What does a judge look like?
What does a judge look like?
‘I don’t know, but you don’t look like one’
“You don’t look like a judge.”
That’s what Judge Bernice Donald was told when she went to have radio and television ads produced for her first judicial campaign back in 1982.
“What’s a judge look like?” Donald asked the young woman in the waiting room.
The answer: “I don’t know, but you don’t look like one.”
Donald provided this anecdote as part of an implicit bias discussion during a luncheon at the Criminal Justice Summit in Tampa, noting she obviously was not the stereotypical older, white, male judge. Donald, who ran for judicial office in western Tennessee and was the first African-American female judge in that state, said bias is a preference and implicit bias is “unconscious.”
Former ABA President Hilarie Bass introduced the discussion and said implicit bias affects the justice system every day.
“Something that we refer to as a stereotype is really your brain’s way of completely making assumptions about a person’s behavior based on their appearance,” Bass said. “Every time you interact with someone, whether it’s in a workplace or with a juror, you make immediate split decisions as to what that person is like.”
Professor Sarah E. Redfield of the University of New Hampshire School of Law provided an example by showing a video of Susan Boyle, a singing contestant on “Britain’s Got Talent,” in which the audience was underwhelmed by the middle-aged woman’s appearance, but overwhelmed by the ethereal quality of her voice.
Redfield also provided PowerPoint presentations in which images popped up on the screen, and the audience was asked to react quickly with responses to whether those images were “good” or “bad” based on appearances.
“There are many instances where implicit bias might be at play when you’re not aware of it,” Judge Donald said. “Let me give you this example. I was presiding over a drug trial. . . and the defense attorney stood up and said, ‘how many of you know what a drug dealer looks like? Raise your hand.’ And all these [juror] hands went up.”
At the defense counsel’s table was a young African-American man who looked like he stepped right out of central casting, Judge Donald said, and the hands slowly came down.
“You have to ask yourself, how can that person be accorded the presumption of innocence when we, this jury, know what a drug dealer looks like,” the judge said.
Judge Donald, who was appointed to the U.S. District Court of Appeals for the Sixth Circuit by President Barack Obama, told about inconsistent charging patterns in her office in the Western District of Tennessee. On her 9 a.m. docket one day was a black man charged with eight felony counts for possessing eight firearms. On her afternoon docket, was a white man with a two-count indictment: one count for eight stolen weapons and one count for felony possession of those firearms.
“So I said to the attorney, wait a minute, didn’t we have a case this morning with the person having eight weapons, and each weapon was a separate count? Why do we now have all eight?”
It was because the stolen weapons charge was being dismissed as part of a plea negotiation, Judge Donald said, but she said different charging patterns should not be coming out of the same office. She said communities believe they cannot get justice in the court system, and those people with eight convictions appear immensely more dangerous to people in the community than the person who had one count.
Bass said people feel most comfortable with others who look and act like themselves, and some self-analysis is needed to discover how this unconscious tendency instantly impacts decisions. In the criminal justice system, this becomes critically important, she said.