Definition of unconscious bias
Unconscious bias happens by our brains making incredibly quick judgments and assessments of people and situations. Your unconscious brain processes information 200,000 times faster than your conscious mind. It looks for patterns, and it influences your behaviour whether you like it or not, probably without you even being aware of what is going on. Scientists estimate that we are exposed to as many as 11 million pieces of information at any one time, however our brains can only functionally deal with about 40. We are all the victims of bias, to some extent, in every decision we make.
Impacts of unconscious bias
Numerous studies have shown that everyone, whether they think so or not have implicit biases. When such biases enter the criminal justice system it can compromise the outcomes of court cases putting people’s lives on the line, sometimes literally. While the criminal justice system promises a fair and impartial trial for all, whether or not that promise is being met is questionable. In a system where all checks against implicit biases involve asking people whether or not they have them, there is much room for biases to creep into courts unchecked.
The impacts of unconscious bias can mean that talented people are left out of the workforce and/or not allowed equal opportunity for development and career progression. It is also where diverse voices are not heard in meetings and in the courtrooms especially where decisions can be impaired and unjust as a result. This has a major knock-on effect on society not just in the courtroom and/or the workplace.
Assumptions, stereotypes and contextual information can influence judgement unintentionally, and result in suboptimal reasoning. Studies show that this affects decisions of forensic experts, witnesses and mock jurors. As most people are unaware of their cognitive biases, they are hard to control, however their effect may be mitigated by a variety of targeted strategies.
It is important to note that while judges do not decide guilty or innocent in a jury trial, they do decide what sentence a defence receives. In general, in both the UK and the US, judges serve black defendants with longer prison sentences than white males in similar circumstances. The same applies for gender where male defendants are given longer prison sentences than female defendants despite similar offence and criminal history.
David Lammy published the Lammy Review over four years ago in September 2017 stating that “The racial bias in our justice system is creating a social timebomb.’ 41% of under-18s in custody are from minority backgrounds compared with 25% a decade ago. Young black people are now nine times more likely to be in youth custody than young white people.
Research conducted by the University of Bedfordshire estimates that children in the care system are seven times more likely to be subject to imprisonment during childhood than those who are not in care. It is an open secret that the prison population in England and Wales is disproportionately made of individuals who have been in care at some time in their lives.
Research has also found that people of minority ethnic backgrounds are overrepresented within the criminal justice system in England and Wales. The Black Lives Matter worldwide protests in 2020 were fuelled by these types of long-standing inequalities with the criminal justice system.
The courtroom is also the workplace for many where microaggressions are present. These are subtle behaviours that affect members of marginalised groups however can add up and create even greater conflicts over time. It is with hostile communication, hostile or negative viewpoints which can appear as banter and/or overt discrimination and harassment.
These examples are not just affecting defendants in the courtroom but also staff and barristers from diverse backgrounds. Diverse barristers have been mistaken for defendants in the courtroom and cleaners within their chambers due to implicit and unconscious bias for decades.
On a positive note, when it comes to DE&I principles and purpose driven leadership, I have been impressed by the younger generation who have just started their careers during the past few years. They understand this mission straight away and are actively working towards a solution. We need more of this energy and action with the existing leaders at the top of the legal industry to help create real and meaningful change at a faster pace.
Some solutions to eliminate unconscious bias include:
- Self-awareness and acknowledgement on a daily basis are first steps. We can engage our reflective/conscious brain to interrupt biases. That means we need to question ourselves and others knowing that tackling our unconscious biases takes all of “intention, attention and time”. As a result, we can all, at an individual and collective level, take steps to be more inclusive colleagues and leaders, to make better and fairer decisions. Examine your own behaviour to help challenge the norms and try exposing yourself to something different. Commit to at least one individual action.
- Call out and question (politely and constructively) what seems like unconscious bias when we observe it. Celebrate those that do the same.
- Trainingjudges, barristers, police and other associated groups on bias while educating jurors may reduce the influence of cognitive biases in court if this is continuous and embedded into processes and policies. This should not be a one-off or even a few sessions otherwise this will not work.
- Exposure to counter typical examples of certain groups, auditing and procedural changes such as adding another judge.
- Increasing juror diversity and adding jury instructions.
- Proposals for jurors include screening via the Implicit Association Test (IAT) measures how quickly someone pairs a description with another entity. The amount of time it takes to pair a word with an adjective indicates a positive or negative mental association with the word. For instance, it may measure how long it takes a police officer who is part of the “courtroom” system to judge whether a white or black person is carrying a harmless object or a weapon. Research has shown that jurors held strong implicit associations between black males and guilty verdicts where a defendant’s race influenced the verdict. A US study included over one-hundred judges from three different jurisdictions revealed judges do harbour implicit racial biases.
- Bias has an insidious effect in the courtroom because of the sheer amount of biases that exist, in addition to their latency. Yet, if we could somehow blind jurors and judges to the defendant without blinding them to the evidence, then we have closed on major floodgate for bias. This will include no visual cues to trigger potential biases against appearances such as gender, race, accents, affiliations and other social markers.
- Having frank and honest discussions about bias. These discussions will be uncomfortable but necessary in order to create real positive change in and out of the courtroom.
- Looking at your own social network – the people who you spend time with “outside” of the courtroom is key. If everyone looks like you, thinks like you and/or has a similar background, try to broaden your personal social circle because this will in turn help to eliminate any unconscious bias thoughts.
- Invest in reverse mentoring programmes and sponsorship programmes. Mentor someone different from you and encourage reverse mentoring within your Chambers. Ideally aim for two or more degrees different across dimensions like age/race/gender/educational background/class etc.
- To reduce the impact of unconscious bias it has to be led with the tone from the top. It is a long process to change minds or behaviour however unconscious bias has to be recognised as a “massive problem”. The negative comments on the unconscious bias work should not be used to stop trying to make the courtrooms and workplace more inclusive and to reduce barriers to inequality.
The courtroom requires modernisation and transformation in order to eliminate unconscious bias. This is possible with persistence and commitment to ensure true equality and justice. Above all, bravery and courageousness are required for this positive change to take place in and out of the courtroom. Will you be part of the solution and act today?
The Miranda Brawn Diversity Leadership Foundation offers reverse mentoring and sponsorship programmes to chambers and can be reached at: www.tmbdlf.com
By Dr Miranda K. Brawn MBA FRSA
Multi award winning Dr Miranda K. Brawn is a British businesswoman, lawyer, philanthropist, non-executive director and board advisor for global organisations across law, finance, technology, engineering (electrical vehicles) and third sector industries. Her background includes being a financial executive as an investment banker and hedge fund sales trader working for top global banks such as Goldman Sachs and JPMorgan. She founded and is the president of the award-winning The Miranda Brawn Diversity Leadership Foundation www.tmbdlf.com, a registered UK Charity in 2016. She is best known for her international public speaking and activism to eliminate the global diversity, equity and inclusion (DE&I) gaps since the early 2000’s across all sectors including law. She is also a member and board advisor of The Honourable Society of Lincoln’s Inn social mobility committee, investment committee, chapel committee and bar representation committee (BRC).
The views in this article are the views of the author and does not reflect the opinions of associated organisations.