Implicit racial bias and public defenders

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Date: Fall 2016
From: Georgetown Journal of Legal Ethics(Vol. 29, Issue 4)
Publisher: Georgetown University Law Center
Document Type: Article
Length: 6,799 words
Lexile Measure: 2250L

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INTRODUCTION

African American men are significantly more likely to be incarcerated than either white or Hispanic men, and throughout the American criminal justice system, black Americans face a significantly greater chance of arrest, conviction, sentencing, and incarceration than white Americans. It is likely that soon, one third of African American men will have spent time in prison. (1) While there are many reasons for this disparity, implicit racial bias plays a role at each stage of the criminal justice system. From investigation through arrest, plea negotiation and trial, those responsible for keeping the peace and administering justice must make decisions rapidly, and with imperfect or incomplete information. In that context, implicit racial bias results in significant disparity in racial outcomes. (2) The effects of implicit racial bias tend to be most pervasive in situations where an overworked and overburdened individual must make a decision that impacts an individual of a different race. While it impacts many individuals at all levels of the criminal justice system, the effect of implicit bias on the work of public defenders, as they struggle to manage challenging caseloads, is especially noteworthy. Public defenders across the country are burdened by unrealistically heavy workloads, requiring them to triage and make complex decisions rapidly and often without all relevant facts. Unbeknownst to them, they often are influenced by subconscious bias as they make these decisions.

This Note will seek to define the problem of implicit racial bias and its impact on defendants represented by a public defender, and shall seek to identify ways to mitigate these problems. Part I of this Note will introduce the idea of implicit racial bias, and Part II will discuss the studies on the impacts of implicit racial bias in the criminal justice system. Part III of this Note will examine why implicit racial bias poses a particular problem in public defender offices. In Part IV, this Note will discuss ways to reduce the impact of implicit racial bias on defendants represented by a public defender, including an examination of current ethics rules, and proposals for specific implicit racial bias training for public defenders.

It is possible to mitigate the negative impacts of implicit racial bias on black defendants by combining a series of tactics, including a reduction in public defender caseloads, amending ethics rules to better address the tension between voluminous caseloads and the duty to provide effective representation, and enhanced training for public defenders with a focus on the issue of implicit racial bias. While there is no single solution to the problem of implicit racial bias in public defender offices, a combination of these efforts should serve to reduce the impact that implicit racial bias has on black defendants who are represented by a public defender.

I. WHAT IS IMPLICIT RACIAL BIAS?

As trial consultant Richard Gabriel described, our ability to accept people whom we perceive to be different from ourselves is a recent development in human history. Gabriel notes that our suspicion of "the other" has dominated human history. (3)

Implicit bias refers to the "relatively unconscious and relatively automatic feature of prejudiced judgment and social behavior." (4) The study of implicit racial bias is closely connected to the study of discrimination law, (5) and has been developed relatively recently. (6) The study of implicit bias focuses on the attitudes that impact the decision-making and behavior of an individual, without the individual being aware of the impact or its source. (7) Implicit racial bias is the collection of unconscious associations we make about racial groups, (8) and may be contrasted with associations and reactions based on our explicit beliefs and conscious intentions, when we are aware of their reasons for a particular action. (9)

As with other unconscious processes of the brain, these associations are not planned, conscious responses--they are unintentional, involuntary and subconscious. (10) Numerous studies tell us that the impact of implicit bias is felt on a large scale, (11) affecting many sectors of human interaction. Some of these studies have demonstrated that implicit bias can influence and predict real-world interactions. (12)

Implicit bias can often cause an individual to act in a way that is inconsistent with his or her overt beliefs or principles, (13) often unbeknownst to the individual. These "dissociations" are often apparent in an individual's conduct toward groups defined by race and sexual orientation. (14) Implicit bias does not always reflect the individual's general attitude toward a particular racial group. One may have a positive conscious attitude toward a particular racial group but nevertheless have a negative implicit association for that same group. (15) Even a conscious awareness that one's implicit bias may guide one's conduct in inappropriate directions does not insulate the individual from the impact of that bias. (16)

The Implicit Association Test (IAT) seeks to identify and reveal implicit biases. (17) The test measures implicit reactions by examining associations the test subjects are unaware they make. (18) When the test is used to detect implicit racial bias, test-takers are tasked with rapidly sorting a series of faces as either "African American" or "European American" at a rapid pace while simultaneously tasked with sorting words such as "joy" and "anger" into categories "good" and "bad." Test-takers who are faster at sorting negative words when those words are paired with photos of black individuals, or who are faster at sorting positive words when those words are paired with images of white individuals are more likely to be affected by bias. (19) Tests such as the IAT have found that very few individuals are not affected by implicit bias, (20) and that in fact such bias is widespread and impacts a large range of affected individuals' interactions. From 2002 to 2012, more than two million people took the IAT through Harvard's Project Implicit. (21) The data indicated that white test-takers from every U.S. state demonstrate implicit racial bias, with higher levels of bias detected among white test-takers in southeastern states. (22)

II. IMPACTS OF IMPLICIT RACIAL BIAS THROUGHOUT THE CRIMINAL JUSTICE SYSTEM

Implicit racial bias impacts virtually every area of human interaction. Findings have indicated that doctors reviewing patient histories were less likely to recommend valuable procedures to black patients than to white patients with virtually identical medical files. (23) White customers shopping for used cars got more advantageous deals than did black customers, white prospective renters received higher response rates than black prospective renters, and white constituents had a higher response rate from state legislators in both parties than did black constituents. (24) However, the impact of implicit racial bias is especially problematic in the criminal justice system--where its effects are felt at almost every level of the system, and the overall impact of the bias is therefore magnified.

