Cecily Zamora
Bias is an unfair act or policy stemming from prejudice. Bias against certain traits, such as race, religion, sex, and handicaps, is prohibited in certain areas, such as employment and public services. Bias can exist in laws and the legal system in many different ways. For example, implicit bias can influence jury selection, prosecutorial decisions, and judicial rulings, potentially impacting the lives of defendants. Despite cultural progress in reducing overt acts of racism, stark racial disparities persist in American life, and the legal system has been complicit in the subordination of historically disadvantaged groups. Furthermore, anti-discrimination laws meant to prevent discrimination in housing have been undermined by implicit biases that maintain racial segregation and inequality.
| Characteristics | Values |
|---|---|
| Bias in jury selection | Racial bias, gender bias, beauty bias, implicit weight bias |
| Bias in prosecutors | Plea bargain, bail, crime to charge |
| Judicial bias | Bias based on race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, political affiliation |
| Anti-discrimination laws | Discrimination in housing, employment |
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What You'll Learn
Judges can be biased
Judges are expected to be impartial, as they promise in their oath, but they are human and do harbour implicit biases influenced by their identity and experiences. Bias is a learned characteristic, and humans are influenced by their surroundings, including churches, schools, news media, entertainment, sports organisations, hobbies, political parties, legal institutions, and friends and family.
A judge's bias toward one or more of the parties to a case over which the judge presides is known as judicial bias. Judicial bias is usually not enough to disqualify a judge from presiding over a case unless the judge's bias is personal or based on some extrajudicial reason. However, it is important to recognise and address implicit bias to ensure fair trials. For example, in the case of George Willie, Judge Redwine acknowledged their implicit biases and brought them up in their analysis, preventing them from affecting their judicial behaviour and judgments.
There are numerous studies on the impartiality of judges. For example, Judge Bernice Bouie Donald of the United States Court of Appeals for the 6th Circuit in Tennessee spoke about the impact of implicit bias in the courtroom at the American Bar Association Virtual Midyear Meeting. She defined implicit bias as "those unconscious associations that we make about groups of people, stereotypes that we assign to groups of people ... without intention, without knowledge or control".
While implicit bias has not been recognised by courts, it is essential to educate lawyers and judges to recognise potential implicit bias in jury selection. This can influence decisions made by prosecutors, such as offering a plea bargain, contesting bail, or deciding on the crime to charge for, and ultimately impact the lives of defendants.
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Jurors can be biased
While the legal system is designed to be impartial, it is made up of humans who are fallible and prone to biases. Jurors are no exception and can exhibit various types of biases that may influence their decision-making during a trial.
One common type of bias found in jurors is confirmation bias. This occurs when jurors favour a particular verdict and selectively interpret evidence to support their preferred outcome, disregarding or downplaying contradictory information. For instance, a juror with an inherent bias towards the prosecution may be more inclined to accept the prosecution's arguments and evidence while discounting the defence's case.
Racial bias is another significant factor that can impact the decision-making process of jurors. Despite societal progress in addressing overt racism, racial disparities persist, and implicit racial biases continue to influence the legal system. In the United States, the issue of racial bias in jury selection has been a subject of debate, with the Supreme Court addressing cases where jurors' statements indicated reliance on racial stereotypes or animus in reaching their verdicts.
Additionally, jurors may also exhibit biases based on their level of confidence in the criminal justice system. Some jurors may have a pro-prosecution bias, leading to a higher likelihood of guilty verdicts, while others may struggle to maintain an "innocent until proven guilty" mindset due to their preconceptions.
The presence of biased jurors can have severe consequences, as it violates the constitutional right to an impartial jury. However, the legal system's response to this issue has been varied. While the seating of a biased juror is recognised as a violation, there is disagreement among state courts as to whether it constitutes a structural error requiring an automatic retrial.
To address these challenges, researchers have proposed jury selection procedures that aim to identify and exclude jurors with prejudicial biases. The PJAQ (Pre-Jury Attitude Questionnaire), for instance, is a tool used to measure biases that might influence juror decision-making, including racial biases and system confidence. By employing such measures, it may be possible to reduce the impact of biased jurors and improve the fairness and integrity of the legal process.
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Prosecutors can be biased
While laws themselves are not inherently biased, the people tasked with upholding them may be. Judges, lawyers, and jurors are all susceptible to implicit bias, and this can have a significant impact on the outcome of a case.
Prosecutors, in particular, have a great deal of discretion in how they manage cases. They can choose to offer a plea bargain, contest bail, and decide whether and what crime to charge for. Bias can influence each of these decisions, potentially impacting the lives of defendants.
