Implicit Bias: Why and How We Need to Alter the Criminal Jury System

Implicit Bias:
Why and How We Need to Alter the Criminal Jury System

Alexis Altshuler, USC 21'

What if I told you that the single most addressable threat to the U.S. criminal justice system was your own subconscious? Americans have advocated for reform of the judicial system since its inception, usually in the form of dramatic upheaval of the entire structure. However, where we could see the most immediate change is the place where we as citizens get to decide on the fate of the accused: the jury panel. The problem is that each one of us has a complex system of implicit biases which cannot be detected by ourselves nor by those who select the jury. So, the accused are subjected to our internal assumptions based on their race, age, sex, or gender. While there are ways to mitigate implicit biases over the course of one’s lifetime, it is difficult to do so in the short pre-trial timespan. Therefore, criminal trials must remove the possibility of this bias in the first place: the jury should not be able to see or hear the defendant, and they should only be made aware of the characteristics of the individual that are absolutely necessary to the case.

This solution is necessary for a number of reasons. Firstly, there are well-documented negative implications of implicit bias that we need to mitigate, such as the way racial bias leads to unequal treatment of Black defendants in trial. Secondly, unequal incarceration rates can cause serious harm to communities, and to exemplify these effects this paper will examine the case of the Los Angeles prison system. Finally, this solution is necessary because none of the common methodologies used to mitigate implicit bias are effective in the case of a jury trial. Therefore, the only possible way to remove jury bias from the courtroom is to eliminate all sources of bias by conducting trials in a medium that does not rely on the visualization of the defendant, such as a written transcript.

In order to tackle implicit bias, we’ll need to clearly define it and evaluate how it manifests. Implicit bias is an unconscious human tendency to develop associations between a group of people and events that take place. These associations generally stem from early life experiences, the media, and news programming, from which we take in information and decide what groups we should associate with what events.1 While this sorting process is a natural human tendency to divide the world into social groups, it can over-do its purpose and create an internal distinction between one’s self and the other, establishing an “us versus them” culture.2

The reason implicit bias is so undetectable is due to its ability to be surprisingly deviant from our stated intentions and explicit beliefs; we do not notice its presence until we base a decision off of an assumption connected to the bias.3 In relation to the criminal trial, this is important because of the way jurors are shown to reason toward their decision about the accused. According to a publication from the American Association for Justice, jurors often use what is called the “System 1” Cognitive System. System 1 is an automatic, associative, and process-opaque way of reasoning that helps individuals make conclusions when offered dense amounts of complex information.4 This is in contrast to the other type of human cognitive system, System 2, which operates via rationalization through information.  Using System 1, jurors “look for patterns to categorize the defendant's conduct, relying on personal experiences and social norms,” because this form of associative reasoning is often easier than applying the burden of proof.5 Here rests our issue. If the juror is able to see or hear the defendant, or is given any other means of characterizing them, then their subconscious will be naturally inclined to take the easier cognitive route. Jurors then reach conclusions based on biased associations toward the individual. They will be less likely to decide the verdict based on the concrete proof offered against the accused...

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