A. IMPLICIT BIAS IN POLICE ENFORCEMENT

Implicit racial bias has an impact across the criminal justice system, and studies indicate that such bias has a strong effect on police conduct, and impacts each stage of police interaction, including whether and how a police officer decides to stop, frisk, interrogate, and arrest an individual. (25) Implicit racial bias is thus a factor contributing to racial disparity within the criminal justice system. (26) Research indicates that officers are impacted by their implicit bias even when performing tasks that do not require interaction with others, such as visual surveillance and recall. (27) Although statistical data indicates higher incidents of certain crimes among certain racial groups, (28) these higher crime rates do not fully account for the racial disparity in arrest rates.

Two areas of law enforcement where racial disparity is particularly pronounced are the enforcement of traffic stops and enforcement of drug laws. (29) A 2011 study showed that although white, black, and Hispanic drivers may be stopped at similar rates, black drivers were three times more likely than white drivers to be searched when stopped, and were also more likely to experience threat or force by police during the stops, an indication of the racial associations--some explicit but many implicit--held by many police officers of black individuals and dangerous behavior. (30) Studies on juveniles have shown that although white juveniles in a sample group may be more likely to have used drugs than black juveniles, (31) black juveniles are arrested for drug related crimes at much higher rates than white juveniles. (32) Among the most well-known examples of racial bias leading to racial disparity in law enforcement is reflected in the class action litigation against the NYPD for its stop-and-frisk policies, with a federal district court judge mandating revised policies in order to comply with the Fourteenth Amendment's requirement of due process. (33) One possible reason for such prevalent racial bias in police departments is the fact that police departments are often disproportionately more white than the communities they police. (34) In Ferguson, Missouri--the site of the 2014 shooting by police of 18 year-old Michael Brown, the police force is actually 94 percent white--in a town that is 67 percent black. (35) The national average for local police departments is 75 percent white. (36)

B. IMPLICIT RACIAL BIAS IN THE TRIAL SETTING

At the trial level, implicit racial bias continues to impact the criminal justice system. Several studies indicate that implicit racial bias has a strong impact on decision-making by prosecutors. (37) Prosecutors have the discretion to ask judges for sentencing lenience in cases where the defendant has provided assistance to law enforcement. Research indicates that prosecutors are far more likely to request such leniency for white defendants than for black defendants. (38) In addition, in those cases where prosecutors do request judges to "depart" from the sentencing guidelines when deciding sentences for black defendants, they generally ask for a smaller departure than they would for white defendants in similar circumstances. The average sentence reduction for white defendants is about six months more than that of black defendants. (39)

Jurors, too, are susceptible to implicit racial bias, which can cause a juror to treat defendants of a different race more severely than he or she would treat a defendant of his or her own race. (40) Ironically, studies have found that in cases where race is a central issue, jurors often consciously seek to be fair and therefore tend not to show bias in their deliberations and verdicts (41) Where a case is not racially charged, however, jurors are less careful--likely because racial issues are not at the forefront of their minds--and tend to show a greater racial bias in deliberations and outcomes. (42) Juror bias is usually implicit, not explicit, and jurors are usually not aware they are experiencing and reflecting racial bias (43) Most white jurors are not comfortable expressing overt racial prejudice in their decision-making, but in cases that are not overtly racially charged, they are more likely to convict black defendants than white defendants. (44) Implicit racial bias also impacts the jury selection process and is one factor in the disproportionately high presence of white jurors in many courtrooms (45)

Studies centered on judges have reached similar results--in situations that specifically allude to race, judges tend to demonstrate less bias than in those situations where race issues are not central and the judge's mind is not conscious of racial issues in the case, again suggesting that implicit bias plays a role in influencing judicial behavior. (46)

C. IMPLICIT RACIAL BIAS DURING SENTENCING

In the sentencing phase of the criminal justice system, there is substantial evidence that black defendants suffer worse treatment than similarly situated white defendants; they are more likely to be sentenced to prison, they are more likely to serve longer sentences, and are more likely to receive the death penalty, (47) even when their criminal histories and offenses were similar to white defendants who were treated less severely. (48)

Some studies indicate that there is also disparity among how black defendants are treated. A 2004 University of Colorado study found that defendants with facial features perceived to be more "Afrocentric" usually receive harsher sentences than other defendants. (49) One reason for this is implicit racial bias--even judges who consciously seek to treat different racial groups equally are often unaware that their implicit biases cause them to treat some black defendants differently from others. (50) This study and others like it indicate that implicit racial bias can account for not only how individuals react to those of a particular race, but also disparate reactions to different people of the same race.

