Implicit Bias and Challenges to Fairness: Should you Trust Your Gut in the Heat of the Moment? © 2010 All rights reserved American Judges Association Annual.

Implicit Bias and Challenges to Fairness: Should you Trust Your Gut in

American Judges AssociationAnnual Conference

October 4, 2010

J. Robert Lowenbach, JDDistrict Court Judge, Ret.

Jack J. Gardner, Psy.D.Licensed Psychologist

October 4, 2010 Life & Death Decisions 2

Judge's decision to let molester post appeal bond is criticizedA man who faces a five-year prison term for molesting a teenage girl can be released on $1 million bond while he appeals the conviction. That judicial decision drew strong criticism from the girl's father.

Tulsa WorldJune 15, 2007

Judge Criticized After Allowing Children to Stay With Parents Convicted of Child AbuseSome Asking Oklahoma Judge to Step Down

News 9 – Oklahoma City

Goals• Understand Decision Making Processes

• Consider Effects of Bias in Decision Making by analyzing discretionary decision points

• Improve Decision Making Capability

• Provide a non-legal “Tool Kit” for Decision Making

We Make Decisions Every Day• Day to Day Decisions

– Purchases– Food Choices– Which route to take to the grocery store

• More Complicated Decisions– Business Decisions– Who goes to prison and who gets probation– Whether to grant or deny a motion for summary

judgment

2 Types of Decisions• Emergency Decisions

(Biological Imperative)

• Fire• Tsunami • Earthquake

• Tornado• Imminent risk to life of limb• Imminent risk to safety of child

• Non-Emergency Decisions(Time to contemplate)– Sentencing – Admission decisions– Motion for New Trial– 35(b) and (c) Motions– Treatment Issues

Perhaps there is a 3rd type of Decision(Time Sensitive but Not Biological Imperative)

• Ruling on evidentiary objections

• Temporary Restraining Orders

• Agreeing to bond/Setting bond/seeking revocation of bond

• Motions on suspension of parenting time or custody under 14-10-129(4)

• Whether to confront a suspicious person

We have to make decisions every day about – • how we choose to think;• how we choose to feel; and• how we choose to behave

Hypothetical Case Scenario

Facts:

Issues:

• Who should get custody?

• What parenting time should be ordered?

• Should parenting time be supervised?

• Should father or mother be required to surrender their passports?

• How to make the best decisions possible in emergency/time sensitive . . . situations

and . . .

• How to make the best decisions possible in Non-Emergent/time flexible . . . situations

Play Videohttp://www.youtube.com/watch?v=ixUbdeXCp0M

• Prejudice in favor of or against one thing, person, or group compared with another, usually in a way considered to be unfair

ABA Model Code of Judicial Conduct 2007 Canon 1

RULE 1.2 A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

RULE 2.3 Bias, Prejudice, and Harassment (A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice. (B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

RULE 2.3 Bias, Prejudice, and Harassment (C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

Facts:

Bias Influences Every Decision We Make

Bias is linked to emotions. Fear is a powerful motivator.

• Explicit (the biases we can identify and try to override)

• Implicit (the biases we don’t know we have that effect/direct our decisions)

Quick Test

• Look at the next slide for 20 seconds– Write down five observations– Write down a one sentence decision regarding

one of the children

–Write down five observations

–Write down a one sentence decision regarding one of the children.

–Keep this for later.

The Decision Process

Definition: de·ci·sion

• The process of coming to a conclusion or determination about something

– Something that one chooses or makes up his/her mind about after considering other choices

• Firmness in choosing something– The ability to choose or decide in a

clear and definite way without much hesitation or delay

Factors Driving Decisions • Sensory experience

– Sight/Visual– Sound/Auditory– Smell/Olfactory– Tactile/Feel– Gustatory/Taste

• Emotional Experience

• Cognitive Process

How much information do you need to make a good decision?

Can too much data be misleading?

•98 MRI’s studies sent to doctors•Diagnosed 2/3 of patients as exhibiting “serious problems”

•Bulging, protruding, or herniated discs•Nearly 90 percent of these patients exhibited some form of “disc degeneration”

The Kicker: These patients had experienced NO BACK PAIN OR RELATED BACK PROBLEMS!

