Awareness but Not Suppression: Changing Behavior and Implicit Bias

Implicit Bias: A primer

Campaign speeches, Twitter hashtags, scholarly articles, books, and the news—all places you may have heard the term “implicit bias.”  But what is it? Essentially, it is “the brain's automatic, instant association of stereotypes or attitudes toward particular groups, without our conscious awareness.” (Ret.) Hon. Mark W. Bennett, Introduction to Implicit (Unconscious) Bias, 89 The Advoc. (Texas) 35 (2019). Put another way, implicit bias is the way the brain unconsciously lumps things together to process more quickly. It is this process, and how it affects jurors, that has many concerned.

Think of peanut butter. Don’t do anything else. Just think of peanut butter. Other things probably come into your mind once you do. Many people would think of jelly. Even if you are not a PB&J fan, you may still have made this association simply because you picked up on the associations of your family, friends, or  commercials on TV. In American society, thinking of peanut butter often leads to thinking of jelly.

Unfortunately, peanut butter is not the only topic where Americans find implicit biases. Well-meaning people also have implicit biases about race and sex. In one study, researchers discovered that female musicians auditioning for orchestras were fifty percent more likely to advance past initial rounds and significantly more likely to be ultimately selected if the auditions were “blind auditions”—those hiding the identity of the applicants. Additionally, “in simulations, Americans are faster and more accurate when firing on armed blacks than when firing on armed whites, and faster and more accurate in electing to hold their fire when confronting unarmed whites than when confronting unarmed blacks.” Gregory S. Cusimano, Implicit Unconscious Bias, 79 Ala. Law. 418 (2018). It is exactly these kinds of associations that raise concerns about juror impartiality.

Jurors and Implicit Bias

Keeping racism and sexism out of jury deliberations is important to ensure justice is important. But saying that a person is implicitly biased regarding race or sex is not the same thing as saying that a person is racist or sexist. Those terms imply a consciousness or awareness of the thought process that is absent when we refer to implicit bias, but this is still a big problem. It is such a big problem that it would likely be impossible to form a jury absent of any implicit bias. If implicit bias is going to be on the jury, what can we do about it?

Suppressing Implicit Bias

Some have suggested that tools, such as the Implicit-Association Test (IAT), designed to reveal a person's implicit bias can simply resolve the issues. Recently others have argued that tools like the IAT may not be measuring implicit bias. Since social scientists and other experts have different opinions, what do we really know about changing implicit biases in jurors? We know two important things.

First, suppression does not work. “[A] 2017 meta-analysis, which examined 494 prior studies, concluded that decreasing implicit bias did not affect behavior.” Gregory S. Cusimano, Implicit Unconscious Bias, 79 Ala. Law. 418 (2018). Understanding why suppression fails is not difficult. For example, do not think of a polar bear. Clear your mind, and make sure you are not thinking about a polar bear. The challenge itself is distracting and actually causes the thing it attempts to prevent. This is called the rebound effect, and it means that trying to suppress our implicit biases does not result in a change in our behavior--it may actually force us to further consider our biases. Consequently, forcing jurors to take the IAC and simply instructing jurors to stop thinking about these associations is no solution.

Second, external motivation is also ineffective. Gregory S. Cusimano, Implicit Unconscious Bias, 79 Ala. Law. 418 (2018). Studies have shown that individuals that have internal motivation to be aware of their biases and reduce these biases are more successful at changing them. External commands or measures to control this change actually make change more difficult. Therefore, any systems we create to address implicit bias will need to treat jurors as part of the solution and not the problem.

So while we do not have the ultimate solution, these two conclusions give rise to a question for a new beginning. How do we help jurors gain awareness of this thing that affects us all, become aware of how it affects them, and be self-motivated to change their behavior? Answer this and our juries will be closer to offering justice for all.