In capital punishment situations, the race of the victim has a strong impact on whether the defendant receives the death penalty, with defendants of either race who were convicted of killing white victims much more likely to receive the death penalty than defendants of either race convicted of killing black victims. (51)

Although there are no prominent studies focusing specifically on implicit racial bias during the plea bargain process, (52) it seems likely that such studies would indicate that similar disparities exist within the plea bargain process.

III. IMPACTS OF IMPLICIT RACIAL BIAS ON PUBLIC DEFENDERS

Implicit bias tends to have the greatest impact on individuals who are already facing pressure and anxiety and need to make quick decisions. (53) When one is forced to analyze a situation quickly with incomplete data, he or she is more susceptible to implicit biases than he or she would be in less stressful situations. (54)

Public defenders are put in such a setting on a regular basis--they are faced with overwhelming caseloads and few resources. Public defenders each handle on average 371 cases per year, a rate of more than one new case per day, (55) prompting former U.S. Attorney General Eric Holder to declare the system "in a state of crisis." (56) In 2012, over 70 percent of public defender offices nationally indicated trouble funding the office and compensating attorneys. (57) Andrea Lyon, a public defender in Cook County, Illinois and Chief of the Homicide Task Force recounts in a University of Seattle Law Review article that she usually had 20-29 cases on her plate at the same time, of which 25 to 33 percent were death penalty cases. (58)

Consequently, public defenders become overworked, producing exactly the type of environment in which implicit bias thrives. (59)

Faced with the overwhelming circumstances of too many cases and too few resources, public defenders are forced to triage--to prioritize clients and their resources. (60) A 2013 Yale Law Review article studied circumstances in which public defenders triage, and did not find examples of formal standards or guidelines in place to assist public defenders in making these fast decisions. (61) The article notes that if a public defender office did try to create such standards, it would be impossible to create a system in which personal judgment did not play a role (62)

In a legal field where the majority of clients are not white, (63) racial bias impacts everything from how likely an attorney is to believe in a client's innocence to how they advise clients concerning plea offers. (64) When attorneys do use criteria to triage their cases, a number of different factors play a role. Attorneys can look at how likely it is that they will be able to prove their case, or whether or not they believe their client is innocent (65) both factors to which implicit racial bias can contribute. When attorneys are impacted by implicit racial bias in evaluating their clients, they can unintentionally interpret the facts to lead to a stronger conclusion of guilt or innocence (66) Decisions such as these play a role in a public defender's determination of how much effort or other resources to expend on a particular case, (67) negatively impacting clients who are of a different race than the public defender.

Although public defenders face these issues on a regular basis, they generally are influenced by implicit bias, (68) despite the fact that they deal largely with minority clients and often have a conscious ideological commitment to racial equality. (69)

The impact of implicit racial bias in the public defender setting presents additional problems if the client perceives public defender's bias and responds negatively, in a manner so as to encourage the public defender's negative associations. (70) Due to a phenomenon known as the "behavior confirmation" effect, the public defender--unaware of his or her own contributing actions or bias--is likely to perceive the client's negativity as a confirmation of the public defender's opinion, even though motivated by implicit bias. (71)

IV. WHAT CAN BE DONE?

Currently, the legal ethics codes do not explicitly address the notion of unconscious bias--instead they focus on knowing or conscious bias. A rule which requires attorneys to guard against the possibility of unconscious bias might lead to an integration of steps and tactics within public defender offices to better ensure that implicit racial bias does not enter into an attorney's decision-making. Some in the legal profession are making the effort to do this even without such a rule in place--these individuals recognize the unique confluence of case overload, short timelines, and high stakes faced by public defenders and seek to better train public defenders to mitigate the impact of implicit racial bias.

A. ABA MODEL RULES OF PROFESSIONAL CONDUCT

Rule 8.4 of the American Bar Association (ABA) Model Rules of Professional Conduct states, "[i]t is professional misconduct for a lawyer to ... (d) engage in conduct that is prejudicial to the administration of justice." (72) Comments to the rule indicate that a lawyer who "knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status violates paragraph (d) when such actions are prejudicial to the administration of justice," (73) and that "lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so ...," (74)

Because the comments use the word "knowingly," (75) it is clear that acts of explicit or overt bias by an attorney would violate the Model Rules and subject the attorney to penalties. This rule does not address instances of implicit bias--when a lawyer unknowingly "manifests by words or conduct bias or prejudice based upon race." (76) It is likely that these instances of bias and the decisions attorneys make, particularly in the stressful public defender environment, are "prejudicial to the administration of justice." (77)

