1. Implicit Bias and Challenges to Fairness: Should you Trust Your Gut in the Heat of the Moment? © 2010 All rights reserved American Judges Association Annual Conference October 4, 2010 J. Robert Lowenbach, JD District Court Judge, Ret. Jack J. Gardner, Psy.D. Licensed Psychologist

2. October 4, 2010Life & Death Decisions2 Judge's decision to let molester post appeal bond is criticized A man who faces a five-year prison term for molesting a teenage girl can be released on $1 million bond while he appeals the conviction. That judicial decision drew strong criticism from the girl's father. Tulsa World June 15, 2007 Judge Criticized After Allowing Children to Stay With Parents Convicted of Child Abuse Some Asking Oklahoma Judge to Step Down News 9 – Oklahoma City

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4. October 4, 2010Life & Death Decisions4 Goals Understand Decision Making Processes Consider Effects of Bias in Decision Making by analyzing discretionary decision points Improve Decision Making Capability Provide a non-legal Tool Kit for Decision Making

5. October 4, 2010Life & Death Decisions5 We Make Decisions Every Day Day to Day Decisions –Purchases –Food Choices –Which route to take to the grocery store More Complicated Decisions –Business Decisions –Who goes to prison and who gets probation –Whether to grant or deny a motion for summary judgment

6. October 4, 2010Life & Death Decisions6 2 Types of Decisions Emergency Decisions (Biological Imperative) Fire Tsunami Earthquake Tornado Imminent risk to life of limb Imminent risk to safety of child

7. October 4, 2010Life & Death Decisions7 Non-Emergency Decisions (Time to contemplate) – Sentencing – Admission decisions – Motion for New Trial – 35(b) and (c) Motions – Treatment Issues

8. Perhaps there is a 3 rd type of Decision (Time Sensitive but Not Biological Imperative) Ruling on evidentiary objections Temporary Restraining Orders Agreeing to bond/Setting bond/seeking revocation of bond Motions on suspension of parenting time or custody under 14-10-129(4) Whether to confront a suspicious person October 4, 2010Life & Death Decisions8

9. We have to make decisions every day about – how we choose to think; how we choose to feel; and how we choose to behave October 4, 2010Life & Death Decisions9

10. Hypothetical Case Scenario October 4, 2010Life & Death Decisions10 Facts: Issues: Who should get custody? What parenting time should be ordered? Should parenting time be supervised? Should father or mother be required to surrender their passports?

11. October 4, 2010Life & Death Decisions11 Focus How to make the best decisions possible in emergency/time sensitive... situations and... How to make the best decisions possible in Non-Emergent/time flexible... situations

12. Play Video http://www.youtube.com/watch? v=ixUbdeXCp0M http://www.youtube.com/watch? v=ixUbdeXCp0M October 4, 2010Life & Death Decisions12

13. October 4, 2010Life & Death Decisions13 Bias Prejudice in favor of or against one thing, person, or group compared with another, usually in a way considered to be unfair

14. ABA Model Code of Judicial Conduct 2007 Canon 1 RULE 1.2 A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. October 4, 2010Life & Death Decisions14

15. ABA Model Code of Judicial Conduct 2007 Canon 2 October 4, 2010Life & Death Decisions15 RULE 2.3 Bias, Prejudice, and Harassment (A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice. (B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judges direction and control to do so.

16. ABA Model Code of Judicial Conduct 2007 Canon 2 October 4, 2010Life & Death Decisions16 RULE 2.3 Bias, Prejudice, and Harassment (C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

17. Hypothetical Case Scenario Facts: October 4, 2010Life & Death Decisions17

18. Bias Influences Every Decision We Make Bias is linked to emotions. Fear is a powerful motivator.

19. October 4, 2010Life & Death Decisions19 Bias Explicit (the biases we can identify and try to override) Implicit (the biases we dont know we have that effect/direct our decisions)

20. October 4, 2010Life & Death Decisions20 Quick Test Look at the next slide for 20 seconds –Write down five observations –Write down a one sentence decision regarding one of the children

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22. October 4, 2010Life & Death Decisions22 –Write down five observations –Write down a one sentence decision regarding one of the children. –Keep this for later.

23. The Decision Process

24. October 4, 2010Life & Death Decisions24 Definition: de · ci · sion The process of coming to a conclusion or determination about something –Something that one chooses or makes up his/her mind about after considering other choices Firmness in choosing something –The ability to choose or decide in a clear and definite way without much hesitation or delay

25. October 4, 2010Life & Death Decisions25 Factors Driving Decisions Sensory experience –Sight/Visual –Sound/Auditory –Smell/Olfactory –Tactile/Feel –Gustatory/Taste Emotional Experience Cognitive Process

26. How much information do you need to make a good decision? October 4, 2010Life & Death Decisions26

27. Can too much data be misleading? 98 MRIs studies sent to doctors Diagnosed 2/3 of patients as exhibiting serious problems Bulging, protruding, or herniated discs Nearly 90 percent of these patients exhibited some form of disc degeneration The Kicker: These patients had experienced NO BACK PAIN OR RELATED BACK PROBLEMS! October 4, 201027Life & Death Decisions