Observational studies have long suggested that prosecutors' biases toward race and class are among the primary drivers for disparities in criminal justice. For example, a 1993 study found that prosecutors in Los Angeles were 1.59 times more likely to fully prosecute an African American defendant for crack-related charges than a white defendant. That likelihood was 2.54 times greater for Hispanic defendants compared to white defendants.
However, a more recent study from the University of Arizona, involving hundreds of prosecutors across the U.S., has challenged this notion. The study found no difference in the severity of charges, fines, and sentences across different races and classes of defendants. According to the study's lead researcher, Christopher Robertson, this suggests that prosecutors' biases may not be the primary cause of disparities in the criminal justice system. Instead, Robertson suggests that policymakers may be better off focusing on disparities that occur before an arrest, such as in economic development and education.
While the University of Arizona study found that individual prosecutors may not be substantially biased, it is important to recognize that implicit bias can still influence their decisions. Prosecutors are in a unique position to address bias crimes, often called hate violence, and work with law enforcement to direct attention and resources toward addressing this problem. They can also educate judges about the nature, prevalence, and severity of hate violence to encourage effective sentences.
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Bias in property and land use laws
One example of housing bias is exclusionary zoning, which restricts the supply of housing, particularly smaller houses and apartments. Homeowners in certain areas may believe they have the right to veto new housing developments near them, using their political power to keep out any housing that might be less expensive than their own. This type of zoning increases housing prices and creates a mismatch between supply and demand, as the demand for smaller and more affordable housing increases.
In one case, a Virginia suburb tried to exclude the working class by not allowing apartments. However, when working-class immigrants moved into the area for local jobs, they ended up sharing single-family houses, leading to complaints about overcrowding. Additionally, when the construction business crashed, many of these immigrants lost their jobs and their houses were foreclosed upon, resulting in even more vacant houses than if the immigrants had been allowed to live in apartments.
The consequences of housing bias can be far-reaching, with people excluded from certain areas moving further out into suburbia, leading to increased traffic and environmental impacts. It also contributes to the creation of homogeneous communities, which can perpetuate social and economic inequalities.
Recognizing and addressing housing bias is crucial to promoting social justice and ensuring equal access to housing opportunities for all individuals, regardless of their income or background. Efforts to combat housing bias include educational initiatives, such as the "Bias Override: Overcoming Barriers to Fair Housing" course offered by the National Association of REALTORS® (NAR), which aims to help real estate professionals identify and interrupt their implicit biases and provide equal professional service to every client.
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Bias in employment laws
Laws are meant to be fair and impartial, but they can sometimes be biased. Bias in employment laws is a significant issue that has resulted in several notable lawsuits. This bias can be implicit or unconscious, influencing decisions related to recruitment, hiring, promotions, and termination.
One form of bias in employment laws is racial bias. Despite cultural progress in reducing overt acts of racism, racial disparities persist in American life. For example, a study found that employers were more likely to respond to job applicants with stereotypically Caucasian-sounding names than those with African-American-sounding names, even when the resumes were identical. Similarly, taller people tend to earn more than shorter people, and attractive people may have an advantage in the workplace. These biases can influence decisions at every stage of employment, from hiring to promotion and termination.
Another form of bias in employment laws is algorithmic or AI bias. With the increasing use of AI tools in screening resumes, analyzing social media presence, and interviewing candidates, bias can be inadvertently introduced. For example, Amazon found that its AI hiring algorithm discriminated against women applying for technical jobs as it was trained on a dataset of mostly men. To address this, New York City passed a law in 2021, enforced from July 5, 2023, prohibiting employers from using AI for hiring or promotion decisions without first conducting a bias audit. Other states, such as Pennsylvania, New Jersey, and New York, have proposed or introduced similar laws.
To address unconscious bias in employment laws, employers can take several steps. Firstly, they can implement diversity training to raise awareness about unconscious biases and how to recognize them in the workplace. Secondly, they should establish objective hiring and promotion criteria, adopt structured interview techniques, and implement decision-making policies and procedures. By taking these measures, employers can strive to create a fair and unbiased work environment.
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Frequently asked questions
Yes, laws can be biased. Bias appears in the law in many different ways. For example, racial bias in the United States has led to stark racial disparities that continue to define American life.
Bias can appear in the law through implicit bias, which can influence jury selection, prosecutorial decisions, and judicial rulings.
Efforts are being made to address bias in the law, such as educating lawyers and judges to recognize potential implicit biases in jury selection and anti-discrimination laws that aim to prevent discrimination in areas like employment and housing.