B. CALIFORNIA RULE

California is the only state whose rules do not mirror the Model Rules. Instead California has adopted the California Rules of Professional Conduct, including Rule 2-400, which reads in part:

   In the management or operation of a law practice, a member shall
   not unlawfully discriminate or knowingly permit unlawful
   discrimination on the basis of race, national origin, sex, sexual
   orientation, religion, age or disability in hiring, promoting,
   discharging, or otherwise determining the conditions of employment
   of any person; or accepting or terminating representation of any
   client. (78)

The California standard is different from the Model Rules, in that it provides that, "a member shall not unlawfully discriminate or knowingly permit unlawful discrimination," (79) thus articulating two seemingly distinct standards of prohibited conduct: unlawfully discriminating and knowingly permitting unlawful discrimination. On its face, the California rule thus seems to cover both conscious and unconscious forms of discrimination. It is unclear whether discriminatory conduct motivated by implicit bias and which thus occurs without the actor's awareness does in fact constitute unlawful discrimination under the California rule. Further, the rule provides no guide as to how such behavior would--or could--be regulated if it were unlawful. The California standard does seem to cast a wider net in attempting to regulate discriminatory conduct than the Mode! Rules, although it is unclear whether the approach of the California rule reaches to implicit bias.

C. DUTY TO PROVIDE EFFECTIVE REPRESENTATION

The Model Rules incorporate a conflict of interest clause, which includes an obligation to provide competent and diligent representation to each client. Under Rule 1.7, "a lawyer may represent a client if the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client." (80)

Aside from the Model Rules and their California counterpart, the Sixth Amendment provides a Constitutional right to effective representation. (81) Triage techniques influenced by implicit bias call into question the efficacy of representation and the decisions made by those who employ such techniques.

The purpose of such a right is to ensure that criminal defendants receive the "zealous, competent defense to which they are entitled"--the language of the Amendment focuses on the assistance received by defendants, rather than providing standards that must be met by defense attorneys. (82) But how does a defendant obtain redress for the subtle discrimination of implicit bias which may have undermined the effectiveness of his defense counsel's performance?

Ethical questions concerning zealous defense arise in situations where implicit racial bias impacts public defenders' decisions about how to allocate their resources. However, to obtain relief for lack of zealous defense, the defendant must show first "that counsel's representation fell below an objective standard of reasonableness," and second "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (83) These elements would be difficult for a defendant to demonstrate if the bias was implicit and its implications not readily apparent. In addition, the presumption is in favor of the attorney; counsel is "strongly presumed to have rendered adequate assistance," and a defendant must show that counsel failed to act reasonably in the circumstances." (84) This burden makes it even harder for a defendant to establish a prejudicial effect due to implicit racial bias.

There is no legal framework for the notion that illegal and unethical behavior alone constitutes ineffective assistance of counsel. (85) The Supreme Court has held that "breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel." (86) However, these ethical requirements for attorneys to provide a zealous defense are at odds with the case overload that many public defenders face--overworked attorneys forced to triage their cases are unlikely to be able to provide zealous representation to each of their clients.

D. PUBLIC DEFENDER TRAINING AND AWARENESS

In the struggle to combat the racial bias caused in part by the system of triage in public defender offices, Professor Jonathan Rapping sees training as the answer. (87) Rapping believes that public defenders today are largely motivated by process--they feel pressured to close out cases, resulting in less focus on justice. (88) "As the system gets overwhelmed, the goal becomes getting this overwhelming number of cases through the system. Rather than focusing on justice, taking our time, and making sure that every person gets what our Constitution deserves, we start looking for shortcuts." (89) He seeks to arm public defenders with the skills and awareness necessary to better manage their caseloads and combat civil rights violations in the public defender system. (90)

Rapping was selected in 2014 for a Mac Arthur Foundation grant for his organization Gideon's Promise, which works to train public defenders to address civil-rights abuses. (91) Rapping founded Gideon's Promise after a career as a public defender. He started in an office with numerous resources and manageable caseloads, but soon recognized that most other public defender offices were not similarly situated. (92) Rapping recognized that the system resulted in a lower standard of justice for indigent defendants. He named his group for the landmark case Gideon v. Wainwright, which held that state courts need to provide counsel for indigent defendants in order to meet the requirements of the Sixth Amendment. (93) Gideon's Promise has trained 300 public defenders in fifteen states, and holds two-week training sessions for new public defenders, with tailored training for more experienced lawyers. (94) In Maryland, Rapping has been working with 570 attorneys who are usually expected to take on more cases than called for in-state guidelines (95)

San Francisco Public Defender Jeff Adachi believes that the best way to mitigate the impacts of implicit racial bias in public defender offices is to make public defenders more aware of their own biases. In remarks on implicit bias at UC Hastings College of the Law in August of 2013, he noted that the right to counsel is not fully realized as long as public defenders face too few resources and too much work, calling the situation "one of the greatest ethical dilemmas in our legal system." (96) Adachi points to the fact that in many states, public defenders are unable to refuse cases, even when they are overwhelmed. (97) As long as overburdened public defenders are forced to triage and make hasty decisions about how to allocate their limited resources, there is a risk that these decisions will be racially motivated, without the public defender even being aware of the existence or effect of such motivations.

