Illinois Supreme Court Committee on Equality on implicit bias in the courts
Professor Cynthia Lee of the Kirwin Institute at Ohio State University states in The Primer on Implicit Bias that, “implicit bias refers to the attitudes of stereotypes that affect our understanding, actions and decisions in an unconscious manner.”1 An example of this phenomena is when you see an African American male walking down the street wearing a hoodie. You instinctively think that he is a criminal and may try to rob you, so you immediately cross the street. In reality, he is just a teenager going to the store to buy candy and a soda. Systemic implicit bias refers to the way racial bias has become infused with purportedly race neutral legal theories, such as retribution or rehabilitation and jurisprudential approaches to well-considered constitutional doctrines.2 In the criminal justice system, systemic implicit bias permeated every facet of the process from the police encounter to being charged and plea bargain, to trial and sentencing. 3 This is born out in the news every day. People of color are treated as dangerous criminals, even for the smallest infractions such as a traffic violation or selling cigarettes on the sidewalk. Oftentimes, the police act as judge, jury and executioner. Just ask the families of Michael Brown, Trayvon Martin, Eric Garner and Sandra Bland, to name a few. Because people both possess automatic associations that devalue Black lives relative to White lives and associate Black Americans with a need for punishment, bias enters into the system at the earliest stages- at the time when policy-makers are considering questions of where to police and how aggressively, and why to punish and by how much.4 In the justice system, minority groups consistently report the feeling that the courts treat them unfairly and worse than their white counterparts.5 Unconscious preconceptions of those involved in the legal process, including judges, attorneys, and jurors, can be detrimental to the public’s assessment of the judiciary as a system that is fair, unbiased and transparent.6
The very elusive question is this: How do we eradicate systemic implicit bias in the justice system? How do we create a justice system where everyone, regardless of race, ethnicity, gender, socioeconomic status, etc. are treated equally and fairly? In 2013, there was a discussion at the Future of the Courts Conference of the need to address public perceptions of fairness and equality in the actions of the judicial branch.7 As a result of that discussion, the Illinois Supreme Court formed the Committee on Equality that was charged with promoting equality and fairness in all aspects of the administration of justice in Illinois Courts. The Committee on Equality consists of a diverse pool of judges and lawyers appointed by the Supreme Court from across the state. Supreme Court Chief Justice Rita B. German proposed that, “all litigants, witnesses, jurors, and members of the public should appreciate that our courts are free from bias and prejudice and that cases are decided purely on the basis of the law and the particular facts of each case.”8 Trying to debias the court systems in Illinois is a huge undertaking but a necessary one. The Illinois Supreme Court should be commended for its forward thinking in attempting to achieve this enormous goal. If successful, it is hoped that the methods developed by the Committee on Equality can be adapted in every aspect of the justice system, thereby eliminating, or at the very least, greatly diminishing the effects of implicit bias.
1. William A. Allison, Addressing Implicit Bias Issues in the Justice System, Chicago Daily Law Bulletin (2015).
2. Justin D. Levinson and Robert J. Smith, Systemic Implicit Bias, 126 Yale L.J. 408 (2017).
3. Id. at 415.
5. Justice Michael B. Hyman, Implicit Bias in the Courts, 102 Ill. B.J. 40 (2014).
7. Press Release, Supreme Court of Illinois, Illinois Supreme Court Forms Committee on Equality (July 2, 2015), available at www.illinoiscourts.gov/Media/PressRel/07022015.pdf.
8. Id., note 7.