We must end bias in the justice system. Here’s one answer

By Sydney Kamlager-Dove, Special to CALmatters

Actresses Felicity Huffman and Lori Loughlin, and nearly 50 other privileged elites, are charged with committing fraud for their roles in cheating their children’s way into prestigious universities.

If they are convicted, does anyone truly expect these wealthy, white defendants to suffer the legal punishment handed out to poor, darker-skinned people who run afoul of the law?

Injustice, in the form of implicit bias, is inherent in the justice system.

Consider Tonya McDowell’s experience. In 2012 the black homeless Connecticut mother was sentenced to five years of incarceration for using a babysitter’s address to register her son in an elementary school in a district where she didn’t live. Prosecutors accused McDowell of stealing $15,686 worth of education, and the judge ordered her to pay restitution.

Or maybe you recall William Jefferson, the former congressman from Louisiana who is black. He was convicted in 2009 of bribery and corruption and sentenced by U.S. District Judge T.S. Ellis III of Virginia to 13 years in prison. It was the longest sentence ever slapped on a member of Congress.

Ellis is the same judge who ordered President Donald Trump’s campaign manager, Paul Manafort, to serve fewer than four years in prison despite federal sentencing recommendations of 19 to 24 years. Ellis commented that Manafort may have violated numerous laws but he otherwise had led a “blameless” life. The judge could have added that Manafort also is white and connected politically.

McDowell and Jefferson weren’t anomalies. Studies reiterate what we all know from personal experience. Prejudice is everywhere.

A survey of data from the U.S. Sentencing Commission in 2017 found that when black men and white men commit the same crime, black men on average receive sentences almost 20 percent longer.

We all have biases. We need to stop pretending that we don’t act on our perceptions. Most of us prejudge, even if those prejudices are unintentional. Decades of research shows that we possess subconscious biases that affect our understanding of situations, our reactions and our decisions.

Studies also show that implicit biases are pervasive in the legal system. Judges may aspire to fairness and impartiality, as they promise in their oaths of office, yet they harbor implicit biases influenced by their experiences and beliefs. Research from 2017 shows that trial court judges may rely on intuition, rather than deliberative judging, when deciding matters before the bench. A study published last year in Social Psychological and Personality Science shows that judges may be just as biased or even more biased than the general public in deciding court cases in which traditional gender roles are challenged.

Attorneys are human, too. A prosecutor has discretion when charging a suspect with a crime. Empirical research shows that prosecutors are more likely to charge black suspects than white suspects in comparable circumstances. Similarly, public defenders may work harder for a defendant that they perceive as more educated or likely to be successful because of race, gender or socioeconomic status.

The good news is that studies also reveal that as people become aware of their unconscious biases, and are reminded of them regularly, they can correct themselves. This is why I’m sponsoring Assembly Bill 242 to mandate implicit bias training every two years for judges, attorneys and other court personnel. I am calling it the B.I.A.S. Act, Breaking Implicit Attitudes and Stereotypes in the Justice System.

The creation of a standardized model of implicit bias curriculum as part of already mandated continued legal education is essential to improve fairness in the court system. This training would allow court professionals to understand their decision-making process and prevent discriminatory behavior in the execution of their work.

The struggle against prejudice in the court system, in all of its many forms, will take courage and perseverance. We can move to a more equitable distribution of justice only when we acknowledge unconscious bias and take steps to reduce it–one policy at a time.


Assemblymember Kamlager-Dove is a Democrat who resides in Culver City and represents the 54th Assembly District, [email protected]. She wrote this commentary for CALmatters.

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