Adachi notes that many individuals in the criminal justice system are unwilling to acknowledge they may be biased, and therefore would be unlikely to admit to it in a legal setting. (98) He points to the Implicit Association Test, and recommends that public defenders take the test to become aware of their own implicit bias. Adachi describes the test as requiring test takers to confront an image, then to categorize the image as good or bad. (99) He notes that typically, test takers are able to categorize an image as good or bad very quickly when their choice comports with their values. However test takers hesitate when they are presented with images for which their bias runs counter to their values. (100)

E. THE TRAYVON MARTIN CASE

Adachi uses the Trayvon Martin case to discuss some of the impacts of implicit bias. He notes that defendant George Zimmerman's own implicit racial bias likely contributed to Zimmerman's characterization of Martin. (101) In Zimmerman's phone call to the police, he states that Martin looked like "he was up to no good," while Martin was walking home holding a pack of skittles and an ice tea. (102) Adachi states that implicit bias is likely to increase an individual's sense of fear, causing him to become more aggressive than he would be otherwise. (103)

   If someone sees a threat, then implicit bias will increase the
   threat they feel. As a result, someone can see an African American
   man, decide that he is a threat because he is African American, and
   then become overly aggressive toward him. And this is something of
   which they may not even be conscious. (104)

Cynthia Lee, a professor at The George Washington University Law School, researched the impact of implicit racial bias at multiple levels of the Trayvon Martin case, and notes that

   It is unlikely that Zimmerman would have thought Martin was "real
   suspicious," "up to no good," and "on drugs or something" if Martin
   had been white. Race likely influenced Zimmerman's perception that
   Martin posed a threat of criminality, whether Zimmerman was aware
   of this or not. (105)

In an article for CNN.com, noted trial consultant Richard Gabriel points out that Zimmerman denied any racial animosity, but that comments Zimmerman made indicate his frustration with high crime rates and a need to "profile" those in his community based on race, youth, behavior, and clothing. (106) This disparity is an indication of an implicit bias--indicative of the rapid way in which Zimmerman processed his observations of Martin that night.

Adachi posits that police actions were also impacted by implicit bias, causing officers arriving on the scene to surmise that Zimmerman's actions were justified and in self-defense. Adachi claims that it is possible that these biases caused the police to engage in behavior to confirm their bias. "It is possible that the police literally looked at Trayvon as he bled and felt nothing. At the same time it is possible that they looked at Zimmerman and felt empathy for his tenuous legal situation." (107) Adachi further considered the jurors, suggesting that their implicit racial bias led them to sympathize with Zimmerman. Adachi highlights the fact that race was not mentioned during the trial, and alleges that the omission may have been purposeful choice by the prosecution--to avoid making jurors conscious of their racial bias. (108) But Richard Gabriel points to post-trial interview comments by juror number B37, in which the white juror said of black witness Rachel Jeantel that she was "hard to understand" (109) and was "using phrases I had never heard before." (110) Gabriel suggests that it was juror B37's inability to relate to the Jeantel that caused her to find Jeantel unbelievable as a witness. (111)

Adachi quoted a juror's statement in a CNN interview--"I think all of us thought race did not play a role." (112)

F. RECENT EFFORTS WITHIN THE LEGAL COMMUNITY

Despite Rapping and Adachi's efforts, it may be an uphill battle to convince some public defenders to recognize and seek to mitigate the impacts of implicit racial bias, or even to admit that it poses a problem. Andrea Lyon wrote about her experiences working as a white public defender in Chicago, when at a meeting of supervisors, she suggested that the public defender office recognize the issue and work to combat personal racial biases within the office. After the meeting, Lyon was warned by one of her African American supervisors that she had "done it now," and that her comments would be viewed as betrayal by her white colleagues. That night, her front tires were slashed--in what Lyon suspects was an act of retaliation. (113)

In September of 2014, the Department of Justice (DOJ) announced the National Network for Building Community Trust and Justice, an initiative with $4.75 million in funding aimed at improving relationships and increasing trust between minority communities and the criminal justice system. (114) The DOJ initiative highlights three areas for progress: (i) racial reconciliation (a focus on opening communication lines between minority communities and law enforcement), (ii) procedural justice (a focus on interactions between the police and the public which significantly impact the public's perception of law enforcement), and (iii) implicit bias (a focus on the effect of unconscious psychological processes on authorities' actions, even when overt racism is not present). The initiative will work with five pilot sites around the country. (115) The initiative, however, focuses largely on police action--and does not focus on what happens after an individual has been charged. (116)

