Myth of Equal Justice Examined by ABA Panelists

By Jason Fujioka
American Bar Association
Aug. 6, 2011

TORONTO — “Across the United States, if not the world, there is some sense that because we have a president who is African-American, that things have changed and racism has gone out the window,” said Dennis Archer, former mayor of Detroit and past ABA president, speaking yesterday at “’Implicit Bias’ and the Myth of Equal Justice,” a program at the American Bar Association’s annual meeting in Toronto. “But I will tell you that racism is alive and well.”

Archer was joined by a panel that included Dahlia Lithwick, senior editor at Slate; Jeffrey Rachlinski, professor at Cornell Law School; and Mark Geragos, principal of law firm Geragos & Geragos, to discuss the problem of bias in the justice system.

“I see [bias and racism] on a daily basis,” said Geragos, who is a noted criminal defense attorney from Los Angeles. “Anybody who walks in any jail or any prison in California can’t for a minute think that racism is dead or that we’ve made a lot of progress because the prisons are filled disproportionately with people of color.”

Citing statistics from 2003, Archer said that there were 2.1 million people behind bars in the United States, and 40 percent were African-American and 23-25 percent were Hispanic—far higher than the percentage of the U.S. population that these groups make up.

Rachlinski, who has written extensively on the influence of human psychology on decision-making by courts, said that a recent Tufts University study showed that both African-Americans and whites perceive a decline in racism from generations ago.

However, Geragos believes that the perception may exist because racism is just less obvious than it was years ago. “We’ve become somewhat more sophisticated as a culture and as a society, in terms of being politically correct in how we express [our biases].”

Archer agreed with Geragos, and said that Americans’ treatment of Muslims following 9/11 is an example of the racism that can occur when political correctness does not keep it in check.

Said Geragos, “It hasn’t become politically incorrect to sublimate any of your feelings or biases against Muslims so therefore, Muslims can be demonized. You can say what you want.”

Lithwick said bias and racism isn’t just prevalent in the criminal justice system. They also affect the civil justice system, and there are several biases at work at the same time, such as those related to gender and sexual orientation. As a reporter on issues related to the U.S. Supreme Court, Lithwick noted the subtle racism in the confirmation hearings of Justice Sonia Sotomayor. She recalled Sotomayor being asked if she was a bully because of her aggressiveness. “No one ever asks if Antonin Scalia is a bully.“

Human judgment involves two different mental processes: intuition and deliberation. Rachlinski said that people often make bad judgments in the justice system because they rely too much on intuition.

Rachlinski explains that intuition involves reasoning by association and emotion, while deliberation is deductive and rule based. “Intuition is a very rapid way of processing the world.

“The problem with modern judgment in a complex society comes because the intuitive system is fast, confident and operates a bit outside the conscious sphere of thought,” he said.

Both types of reasoning serve important purposes when it comes to decision-making, but when reasoning involves the justice system, it is important to be aware of the biases clouding judgment, the panelists concluded.