PGP Mediation Blog by Phyllis G. Pollack
Recently, I attended a Zoom presentation sponsored by the American Jewish Committee San Francisco entitled, “Judging Implicit Bias: The Role of Implicit Bias in Judicial Decision-making.” Two of the presenters- University of Hawaii Professor Justin D. Levinson and Mark Bennett, U. S. District Judge (ret.) discussed an empirical study they conducted on 239 sitting federal and state judges regarding their implicit bias towards “largely favored minority groups” (or the “Model Minority”)- Asians Americans and Jews. (Levinson, Justin D., Bennett, Mark W., and Hioki, Koichi, “Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes” 69 Florida Law Review 63, 86 (No. 1, January 2017).)
The authors chose to focus on “. stereotypes of Asians and Jews in America for several reasons.” (Id. at 85.) First, they “…wanted to investigate the breadth of implicit bias in federal and state judges beyond Black and White. (Id.) In the earlier pages of this law review article, they discussed the many implicit bias studies focused on racism. (See, pages 75-79.) Second, although there has been much discrimination against these two groups both within and outside of the legal system, in recent history (as of 2017) such discrimination had lessened. Third, “…both of these groups are perceived largely as American success stories, yet somewhat contradictory data complicates these narratives…”. (Id.) That is, although these two groups are perceived to be successful, they still face discrimination.
To conduct the study, then U.S. District Judge Bennett sent emails to his colleagues inviting them to join. Two hundred and thirty-nine (239) judges agreed. One hundred and eighty were federal judges of which 100 were district court judges and 80 were magistrate judges. They represented all of the federal judicial circuits. Further, fifty-nine (59) judges from eight state courts also participated. 71% of the judges were male; 29% were female. The vast majority (91.6%) identified as White while 2% identified as Asian and 2% identified as mixed race. The majority of these judges were between the ages of 51-70 years. (Id. at 97.)
The judges were asked to take an Implicit Association Test (IAT), then to agree or disagree to certain statements regarding the attributes of Asians and Jews, and then to review a pre-sentence report of an individual who had pled guilty to fraud using the sentencing guideline of 151-235 months. The information provided in the report reflected a defendant who either was Asian or Jewish. (Id. at 98-102.)
The results indicated the existence of implicit bias:
…(1) judges displayed strong to moderate negative implicit biases towards Asians and Jews, (2) state judges self-reported stronger anti-Asian attitudes than federal judges, (3) Catholic and Protestant judges held stronger pro-Christian, anti-Jewish biases than “no religion” judges, (4) Protestant judges self-reported some stronger anti-Asian biases than “no-religion” judges, (5) participants ‘ pro-Christian, anti-Jewish implicit bias levels predicted shorter sentencing of a Christian defendant. The study further found that federal district court judges sentenced … Jewish defendants to longer sentences than Christian defendants and that some state court judges sentenced Asian defendants to shorter sentences than White defendants. (Id. at 70.)
The implications of these results are significant. Judges have a tremendous amount of discretion. In a criminal matter, such discretion is exercised at every step of the proceeding- from arraignment to setting bail, to granting or refusing a continuance or a change in venue, to examining the state’s evidence during a preliminary hearing, to separating the defendants for trial, to changing a plea, to selecting a jury (and ruling on challenges), to evidentiary issues during trial, to jury instructions, to accepting a verdict, to declaring a mistrial and finally sentencing and post-trial motions.
Likewise, this discretion manifests itself in a civil trial as well- from ruling on motions to dismiss, on motions for a default and default judgment or to set aside same, on motions to amend (or strike) the pleadings, on motions to shorten or extend time, on discovery motions, on summary judgment (or summary adjudication) motions, to trial matters including motions to consolidate or bifurcate the trial, selecting the jury and the challenges to a juror, evidentiary issues including the admission and exclusion of evidence and the order of evidence presented, jury instructions, and the verdict and post-trial motions including motions for judgment notwithstanding the verdict and for mistrial. (Id. at 72-73 and 73 n. 27)
So, while much has been written about the implicit biases that the parties and counsel may have (and even the mediator!), this study indicates that federal judges (and to some extent state court judges) who are supposed to be fair, impartial, and objective are implicitly biased and unwittingly, allow it to affect their discretion.
Which is all the more reason to settle matters at mediation. At least the parties will maintain control and avoid the implicit bias of the judge.
… Just something to think about.