In the summer of 2015, Paulette Brown became President of the American Bar Association, and announced a list of initiatives, including one to combat racial bias. (117) The "Ferguson to Charleston" program is aimed at moving the legal profession toward community-based solutions to ensure equal application of the rule of law. (118) While the program again focuses largely on police conduct, it includes a commitment to implicit bias training for personnel throughout the justice system. The ABA also announced this past summer a new Continuing Legal Education (CLE) program that will explore cognitive biases to assist lawyers in identifying and overcoming such biases in practice. (119)

CONCLUSION

While there is no clear and single solution to the problem of implicit racial bias in the criminal justice system generally or in public defenders' offices specifically, a combination of efforts may offer a path to reducing the negative impact of implicit bias. Significant steps should include a combination of efforts, including reducing caseloads and providing public defenders with greater resources, increasing public defenders' awareness of their own subconscious biases, and increasing consciousness within the legal community may go a long way to combat the effects of implicit bias.

Because implicit racial bias impacts public defender offices disproportionately due to the stress under which most public defenders operate, extra care is needed to guard against such bias in these offices. Neither the Model Rules nor the California Rules go far enough to address the issue of working to guard against unconscious bias--instead focusing primarily on conscious bias. If legal ethics codes required steps to guard against implicit bias, all lawyers, including public defenders, would likely take seriously the need to be alert to implicit bias and guard against its effects. One result might be widespread adoption of some of the techniques introduced by Jonathan Rapping and others.

It is only through a mixture of all of these efforts that the impacts of implicit racial bias in public defender officers may be reduced. Through a concerted effort to reduce caseloads and ease the stress of uncomfortably rapid decision-making, combined with training and awareness, public defenders as a group may be able to make decisions in a more deliberate and reasoned way, and the effects of implicit bias in the criminal justice system can be mitigated.

As Andrea Lyon commented, "We must not take a 'color-blind' approach to our representation because it is in the very recognition of color that we can recognize our own biases and ensure that they do not inhibit our ability to represent our clients." (120)

Jessica Blakemore, J.D., Georgetown University Law Center (expected May 2016); B.A. Barnard College, Columbia University (2007). [C] 2016 Jessica Blakemore.

(1.) REPORT OF THE SENTENCING PROJECT TO THE UNITED NATIONS HUMAN RIGHTS COMMITTEE REGARDING RACIAL DISPARITIES IN THF; UNITED STATES CRIMINAL JUSTICE SYSTEM, THE; SENTENCING PROJECT 1 (Aug. 2013), http://sentencingproject.Org/wp-content/uploads/2015/12/Race-and-Justice-Shadow-Report-ICCPR.pdf [https://perma.cc/9WBB-75SP] [HEREINAFTER SENTENCING PROJECT],

(2.) Id. at 3-4.

(3.) Richard Gabriel. Race. Bias, and the Zimmerman Jury, CNN (July 16. 2013). http://www.cnn.coni/2013/07/16/opinion/gabriel-bias-zimmerman/ [https://perma.cc/3HQE-BB3MI.

(4.) Implicit Bias. STANFORD ENCYCLOPEDIA OI PHILOSOPHY, http://plato.stanford.edu/entries/implicit-bias/ [https://perma.cc/C4Y4-HQUM] (last visited Aug. 1. 2016).

(5.) Anthony G. Greenwald & Linda Hamilton Krieger. Implicit Bias: Scientific Foundations. 94 Cal. L. REV. 945, 946 (2006).

(6.) Implicit Bias, supra note 4.

(7.) Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA L. REV. 1124, 1126 (2012).

(8.) L. Song Richardson & Philip Atiba Goff. Implicit Racial Bias in Public Defender Triage. 122 YALE L.J. 2626,2629.

(9.) Greenwald & Krieger, supra note 5, at 946.

(10.) Richardson and Goff, supra note 8, at 2629.

(11.) Kang et al. supra note 7, at 1126.

(12.) Richardson and Goff, supra note 8, at 2630-31.

(13.) Greenwald & Krieger, supra note 5, at 951.

(14.) Id. at 949.

(15.) Kang et al., supra note 7, at 1128-29.

(16.) Id. at 1132.

(17.) Greenwald & Krieger. supra note 5, at 952.

(18.) Id.

(19.) Chris Mooney, Across America, Whites are Biased and They Don't Even Know it. Wash. Post (Dec. 8, 2014). https://www.washingtonpost.coni/news/wonk/wp/2014/12/08/ across-america-whites-are-biased-and-theydont-even-know-it/ [https://pernia.cc/3CQU-EPRH].

(20.) Greenwald & Krieger. supra note 5, at 955.

(21.) It is important to note that the data does not come from a random sample--individuals voluntarily took the IAT on a website. Anthony Greenwald. creator of the IAT, indicated that the volunteers who took the test are younger, more educated, more liberal, and more female than the population of the U.S. So on the whole, it's likely that the sample who took the IAT through Project Implicit are less biased than the U.S. population overall.

(22.) Mooney. supra note 19.