28. Hypothetical Case Scenario Facts: October 4, 2010Life & Death Decisions28

29. October 4, 2010Life & Death Decisions29 Brain Involvement

30. October 4, 2010Life & Death Decisions30 Pre-frontal Cortex Amygdala Thalamus Sensory Cortex Hippocampus

31. October 4, 2010 Life & Death Decisions 31 Cortex Sensory Thalamus Amygdala Basic Neurobiology of Emotions/Fear Dr. David Lisak, University of Massachusetts, Boston

32. October 4, 2010Life & Death Decisions32 The high road The low road FEAR Dr. David Lisak, University of Massachusetts, Boston

33. October 4, 2010Life & Death Decisions33 SNAKE? VINE? Dr. David Lisak, University of Massachusetts, Boston

34. October 4, 2010Life & Death Decisions34 VINE Phew! Vine Dr. David Lisak, University of Massachusetts, Boston

35. October 4, 2010Life & Death Decisions35 SNAKE! Fear Dr. David Lisak, University of Massachusetts, Boston

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37. October 4, 2010Life & Death Decisions37 Heuristics Stereotypes, thought patterns, groups of memories that organize our thoughts Heuristics are thought short cuts These may be conscious or unconscious Many biases are based on heuristics

38. Heuristics October 4, 2010Life & Death Decisions38 GO

39. October 4, 2010Life & Death Decisions39 Factors that may result in better decisions? How do I feel about this? What do I think about this? My decision is________.

40. Hypothetical Case Scenario Facts: October 4, 2010Life & Death Decisions40

41. October 4, 2010Life & Death Decisions41 Components of a Decision Emotional –Subtle –Unconscious –Stupid Brain –Instant or very quick

42. October 4, 2010Life & Death Decisions42 Components of a Decision Cognitive –Explicit –Conscious –Often procedure driven –Often have predictable outcome –A slow process

43. The Stroop Test October 4, 2010Life & Death Decisions43

44. YELLOW BLUE ORANGE BLACK RED GREEN PURPLE YELLOW RED ORANGE GREEN BLACK BLUE RED PURPLE GREEN BLUE ORANGE October 4, 2010Life & Death Decisions44

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47. Heuristics October 4, 2010Life & Death Decisions47 GO

48. Good News! Although we are slower in giving our answers, we can be much more accurate by considering all of the options If we are motivated and if we recognize that we are making errors we can correct our mistakes and act in a just and ethical manner October 4, 2010Life & Death Decisions48

49. October 4, 2010Life & Death Decisions49 What type of decisions to you prefer? Emergent (Time Sensitive) Non-Emergent (Time Flexible)

50. October 4, 2010Life & Death Decisions50 Quick Test True or False 1.All people have biases. 2.Biases are unconscious. 3.There are no subtle biases. 4.Biases are explicit. 5.Education reduces bias. 6.All decisions reflect an individual bias. 7.I have biases. 8.Relationships influence bias. 9.Biases influence decisions. 10.Biases influence actions.

51. Implicit Association Test www.implicit.harvard.edu www.implicit.harvard.edu Unconscious (implicit) associations influence our decisions We make connections much more quickly between pairs of ideas that are already related in our minds than we do between pairs of ideas that are unfamiliar to us October 4, 2010Life & Death Decisions51

52. MaleFemale John Bob Amy Holly Joan Derek Peggy Mary Henry October 4, 2010Life & Death Decisions52

53. Male Female or or Career Family Lisa Matt Laundry Entrepreneur John Merchant Bob Cooking Holly October 4, 2010Life & Death Decisions53

54. MaleFemale or or FamilyCareer Sarah Derek Merchant Employment John Laundry Holly Domestic Entrepreneur October 4, 2010Life & Death Decisions54

55. See No Bias Shankar Vedantam http://www.washingtonpost.com/wp- dyn/articles/A27067-2005Jan21.htmlhttp://www.washingtonpost.com/wp- dyn/articles/A27067-2005Jan21.html October 4, 2010Life & Death Decisions55

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57. Hypothetical Case Scenario Facts: October 4, 2010Life & Death Decisions57

58. October 4, 2010Life & Death Decisions58 Personal Variables Affect Decision Making Gender (Decision maker and Subject of decision) Learning History –Abuse –Wonderful Childhood –Alcoholic Parent –Nurturing Teacher –Integrated/segregated schools –Racist parents/Tolerant Parents Educational Level Training Reduces Bias Race of person about whom decision is made Awareness of self

59. October 4, 2010Life & Death Decisions59 Play Video http://www.youtube.com/watch?v=ybDa0gSuAcg

60. Types of Bias

61. October 4, 2010Life & Death Decisions61 Group Decision May add to poor decisions –Avoid the herd mentality –Avoid Group Think –Its tough to be an iconoclast –It takes courage to make tough decisions

62. Preventing Group Think Leadership Openness to the ideas of others Internal confidence of group members A healthy, problem solving atmosphere October 4, 2010Life & Death Decisions62

63. October 4, 2010Life & Death Decisions63 Categorization Social categorization – –Identifying people as belonging to racial, ethnic, gender, religious and other types of groups

64. October 4, 2010Life & Death Decisions64 In-group Favoritism and Out-group Derogation We have a tendency to favor our own groups. We have a tendency to discriminate against (e.g., allocate fewer resources to, behave aggressively toward) groups to which we do not belong. Overestimate similarities within groups and differences between groups.

