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Excerpted From: Bernice B. Donald, Implicit Bias: The Science, Influence, and Impact on Justice, 22 Sedona Conference Journal 583 (2021) (151 Footnotes) (Full Document)

BerniceBDonaldWalking, answering the phone, drinking a hot beverage, driving a car, eating out--every day we do many of these things with little conscious effort. When we see steam coming from a hot beverage, it takes little time to process the information to determine its meaning; we know from past experiences that steam coming from a beverage means we should proceed with caution. Phones come in many forms, yet we know when the landline phone on our desk, or the almost-obsolete wall-mounted phone in our kitchen, or the computer-like, rectangular, handheld device rings, we should answer. When walking, we need not analyze each obstacle on the sidewalk to determine how to proceed. When driving, our brain has milliseconds to process information and tell our body to react to avoid collision. When we see something barreling toward us, we know instantly to avoid the object. There is no time to consciously think about what the object may be, how fast it is traveling, or where it came from; we act immediately. Whether at a fast-food restaurant or an elegant establishment with refined cuisine, we have a general idea how to act when we walk in. Does one go directly to the counter or wait to be seated? In each of these scenarios, we know how to respond each time--without thinking--based on our past experiences dating back as far as early childhood.

The human body sends 11 million bits of information per second to the brain for processing, yet the conscious mind can process a mere 50 of those bits in the same amount of time. What happens to the 10,999,950 bits of information that our conscious mind does not process? Researchers conclude that the vast majority of processing is accomplished outside of the conscious mind and the body's direct conscious control.

According to the American Academy of Family Physicians, automatic cognitive processes shape human behavior, beliefs, and attitudes from a very young age. As we grow, the processes transform according to personal life experiences, family upbringing, and information absorbed through media. These cognitive processes help determine how humans filter perceptions, decision-making, and systematic errors in judgment. The cognitive process also results in a preferential ranking and grouping of our peers and others in our community.

Attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious way are defined as implicit or unconscious bias. Mahzarin Banaji and Anthony Greenwald coined the term “implicit bias” in 1995. They argued that social behavior is largely influenced by these unconscious associations and judgments--those other 10,999,950 bits of information (per second) that our conscious brain is not capable of processing.

Cognitive science research reveals that our automatic nervous system triggers unconscious frameworks of thinking that, in turn, influence our otherwise neutral, logical, and reasoned judgments. The brain processes information via schemas, which are templates of knowledge that assist us with organizing data into broader categories. For example, “when we see a figure with four equal sides, we quickly recognize that figure to be a square without giving much thought.”

These schemas are “important and helpful because they allow us to function without unnecessarily expending mental resources.” Schemas apply not only to objects, shapes, or behaviors, but also to human beings. Our brains naturally assign people into various categories “divided by salient and readily accessible traits, such as age, gender, and race.” Just as schemas help us walk and drive, our brains create schemas and implicit social cognition, which can guide our thinking and action. These schemas develop not at once and not from one source, but rather over time through culture, direct or indirect messaging, and past experiences. The sources of these schemas can be our parents, family, friends, school, and media, among infinite other sources.

Beyond relying on schemas for daily activities, research on implicit bias identifies several other conditions in which individuals are likely to rely on their unconscious behaviors. These include situations that involve ambiguous or incomplete information; the presence of time constraints; and circumstances in which our cognitive control may be compromised, such as when we are fatigued or have too many other things on our mind.

We are continuously exposed to certain identity groups paired with specific characteristics, and we begin to automatically and unconsciously associate the identity with the characteristic, whether or not that association finds any basis in reality. Without schemas, we would not be able to process as efficiently or effectively the “vast amount of sensory data” we obtain on a daily basis. Reliance on schemas our brain has created from past experiences or other sources is a natural occurrence, though this reliance can (and often does) lead to inaccurate and biased judgments. We are taught to be aware of our surroundings when walking alone or at night, and we therefore might react with caution when we see someone approaching us, but do we act differently depending upon what type of person approaches us? White, black, male, female, tall, short, old, young, person with a disability--do we change our reaction based on any of these characteristics? For many, the answer is yes. Though unfortunate, these differing reactions are entirely human. Implicit bias is a result of those learned schemas from our environment, society, media, and other sources. How would one describe a drug dealer from a movie? What type of person comes to mind in the first split second? What about a professional football player, astronaut, or doctor? Our past experiences continuously and unrelentingly shape our unconscious decisions.

A person's actions or comments based on implicit bias may be discriminatory but not necessarily intentional. Explicit biases are attitudes and stereotypes that are consciously accessible through one's own conscious, while implicit biases are not consciously accessible and are experienced without awareness. Explicit bias can be somewhat easy to recognize because it is “deliberately generated and consciously experienced as one's own belief.” Common examples of explicit biases can be overt acts of racism and racist comments.

Implicit bias, however, does not require animus but instead only familiarity with some stereotype. Nevertheless, implicit bias can be just as problematic as explicit bias because both can cause prejudice against a marginalized community. With implicit biases, individuals may not be mindful that their biases--rather than the reality of a situation-- influence their decision-making. By way of common example, implicit bias might make police officers automatically suspicious of two young African American males driving in a neighborhood where few African Americans reside. While much education on implicit bias has centered on race and ethnic backgrounds, it is important to note that there are many other implications of the unconscious judgment, such as gender, body type, and age.

The social science on implicit bias has grown tremendously, becoming a popular topic in judicial education. In the judicial context, education regarding implicit bias is critical because evidence from fields such as cognitive psychology suggests “that people can and do make decisions about others via cognitive mechanisms operating outside of their awareness.” Since a judge's primary role is to make decisions impacting others while sustaining objectivity, it is essential that judges understand both the existence of implicit biases and ways to counteract them.

[. . .]

When studying a foreign language, it is often said that the best way to learn is to expose oneself to the culture to understand what makes it unique; the same logic applies when implementing techniques to combat implicit biases. To expose oneself in the educational sense means to become immersed in the topic. When people expose themselves to the first-person perspective of others, it can create a true impact in their understanding and treatment of others. Walking a mile in another's shoes can be as easy as taking the initiative to learn another person's life perspective. Gaining this exposure can come from spending time with groups of people outside of our own in-groups or immersing oneself in media (from movies to documentaries to virtual conferences) that allows the viewer to understand a different culture or point of view. We will not solve the negative effects of implicit bias overnight; rather, it will take years of increasing awareness, providing training and education, and enacting piecemeal changes that each solve one piece of the implicit bias puzzle.

At the 2015 Annual Meeting of the National Association of Bar Executives, Sharon E. Jones of Jones Diversity remarked that “you can disrupt your automatic pilot--which can lead you to act on your biases even if you do not intend to[.]” What remains for us to do is understand more specific ways that we can repel these biases. According to Jones, microaggressions can slip into language, images, and daily habits when we do not intend them to, but by implementing and encouraging implicit-bias training and awareness and its effect as a dialogue within the legal profession, the level of accountability and awareness will rise, and when accountability and awareness rise, the negative effects of implicit bias in our legal system will fall.

Judge Bernice B. Donald is a United States appellate court judge for the U.S. Court of Appeals, Sixth Circuit.

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