(23.) Sendhil Mullainathan, Racial Bias, Even When We Have Good Intentions, N.Y. TIMES (Jan. 3, 2015), http://www.nytimes.com/2015/01/04/upshot/the-measuring-sticks-of-racial-bias-.html [https://perma.cc/AQ9ZST24],

(24.) Id.

(25.) Kang et al" supra note 7, at 1135.

(26.) Id.

(27.) Id. at 1139.

(28.) SENTENCING PROJECT, supra note 1, at 3. The data suggests that African American men are more likely to commit violent and property crime than are other groups.

(29.) Id. at 4.

(30.) Id. at 5.

(31.) See NATIONAL INSTITUTE ON DRUG ABUSE, MONITORING THE FUTURE:: NATIONAL SURVEY RESULTS ON DRUG USE, 1975-2011, 32 (2012) (This study, focusing on high school students, demonstrated that African-American students have lower usage rates than white students for a number drugs, including LSD, ecstasy, cocaine, and methamphetamine).

(32.) See U.S. DEPARTMENT OF JUSTICE OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, LAW ENFORCEMENT AND JUVENILE CRIME: (Dec. 2012), http://www.ojjdp.gov/ojstatbb/crime/JAR_Display.asp?ID=qa05274 [https://perma.cc/R73R-QLGD].

(33.) SENTENCING PROJECT, supra note 1, at 5-6.

(34.) Jeremy Ashkenas & Haeyoun Park, The Race Gap in America's Police Departments, N.Y. Times (April 8, 2015), hltp://www.nytimes.com/interactive/20l4/09/03/us/the-race-gap-in-americas-police-departments.html [https://perma.cc/N8SC-6WRL].

(35.) Rebecca Leber, Ferguson's Police Force in 94 Percent White--And That's Basically Normal in the U.S., NEW REPUBLIC (Aug. 13, 2014), https://newrepublic.c0m/article/119070/ michael-browns-death-leads-scrutinyferguson-white-police [https://pernia.cc/TKW8-Q4UV].

(36.) Id.

(37.) SENTENCING PROJECT, supra note 1, at 9.

(38.) Id. at 9-10. This data holds true even when controlled for a number of variables such as the nature of the offense and past criminal history, and also when controlled against sentencing norms at specific courts.

(39.) Id.

(40.) Kang et al., supra note 7, at 1142.

(41.) Id. at 1143-44.

(42.) Id.

(43.) Id.

(44.) SENTENCING PROJECT, supra note 1. at 11.

(45.) Mark W. Bennett. Unraveling the Gordiun Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson. and Proposed Solutions, 4 HARV. L. & POL'Y REV., 149, 161 (2010).

(46.) Kang et al" supra note 7, at II47-48.

(47.) Id.

(48.) SENTENCING PROJECT, supra note 1. at 12-13.

(49.) Irene V. Blair et al.. The Influence of Afrocentric Facial Features in Criminal Sentencing, 15 PSYCHOL. SCI. 674 (2004). This study first sought to code which facial features were perceived to be more "Afrocentric," then looked at sentencing rates.

(50.) Kang et al., supra note 7, at 1150.

(51.) SENTENCING PROJECT, supra note 1. at 13 (indicating that although about 50 percent of murder victims in the United States are white, 77 percent of executions since 1976 were of defendants convicted of murdering white victims. In contrast, on 13 percent of the executions in 1976 were of defendants convicted of murdering black victims).

(52.) Kang et al.. supra note 7. at 1141.

(53.) Richardson & Goff. supra note 8. at 2631.

(54.) Id. at 2628.

(55.) SENTENCING PROJECT, supra note 1. at 7.

(56.) Attorney General Eric Holder. Remarks at the Department of Justice (Mar. 15.2013), http://www.justice. gov/opa/speech/attorney-general-eric-holder-speaks-justice-departments-50th-anniversary-celebration-us [https://perma.cc/5BBN-YC2R].

(57.) SENTENCING PROJECT, supra note I. at 7.

(58.) Andrea D. Lyon. Race Bias and die Importance of Consciousness for Criminal Defense Attorneys, 35 SEATTLE U. L. REV. 755 (2012).

(59.) Richardson & Goff, supra note 8 at 2631-32.

(60.) Id. at 2632.

(61.) Id. at 2632-33.

(62.) Id. Richardson and Goff draw a comparison between public defender triage and the type of triage that takes place in an emergency room, finding that even in situations where medical data and science should govern decisions, implicit racial bias still contributes to treatment decisions.

(63.) Sentencing Project, supra note 1, at 8.

(64.) Richardson & Goff, supra note 8 at 2632-35.

(65.) Id. at 2634.

(66.) Id. at 2636.

(67.) Id.

(68.) See Theodore Eisenberg & Sheri Lynn Johnson, Implicit Racial Attitudes of Death Penalty Lawyers, 53 DEPAUL L. REV. 1539, 1545-55 (2004). Eisenberg and Johnson used an Implicit Association Test to measure biases in the general population and in capital defense attorneys, concluding that the racial bias in both groups appears to be the same.

