2. Judge X supports my values.
3. I share Judge X’s values about how the court should do its job.
VOICE
1. Judge X listens to my opinions.
2. People have a say in Judge X’s decisions.
3. Litigants can influence Judge X’s decisions.
Trust & Confidence Measures
Construct
Sample Items
Alpha
Unspecified Trust
Lincoln City government can usually be trusted to make decisions that
are right for the residents as a whole.
.7-.9+
Benevolence
Lincoln City Government cares about residents they regulate.
.8-.9+
Competence
Most Lincoln City government officials are competent to do their jobs.
.8-.9+
Integrity
Most Lincoln City officials lack integrity. (reversed)
.6-.8+
Voice
Residents have a great say in important Lincoln City government
decisions.
.8-.9+
Neutrality
Lincoln City government is overly influenced by special interest groups.
(reversed)
.8-.9+
Respect
Lincoln City government officials treat residents with respect.
.6-.8+
Legitimacy
The Lincoln City government is a legitimate governing body.
.6-.8+
Loyalty
Lincoln City government usually has good reasons for its decisions,
even when those decisions are not popular.
.7-.8+
Cynicism
Lincoln City Government represents the values of people in power
rather than the values of people like me.
.6-.8+
General Trust and Confidence Measures:
Change over Time, After PJ/Fairness
Intervention with City Hall, Lincoln, NE
Procedural Fairness Measures:
Change over Time
Correlations between Change in Trust-Related Constructs
and Change in Support Variables:
Putting $ to PJ and Trust/Confidence
Legitimacy
TRUST & CONFIDENCE
Unspecified confidence
a
Trustworthiness
Integrity
Benevolence
Competence
.17
.21
.06
.03
.34**
PROCEDURAL FAIRNESS
Voice
Neutrality
b
Respect
.07
.10
.04
SUPPORT
Legitimacy
Loyalty
b
Satisfaction
-.23
.09
Loyalty
.18
.37**
-.01
.29*
.44**
Satisfaction
.43**
.41**
-.02
.39**
.45**
Total programs
funded
Total programs
cost
.13
.30*
.18
.22
.26
.09
.23
.17
.14
.22
.02
.19
.07
.21
.56***
.22
.27*
.35**
-.09
.15
.27
-.08
.23
.09
.35**
--
.09
-.04
.02
.02
-.05
-.05
-.35**
Making Better Judges®
• What can we do as
judges to improve our
performance so as to give
people a justice system as
good as the promise of
justice?
• The AJA’s two-step plan:
– Improved procedural
fairness
– Better decision making
Making Better Judges®
• AJA White Papers
– 2007: Procedural Fairness
– 2010: Judicial Elections
– 2012: Judicial Decision
Making
[The papers in red were recently
noted in a joint resolution of the
Conference of Chief Justices and
Conference of State Court
Administrators urging courts to
promote procedural-fairness
concepts. Pretty cool, huh?]
Mindful Decision Making Strategies
• Use decision aids (checklists, risk
assessment instruments, benchcards)
• Seek feedback and foster
accountability
• Formalize and critique decision
heuristics
Physician’s Mindfulness Skills
Can Improve Care for Patient
and Provider
STOP Meditation
• Stop what you are currently doing
• Take a deep breath and focus on the sensation
of breathing
• Observe what you are thinking, feeling, and
doing, and
• Proceed with new awareness
Procedural Fairness
in a Nutshell
• Was the person listened to?
• Were litigants treated with respect?
• Do they understand:
– What the decision was?
– Why the decision was made?
• Neutral principles
Improving Individual Skills
• Evaluate the way you come across on the bench
– One option: videotape
– Another option: have a colleague observe you
– Another option: have a communications professor
observe you
• Work on mindfulness and decision-making skills
Judicial Attention Awareness Scale
• I find it difficult to stay focused on what’s
happening in the present.
• I tend to focus on what I thought would be
important in the hearing before it began.
• I find myself listening to someone with one
ear, doing something else at the same time.
• People may think that I do jobs or tasks
automatically, without being aware of what
I'm doing.
More on
Implicit Bias
www.ncsc.org/ibeducation
www.projectimplicit.net
Pam Casey, et al., 49 Court Review 64 (2013).
Measuring Fairness
• Many courts (or judges) use the CourTools survey
prepared by the National Center for State Courts
(Measure 1: Access and Fairness)
– Sample questions (rate agreement on 1 to 5 scale):
• The way my case was handled was fair.
• The judge listened to my side of the story before he or she
made the decision.
• The judge had the information necessary to make good
decisions about my case.
• As I leave the court, I know what to do next about my case.
[Note: Among the suggested strategies for “checking
automaticity” are seeking feedback and fostering
accountability.]
Measuring Effectiveness
• Some courts have been willing to participate in
studies that measure the increase, if any, in
compliance with court orders from improved
perceptions of fairness
– One Example: Hennepin Co. (Minn.) DV study (2004)
• Higher fairness ratings correlated with greater willingness to
comply with court orders, even when the outcome was
unfavorable.
• “Receiving an explanation from the bench made the biggest
difference in terms of satisfaction for litigants who had a full
trial and this effect was even stronger for those who did not
get what they asked for from the court.”
– We need more courts to allow social scientists to
measure effectiveness and report results.
More Data Will Be Reported Soon
at ProceduralFairness.Org . . .
P
Proceduralfairnessblog.org
• The Courthouse Environment
The Courthouse Environment
• Make your goals clear.
– Everyone who comes to court should go away feeling
that they have been listened to and treated fairly.
• Adopting fairness measurements—and repeating
them over time—shows the priority.
• Work on skills improvement together with staff.
– HRDQ has a “Learning to Listen” program (available on
the web or in a booklet) that could be done by judges,
staff, or both together.
– What courthouse couldn’t use better listeners?
See you next year
in Las Vegas . . .
Alan,
Steve & Kevin