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Excerpted from: Isabel Bilotta, Abby Corrington, Saaid A. Mendoza, Ivy Watson and Eden King, How Subtle Bias Infects the Law, 15 Annual Review of Law and Social Science 227 (2019) (Literature List) (2 Footnotes) (Full Document)


BilottaCorringtonMendozWatsonKingPresident Lyndon Johnson played an important role in urging members of the House and Senate to support civil rights legislation. His remarks reflected a shared belief that equal rights might be achieved under the force of law. And undoubtedly, there has been substantial progress toward equality since the Civil Rights Act of 1964 was codified. The prohibition of discrimination on the basis of race, color, religion, sex, or national origin set a critical standard for equal rights.

Yet legal scholars and practitioners alike recognize that the American legal system is far from perfect. Equal rights laws do not ensure equal rights. Genuinely equal laws must be created and enforced, and infringements prosecuted and adjudicated, free from bias. But people--individual and collective actors-- are involved with each of these aspects of the law. And as human beings, these actors are inherently imbued with the biases that are cultivated in society. It follows that the creation and enforcement of laws, and the prosecution and adjudication of offenders, are necessarily imbued with the biases endemic to the human condition. Indeed, the recent Black Lives Matter (#BLM) and Me Too (#metoo) movements serve as visible and distressing reminders of the limitations of laws intended to ensure equal rights for people from a variety of disadvantaged backgrounds.

The purpose of this article is to highlight the challenges that a contemporary form of prejudice--that which is often unconscious and manifests in subtle ways--creates in the legal system. Synthesizing evidence from the sometimes-disconnected disciplines of law and psychology, we hope to not only identify important themes but also bring attention to understudied aspects of subtle bias in the legal domain. After describing subtle bias and its etiology, we identify and review three areas in which a substantial body of psychological research on subtle bias has emerged: law enforcement (policing), legal decision making, and the legal profession. With the ultimate goal of helping to shape legal scholarship and practice, we conclude with future recommendations.

Antidiscrimination laws have reduced the rate of overt discrimination in our country; unfortunately, however, they have not impacted the harmful emergence of subtle bias. Subtle bias is a discrete prejudice or preference toward a certain group, person, or thing that can drive one's decisions and actions. Biases are belief systems that can be extremely problematic to both the individual who holds the biased belief and the target or object of these beliefs. Biases begin to form at a young age and stem from our innate need to organize people and groups into social categories and assimilate them into our already-formed schemas. As we take in information about different kinds of races, ages, genders, and abilities, we begin to form stereotypes about each of these now “easily recognized groups”. These stereotypes can be either altered or reinforced based on the new information that we receive from our environments throughout our early development.

Bias can be broken into two types: explicit and implicit. Whereas both types of bias are ingrained in people through experience and exposure to socially shared stereotypes, the difference lies in the degree to which individuals are aware of their biases. Explicit biases are the beliefs that people consciously possess and intentionally express, whereas implicit biases are composed of well-learned associations that reside below conscious awareness and can automatically drive behavior in a manner that is inconsistent with one's personal attitudes. Implicit biases are most likely to influence major decisions when the person is working under time pressure, multitasking, or engaging in a competition (Kandola 2009). In these situations, people rely heavily on heuristics and less on logic, which allows implicit biases to come to the surface.

Both implicit and explicit biases are problematic because they often lead to discriminatory behavior, but we focus here on the pernicious consequences of implicit or subtle biases. When subtle biases are put into action, the result is generally subtle discrimination. Subtle discrimination refers to “negative or ambivalent demeanor or treatment enacted toward social minorities on the basis of their minority status membership that is not necessarily conscious and likely conveys ambiguous intent”. In contrast, overt discrimination is obvious and intentional mistreatment based on one's social identity group. Interpersonal discrimination is one of the forms in which subtle bias can manifest as subtle discrimination. Interpersonal discrimination can be reflected in less eye contact, shorter interactions, and colder facial expressions . Another way that subtle biases can manifest is in the form of microaggressions, which are “brief and commonplace daily verbal, behavioral, or environmental indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative racial slights and insults toward the target person or group”. It is important to note that the subtle discrimination that emerges as a result of implicit biases is just as harmful as overt discrimination, if not more so, because the target is more likely to internalize the experience than to discount it as discrimination.

The legal field is an area in which the biases that plague the human condition can have critical consequences. When a juror, police officer, or law school professor holds or enacts such biases, a range of detrimental consequences can emerge. Luckily, people can reduce their biases with strategies like increasing awareness and perspective taking and education. In the follow sections, we describe evidence regarding the effects of subtle biases on the legal field and the ways that we can reduce this problem.

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Subtle biases can infect human thought and behavior, the ultimate result of which can be massive discrepancies in the life trajectories of women and people of color. These dynamics emerge across American society, and--despite beliefs in the fundamental objectivity of the law--the legal field is no exception. Here we have reviewed evidence that bridges legal and psychological scholarship to demonstrate that subtle biases can give rise to unequal treatment in law enforcement, legal decision making, and the legal profession. We have further highlighted evidence-based strategies for reducing bias and its consequences. In so doing, we hope to provide useful information that responds to contemporary social movements and provokes genuine change.

These authors contributed equally to this article, and authorship was determined alphabetically

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