(69.) Kang et al" supra note 7. at 1141.

(70.) Richardson & Goff, supra note 8 at 2637-38.

(71.) Id.

(72.) MOURN. RULES OF PROF'L CONDUCT R. 8.4(2015) [hereinafter MODEL RULES],

(73.) Model Rules R. 8.4.

(74.) Model Rules R. 8.4.

(75.) Model Rules R. 8.4.

(76.) MODEL RULES R. 8.4.

(77.) MODEL RULES R. 8.4.

(78.) CAL. RPC 2-400 (West 2014).

(79.) Id.

(80.) MODEL RULES OF PROF'L CONDUCT R. 1.7.

(81.) U.S. Const, amend. VI.

(82.) See Chacon v. Wood, 36 F.3d 1459, 1464 (9th Cir. 1994) (holding that a former state prisoner's release from custody did not render his appeal moot and that an allegation that an interpreter intentionally misrepresented counsel's advice stated an ineffective assistance of counsel claim).

(83.) Pham v. United States. 317 F.3d 178. 182 (2d Cir. 2003) (holding that the District Court could not dismiss a motion to vacate without setting forth its reasons in determining that the defendant was not prejudiced by defense counsel's alleged failure to convey a plea offer, and without fully considering the trial record as a whole in determining whether counsel's performance was deficient).

(84.) Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (upholding habeas relief for a prisoner's death sentence, and holding that the court could have reasonably concluded that the petitioner was not prejudiced by counsel's allegedly deficient performance when counsel failed to adequately investigate and present mitigating evidence at trial).

(85.) McDougall v. Rice, 685 F. Supp. 532, 542 (W.D.N.C. 1988).

(86.) Nix v. Whiteside, 475 U.S. 157, 165 (1986).

(87.) Scott Dance, Lawyer Training Maryland Public Defenders Among MacArthur Grant Winners, Balt. Sun (Sep. 17, 2014), http://articles.baltimoresun.com/2014-09-17/news/ bs-md-macarthur-rapping-20140917_1_macarthur-foundation-macarthur-grant-winners-gideon [https://perma.cc/A9WY-CHPQ].

(88.) Charles Pulliam-Moore, MacArthur Fellow Trains Lawyers to Work for Clients, Not Judges, NPR (Sep. 21, 2014) http://www.npr.org/sections/codeswitch/2014/09/21 /349871992/macarthur-fellow-trains-lawyers-towork-forclients-not-judges [https://perma.ee/MW64-KK9Q].

(89.) Id.

(90.) Id.

(91.) Dance, .supra note 87.

(92.) Id.

(93.) Id.

(94.) Id.

(95.) Id.

(96.) Jeff Adachi, San Francisco Public Defender, Remarks at UC Hastings College of the Law Criminal Ethics Seminar: Implicit Bias (Aug. 1, 2013), http://equaljusticesociety.org/2013/08/05/ sf-public-defender-jeffadachi-on-implicit-bias/ [https://perma.cc/WJ79-2Z96].

(97.) Id.

(98.) Id.

(99.) Id.

(100.) Id.

(101.) Id.

(102.) Id.

(103.) Id.

(104.) Id.

(105.) Cynthia Lee, Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post-Racial Society, 91 N.C. L. REV. 101. 111 (2013).

(106.) Gabriel, supra note 3.

(107.) Adachi, supra note 96.

(108.) Id.

(109.) Gabriel, supra note 3.

(110.) Id.

(111.) Id.

(112.) Adachi. supra note 96.

(113.) Lyon, supra note 58, at 757.

(114.) NATIONAL NETWORK I OR SAEE COMMUNITIES, http://nnseomnninities.org/our-work/ commentary/nationalinitiative-for-building-community-trust-and-jusurces/articles [https://pernia.cc/2W.IR-ZQQX] (last visited Aug.1,2016).

(115.) Id.

(116.) Id.

(117.) Paillette Brawn Announces Ambitious Plans as She Assumes the ABA Presidency, AM. BAR ASSOC. (Aug. 3,2015). http://www.abajournal.com/news/article/paulette_brown_announces_ambitious_plans_as_she_ assunies_the_aba_presidency [https://perma.ee/99F4-UK26].

(118.) Annual 2015: Program to Examine Wt/v.v to Reduce Racial Bias in Criminal Justice System Post Ferguson. Am. Bar Assoc., http://www.aniericanbar.org/news/abanews/aba-news-archives/20l5/07/annual_ 20l5_programl.html [https://perma.cc/QW4L-UBC9] (last visited Aug. 1. 2016).

(119.) Legal Experts to Explore Implicit Bias at American Bar Association Program, AM. BAR ASSOC. (Aug. 24, 2015), http://www.americanbar.org/news/abanews/aba-news-archives/20l 5/08/legal_experts_toexp. html [https://perma.cc/H4PY-L9EG].

(120.) Lyon, supra note 58, at 757-58.

Source Citation

Source Citation   

Gale Document Number: GALE|A483930263