October 4, 2010 27Life & Death Decisions

Facts:

Brain Involvement

October 4, 2010October 4, 2010 Life & Death DecisionsLife & Death Decisions 3030

Pre-frontal Cortex

Amygdala

ThalamusThalamus

Sensory Cortex

Hippocampus

Cortex

Sensory Thalamus

Amygdala Basic Neurobiology of Emotions/Fear

Dr. David Lisak, University of Massachusetts, Boston

The “high” road

The “low” road

SNAKE?

Phew! Vine

SNAKE!

Heuristics

• Stereotypes, thought patterns, groups of memories that organize our thoughts

• Heuristics are thought short cuts

• These may be conscious or unconscious

• Many biases are based on heuristics

Heuristics

Factors that may result in better decisions?

• How do I feel about this?

• What do I think about this?

• My decision is________.

Facts:

Components of a Decision• Emotional

– Subtle– Unconscious– “Stupid Brain”– Instant or very quick

Components of a Decision

• Cognitive– Explicit– Conscious– Often procedure driven– Often have predictable outcome– A slow process

The Stroop Test

YELLOW BLUE ORANGEBLACK RED GREEN

PURPLE YELLOW REDORANGE GREEN BLACK

BLUE RED PURPLEGREEN BLUE ORANGE

Heuristics

Good News!

• Although we are slower in giving our answers, we can be much more accurate by considering all of the options

• If we are motivated and if we recognize that we are making errors we can correct our mistakes and act in a just and ethical manner

What type of decisions to you prefer?

• Emergent (Time Sensitive)

• Non-Emergent (Time Flexible)

Quick TestTrue or False

1. All people have biases.2. Biases are unconscious.3. There are no subtle biases. 4. Biases are explicit.5. Education reduces bias. 6. All decisions reflect an individual bias.7. I have biases.8. Relationships influence bias.9. Biases influence decisions.10. Biases influence actions.

Implicit Association Testwww.implicit.harvard.edu

• Unconscious (implicit) associations influence our decisions

• We make connections much more quickly between pairs of ideas that are already related in our minds than we do between pairs of ideas that are unfamiliar to us

Male FemaleJohn

Male Femaleor or

Career FamilyLisa

Laundry

Entrepreneur

Merchant

Cooking

Male Femaleor or

Family CareerSarah

Merchant

Employment

Laundry

Domestic

Entrepreneur

See No BiasShankar Vedantam

• http://www.washingtonpost.com/wp-dyn/articles/A27067-2005Jan21.html

Facts:

Personal Variables Affect Decision Making

• Gender (Decision maker and Subject of decision)• Learning History

– Abuse– Wonderful Childhood– Alcoholic Parent– Nurturing Teacher– Integrated/segregated schools– Racist parents/Tolerant Parents

• Educational Level• Training Reduces Bias• Race of person about whom decision is made• Awareness of self

Play Videohttp://www.youtube.com/watch?v=ybDa0gSuAcg

Types of Bias

Group Decision

• May add to poor decisions– Avoid the herd mentality– Avoid Group Think– It’s tough to be an iconoclast– It takes courage to make tough decisions

Preventing “Group Think”

• Leadership

• Openness to the ideas of others

• Internal confidenceof group members

• A healthy, problem solving atmosphere

Categorization

• Social categorization –– Identifying people as belonging to racial,

ethnic, gender, religious and other types of groups

In-group Favoritism and

Out-group Derogation

• We have a tendency to favor our own groups.• We have a tendency to discriminate against (e.g.,

allocate fewer resources to, behave aggressively toward) groups to which we do not belong.

• Overestimate similarities within groups and differences between groups.

Stereotypes

• Beliefs about the traits or attributes typical of particular groups

• Stereotypes can be positive or negative• Vary in degree of accuracy• Even “accurate” stereotypes about groups are

likely to be unreliable and unfair when used to judge an individual.

Facts:

Rationalization

• Attempt to “make sense of” inequities in society• People don’t like to believe in an unjust world.• If something bad happens to someone we tend to

believe the person somehow deserved it. (Unconsciously blame the victim).

Rationalization

• Believe that groups low in status or actively oppressed must possess some trait that is responsible.

• These beliefs are even held by those who are in the low status group.

Confirmation Bias

• A type of selective thinking• A tendency to notice and to look for what confirms

one's beliefs and

• to ignore, not look for, or undervalue the relevance of what contradicts one's beliefs.

