Seeing Black: Unconscious Bias and Pro Bono Lawyers

Lillian Moy

Lillian Moy

The events of the last year in Ferguson, Staten Island and Baltimore have focused the public and the legal community on racism and unconscious bias in the criminal justice system, particularly in policing. Seeing Black, an article by Jennifer Eberhardt and three other psychologists, discusses their research and findings that many law enforcement officers “see black” resulting in their unconsciously seeing criminal activity and criminal defendants. It’s not much of a leap to conclude that others in the justice system, including lawyers, also unconsciously and automatically “see black.” and may make negative judgments about key aspects of our work, e.g., the credibility of your client or a key witness.

I cannot explain unconscious or implicit bias in this blog. I commend to you this video which talks about one community’s study of implicit bias and their attempts to mitigate bias in their juvenile justice system. In the Charlotte-Mecklenburg County Juvenile Justice System, the community — including judges, guardians ad litem, social services, law enforcement and court personnel — have banded together to raise awareness of the disproportionate negative treatment of people of color and provide training to mitigate implicit bias in their system. This is just one example of how lawyers can mitigate the impact unconscious bias can have on our practice and courts. We should all try to find ways we can do the same in the legal systems and courts in which we practice.

If you have never taken the Implicit Bias test, please go to https://implicit.harvard.edu/
implicit/selectatest.html You can pick a bias to explore: weight, race, sexual orientation, religion, gender. We have grown up learning, developing and strengthening automatic connections between words, characteristics, values and beliefs. These automatic connections do not necessarily produce acts of overt or explicit bias towards blacks, poor people or any other groups of people of color. They do, however, make it easy to, in varying degrees, automatically associate people of color or poor people with negative traits, characteristics or actions. These implicit or unconscious biases greatly color the actions we take, the determinations we make and the way we see and represent clients or make decisions about how to handle their cases.

As a pro bono volunteer, you may see that you are working in a legal system that has historically under-served and denied justice to people of color and those who are poor. I ask you to consider what we as pro bono and legal aid leaders can do to raise understanding about unconscious and implicit bias in the legal system. I hope we start talking about it. Without shining the light on implicit bias, we cannot change our biases – or affect their disproportionate negative impact in our courts on people of color. Many of us have already called upon our local police departments to increase implicit bias training so that they can understand and work to change biases that are, with support, training and understanding, indeed malleable. We should do the same.

I call upon you as legal aid and pro bono lawyers to take the Implicit Association Test on race, to talk about your results, to examine data, to call for implicit bias training, and to shine the light on how unconscious and implicit bias affects us as lawyers and decision makers in the civil and criminal court systems. Will you?

Lillian M. Moy is Executive Director of the Legal Aid Society of Northeastern New York and a member of the ABA’s Standing Committee on Pro Bono and Public Service.

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