We are often told that “justice is color blind. But research continues to expose the fallacy of this contention, particularly when it comes to subconscious bias. And where must we worry about bias as affecting judgment? Consider these two statements:
1. “A [drug detection] dog’s… reliability is established for the purpose of admitting the dog’s alert where ‘the evidence presented, whether testimony from the dog’s trainer or records of the dog’s training, establishes that the dog is generally certified as a drug detection dog.’” United States v. Keeling, No. 3:16-CR-00127-TBR, 2017 U.S. Dist. LEXIS 88086, at *15-16 (W.D. Ky. June 8, 2017)
2. Rivers claims Frensley told him “the appellate judges were ‘old white men’ who would not go against another white judge for a young black man” and “that is just how it is.”… Frensley denies Rivers’ allegations that he used “racial implications” to force Rivers to execute the sentencing agreement, and stated such claims are “both nonsensical and untrue.” Rivers v. United States, No. 3:15 C 00108, 2017 U.S. Dist. LEXIS 67586, at *11 (M.D. Tenn. May 2, 2017).
The first, about the drug dog, suggests that all that matters is training; but what it omits is the bias of the drug dog handler. Consider this report from National Public Radio:
Police dogs searching for drugs sometimes “alert” for them when they’re not there. That raises questions about the influence of the dogs’ handlers. As NPR learned, there is now an effort by some in the training community to eliminate the influence of their handlers’ suspicions to make dog searches more fair.
The NPR report details an earlier study that
tested the abilities of fourteen certified sniffer dogs to find hidden “targets.” In reality, the dogs’ human handlers were also under the magnifying glass. They were led to believe there were hidden target scents present, when in fact there were none. Nevertheless, the dogs “alerted” to the scents multiple times — especially in locations where researchers had indicated a scent was likely.
https://www.npr.org/2017/11/20/563889510/preventing-police-bias-when-handling-dogs-that-bite (last visited December 14, 2017). Whether it is racial bias or just a pre-set notion of what circumstances make it appear likely that drugs will be present, a drug dog handler’s expectation may be the trigger for the ‘alert’ that drugs are present. Whether a search then finds something unlawful or just leaves the subject feeling aggrieved and humiliated, the problem is real.
Let’s go back to the comments. The second quote is from a case where a defendant, on post-conviction proceedings, claims he was pressured into accepting a plea deal in part because his lawyer told him that there was racial bias in judicial decision-making. Forget that the lawyer denied saying that; the question is, is race still [yet again] a thumb on the scales?
A recent article raises this concern over arguably the simplest of determinations – a judge’s assessment of the sincerity of the words “I’m sorry” when a defendant stands before the court for sentencing. After surveying an overwhelming body of research on how implicit or subconscious bias affects judicial decision-making in all aspects of a criminal case, the author turns to how remorse is assessed and concludes that
it is not surprising that judges have difficulty empathizing with defendants who seem at once radically different from the judge’s social group and irretrievably flawed. The second aspect of implicit social cognition important to understanding implicit bias in punishment is the problem of out-group empathy. Empathy allows us to “read” the emotional expressions of others more accurately, or at least pose the right questions so that understanding is possible.
Hanan, “Remorse Bias,” Missouri Law Review, Vol. 83, No. 2, 2018 Forthcoming, UNLV William S. Boyd School of Law Legal Studies Research Paper (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3079788#%23) .
And what is to be done? For the dogs, there is some training of dog handlers that now strives to remove or diminish the risk of handler ‘contamination’ of a dog’s judgment. For judges, the task is infinitely more difficult. Implicit bias training can go only so far. So it may fall to the advocate to have to recognize this risk and create new and more persuasive means of showing that “I’m sorry” represents true remorse to overcome a prejudgment that it does not.