Confirmation Bias

• fMRI demonstrates areas of brain used in confirmation bias is driven more by emotion than thought.

Unconscious Bias

• Implicit memory– Most of what we “remember” is outside of

conscious access.

• Implicit Memories are linked to Implicit Biases

Implicit Bias

• How the studies are done– Test subjects are shown a “prime” - a photograph of a

white or black person or an attractive or unattractive person

– The exposure is for .013 seconds. Subjects often report they did not see the picture and will have to guess.

– They are then shown a word in white text on a black screen and timed on how quickly they could classify the word as either good or bad.

Implicit Bias• White people are faster to judge positive words as

good when proceeded by White-related primes• This occurs despite subjects’ claims that they are

not biased. • Theoretically, implicit biases reflect stereotypes

and prejudices people truly do not know they have.

• The biases are unintended but capable of leading to discriminatory or even deadly behavior.

Implicit Bias - Police Studies

• Subjects: College Students; Semi-Random Sample of Citizens.

• Subjects in a simulated police activity are presented with images of men holding either guns or harmless objects (cell phones, pop cans or wallets)

• Told to “shoot” only when target has a gun

• Subjects forced to make split second decisions are faster to “shoot” for a gun if the image is of a Black man than if he is White.

• Faster to make the safe (no shoot) response if target is a White than if Black.

• More likely to erroneously “shoot” a Black man than a White man if he is not holding a gun.

• "[Participants] set a more lenient criterion to shoot for African-Americans than for whites."

• This tendency was seen not just among Caucasian players, but also among players self-identifying as Black or Hispanic

• Studies indicate new police recruits behave the same as student subjects

• Police officers' training not only affected whether they chose to fire at a target, but made them less likely to shoot on the basis of race.

• If anyone is trigger-happy for minorities, it's society at large.

Issues:

• Who should get custody?

• What parenting time should be ordered?

• Should parenting time be supervised?

• Should father or mother be required to surrender their passports?

Decision-Making Tool Kit

I’m aware of my biases and I want to do the right thing!

De-escalate

• When ever possible alter a situation Or

• Your PERCEPTION of the situation• From

– An EmergencyTO

– A CrisisTO

A Situation

• We all deal with situations every day.

• Try to make everything a situation.

Opposite of Bias

• Thoughtful

• Careful

• Fair

• Objective

Decrease Bias

• Increase Accountability- the more accountable, the less likely to rely on stereotypes

• Avoid Time Pressure

• Maintain Vigilance from the start

Decrease Bias

• Decrease Confirmatory Bias. Look at lots of data from all sides of the issue

• Be willing to change your mind (flip-flop)

• Avoid “Group Think”

• Seek Consultation on hard cases

• Utilize protocols and procedures when ever possible

Decrease Bias

• Move faster on reversible decisions,

s l o w e r on i r r e v e r s i b l e decisions.

• Use “snap” decisions only when required, and then only sparingly. (consider other possibilities – but know that your ‘gut’ may be reliable)

Decrease Bias

• Emotions are part of decision making. Don’t decide on the basis of fear or aggression but rather on the basis of compassion and competence.

• Educate yourself to your task. The better ‘blinker’ is the one with the most training.

Decrease Bias• To decrease negative bias utilize empathy

by allowing at least a vicarious relationship about the person or family you are making a decision about. Decrease antagonism and disconnection. (Caveat: This may create reverse bias that leads to poor decisions. This allows the decision maker to error in a more benevolent direction.)

Decrease Bias

• Write down your ideas and look at your notes before making a final decision.

• Be aware of values directing decisions (i.e., protection of the community, best interests of the child; efficacy of rehabilitative process; due process; holding the guilty accountable, etc.)

Contact Information• Jack Gardner, Psy.D

Greeley Counseling Center1228 8th St, Greeley, CO 80631 (970)356-8482drjackg@mac.com

• J. Robert Lowenbach, JDBest Practice Courts Judge in Residence2559 55th Avenue, Greeley, CO 80634(970)302-7416robert.lowenbach@judicial.state.co.us

Implicit Bias and Challenges to Fairness: Should you Trust Your Gut in the Heat of the Moment? © 2010 All rights reserved American Judges Association Annual.

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