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Sarah Redfield Shines Light On Hidden Bias In The Courtroom

By Aebra Coe | December 16, 2018, 8:02 PM EST

Sarah Redfield is an evangelist when it comes to addressing unconscious bias in the judicial system.

The University of New Hampshire law school professor travels around the U.S. speaking about and training lawyers, judges and court staff on strategies for interrupting implicit bias in the decision-making process.

Redfield focuses her research on diversity and inclusion in the legal profession, and in recent years that scholarship has led to extensive work on her own and on behalf of the American Bar Association exploring the ways in which implicit bias affects lawyers, judges and the entire justice system.

Redfield is editor of the ABA's book "Enhancing Justice: Reducing Bias" and was a lead author for the ABA section on litigation's Toolbox on Implicit Bias and lead consultant for the ABA project on achieving an impartial jury.

Here, Redfield discusses the effects of bias on justice in the U.S., the strategies that are being used to combat it, and the eagerness of judges to achieve a fair result in the courtroom.

What role does judicial bias play in access to justice?

Americans for a long time have viewed justice as being available to different groups in different ways. There are some significant studies done by the American Bar Association and others; the most significant one is from 1999, showing that people of color do not believe that they receive justice in the same way others do. This is a threat to the entire judicial system and its integrity.

But bias has two meanings. One is explicit bias that we state and implicit bias that's unconscious with us but nevertheless plays into results.

In what ways does implicit bias enter into judicial decision-making?

One of my colleagues, Judge Mark Bennett, who was a co-author on a book on implicit bias, asked this question: Where does implicit bias appear in the criminal justice system? And the answer is everywhere. The impact is on everyone and everywhere. I think that's accurate.

There is a lot of data on every stage of the justice system starting early, from whether you are referred to law enforcement, all the way to death penalty sentences that show huge disproportionalities that are hard to explain. And one explanation for them is implicit bias, that decision makers are implicitly biased while acting in good faith and an accumulative result is this disproportionality that is hard to explain otherwise.

Who is being hurt by implicit bias in the court system?

I think we all are. The person we might think of as the recipient of implicit bias, the person who is receiving a harsher sentence because of his or her skin color is obviously hurt by implicit bias. But I think the entire society is hurt by it as our institutions suffer from not being as fair as we might be in these situations.

ABA Resolution 121 urged courts to engage in de-biasing training. Why is that training important and what exactly does it involve?

The training is important if we're going to change the kind of picture you and I have just been talking about and bring about more individually fair outcomes in our judicial system.

What it looks like varies. And it's an issue as to what constitutes valuable training.

For example, if you invite me to give a one-hour presentation somewhere about implicit bias it doesn't count as training. That would be an introduction to becoming aware of implicit bias. You would have the vocabulary, you would hear a few examples, you might be less threatened by the idea of implicit bias because we are all implicitly biased because we are all human. But it wouldn't give you strategies for interrupting the bias. It depends on who is doing the training and how much time is invested in it.

What might be examples of a bias interrupter in a courtroom?

They could range from a really simple commitment by the decision maker to call everyone by their title, for example "mister" as opposed to by their first name, including the defendant. That would be a really simple one.

Others that would be a little more in-depth include the use of a checklist so that the decision maker checks off for him- or herself that certain points have been considered and assumptions haven't been made.

How open do judges and court employees seem to be to receiving this training?

They're really open once they get there. People's' tendency is to say, "Bias training? But I'm not a racist or a sexist. I don't need this." But at the same time these are people whose very job description is to be fair.

My experience working with judges is they want to have the training. If they don't start from a place where they're being called racist, if they start from a place of no blame, I'm human, I have implicit biases, then they really want to be in that training, they really want to talk about the strategies, they really want to know how to be more fair. And that doesn't surprise me. They are so committed to that ideal of fairness.

What is your hope for the next five years in this area?

My goal is pretty straightforward, and that is to continue to educate as many folks as I can about implicit bias and its impact on their decisions and thus the people they deal with.

When I look back on my career as a woman attorney and woman professor, I'm quick to say if I'd known then what I know now about people's responses to me, I'd have had a different career. Because I would see things that I found, what we would call negative micro-messages, that were not intended to put me in a lesser place, but which I interpreted that way. Now I look at those and know they were not about me, they were about people not understanding what messages and biases they were showing.

I think if folks begin to reflect on the impact of bias on themselves and other people they deal with, then we can see some change. My goal is to keep educating people on how to bring that change about.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Brian Baresch.