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Implicit Bias and Criminal Justice Allison Elgart Legal Director.

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1 Implicit Bias and Criminal Justice Allison Elgart Legal Director

2  Equal Justice Society = civil rights and legal strategy group based in SF  Intersection of law and social science 2 WHO WE ARE

3 1)Your mind plays tricks on you. 2)Overt racism has given way to implicit bias and structural racism. 3)Implicit bias has an undeniable impact on our policies and decisions. 4)Litigators can help address implicit biases. 5)Judges can bring these issues to the forefront. TOP 5 THINGS TO KNOW

4 YOUR MIND PLAYS TRICKS ON YOU

5 5 OVERT RACISM  IMPLICIT BIAS AND STRUCTURAL RACISM  BEHAVIOR What Would You Do? Hosted by John Quinones Stolen Bike Scenario – Friday, May 7, 2010 (Repeated July 8, 2011)

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8  People who are frightening and dangerous  create policies to protect ourselves from them  People who are threatening  less willing to protect them from unjust laws  People who are more likely to commit crimes  build more jails and fewer schools 8 IMPLICIT BIAS AND DECISION-MAKING

9  New analysis of the problem:  NOT exclusive focus on consciously- biased actors  Work to expose the expose the subconscious and subtle forms of bias and fear  Talk about bias and race  Look for patterns 9 LITIGATORS AND IMPLICIT BIAS

10  Judges can play an important role in debiasing the courtroom.  Give jurors examples of implicit biases  Show “Stolen Bike Scenario” video clip to jurors  Jury instructions  Juror verdict certification form  Juror pledge 10 JUDGES AND IMPLICIT BIAS

11  Do not decide the case based on “implicit biases.” As we discussed in jury selection, everyone, including me, has feelings, assumptions, perceptions, fears, and stereotypes, that is, “implicit biases,” that we may not be aware of. These hidden thoughts can impact what we see and hear, how we remember what we see and hear, and how we make important decisions. Because you are making very important decisions in this case, I strongly encourage you to evaluate the evidence carefully and to resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. 11 IMPLICIT BIAS JURY INSTRUCTIONS (JUDGE MARK BENNETT)

12 12 You must decide during your deliberations whether or not the prosecution has proved the guilt of each defendant on each offense charged beyond a reasonable doubt. In making your decision, you are the sole judges of the facts. You must not decide this case based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluation of that evidence, your reason and common sense, and these instructions.

13 13 Reach your verdict without discrimination. In reaching your verdict, you must not consider the defendant’s race, color, religious beliefs, national origin, or sex. You are not to return a verdict for or against the defendant unless you would return the same verdict without regard to his race, color, religious beliefs, national origin, or sex.

14 14 JUROR CERTIFICATION FORM (JUDGE MARK BENNETT)

15 15 JUROR CERTIFICATION FORM (JUDGE MARK BENNETT) By signing below, each juror certifies that consideration of the race, color, religious beliefs, national origin, or sex of the defendant was not involved in reaching his or her individual decision, and that individual juror would have returned the same verdict for or against the defendant on the charged offense regardless of race, color, religious beliefs, national origin, or sex of the defendant.

16 16 JUROR PLEDGE (JUDGE MARK BENNETT)

17 I will not decide the issues in this case based on biases. This includes gut feelings, prejudices, stereotypes, personal likes or dislikes, sympathies, or generalizations. 17 JUROR PLEDGE (JUDGE MARK BENNETT)

18 18 Join us!


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