65. October 4, 2010Life & Death Decisions65 Stereotypes Beliefs about the traits or attributes typical of particular groups Stereotypes can be positive or negative Vary in degree of accuracy Even accurate stereotypes about groups are likely to be unreliable and unfair when used to judge an individual.

66. Hypothetical Case Scenario Facts: October 4, 2010Life & Death Decisions66

67. October 4, 2010Life & Death Decisions67 Rationalization Attempt to make sense of inequities in society People dont like to believe in an unjust world. If something bad happens to someone we tend to believe the person somehow deserved it. (Unconsciously blame the victim).

68. October 4, 2010Life & Death Decisions68 Rationalization Believe that groups low in status or actively oppressed must possess some trait that is responsible. These beliefs are even held by those who are in the low status group.

69. October 4, 2010Life & Death Decisions69 Confirmation Bias A type of selective thinking A tendency to notice and to look for what confirms one's beliefs and to ignore, not look for, or undervalue the relevance of what contradicts one's beliefs.

70. October 4, 2010Life & Death Decisions70 Confirmation Bias f MRI demonstrates areas of brain used in confirmation bias is driven more by emotion than thought.

71. October 4, 2010Life & Death Decisions71 Unconscious Bias Implicit memory –Most of what we remember is outside of conscious access. Implicit Memories are linked to Implicit Biases

72. October 4, 2010Life & Death Decisions72 Implicit Bias How the studies are done –Test subjects are shown a prime - a photograph of a white or black person or an attractive or unattractive person –The exposure is for.013 seconds. Subjects often report they did not see the picture and will have to guess. –They are then shown a word in white text on a black screen and timed on how quickly they could classify the word as either good or bad.

73. October 4, 2010Life & Death Decisions73 Implicit Bias White people are faster to judge positive words as good when proceeded by White-related primes This occurs despite subjects claims that they are not biased. Theoretically, implicit biases reflect stereotypes and prejudices people truly do not know they have. The biases are unintended but capable of leading to discriminatory or even deadly behavior.

74. October 4, 2010Life & Death Decisions74 Implicit Bias - Police Studies Subjects: College Students; Semi-Random Sample of Citizens. Subjects in a simulated police activity are presented with images of men holding either guns or harmless objects (cell phones, pop cans or wallets)

75. October 4, 2010Life & Death Decisions75 Implicit Bias - Police Studies Told to shoot only when target has a gun Subjects forced to make split second decisions are faster to shoot for a gun if the image is of a Black man than if he is White.

76. October 4, 2010Life & Death Decisions76 Implicit Bias - Police Studies Faster to make the safe (no shoot) response if target is a White than if Black. More likely to erroneously shoot a Black man than a White man if he is not holding a gun.

77. October 4, 2010Life & Death Decisions77 Implicit Bias - Police Studies "[Participants] set a more lenient criterion to shoot for African- Americans than for whites." This tendency was seen not just among Caucasian players, but also among players self-identifying as Black or Hispanic

78. October 4, 2010Life & Death Decisions78 Implicit Bias - Police Studies Studies indicate new police recruits behave the same as student subjects Police officers' training not only affected whether they chose to fire at a target, but made them less likely to shoot on the basis of race. If anyone is trigger-happy for minorities, it's society at large.

79. Hypothetical Case Scenario Issues: Who should get custody? What parenting time should be ordered? Should parenting time be supervised? Should father or mother be required to surrender their passports? October 4, 2010Life & Death Decisions79

80. Decision-Making Tool Kit

81. October 4, 2010Life & Death Decisions81 Im aware of my biases and I want to do the right thing!

82. October 4, 2010Life & Death Decisions82 De-escalate When ever possible alter a situation Or Your PERCEPTION of the situation From –An Emergency TO –A Crisis TO A Situation

83. October 4, 2010Life & Death Decisions83 We all deal with situations every day. Try to make everything a situation.

84. October 4, 2010Life & Death Decisions84 Opposite of Bias Thoughtful Careful Fair Objective

85. October 4, 2010Life & Death Decisions85 Decrease Bias Increase Accountability- the more accountable, the less likely to rely on stereotypes Avoid Time Pressure Maintain Vigilance from the start

86. October 4, 2010Life & Death Decisions86 Decrease Bias Decrease Confirmatory Bias. Look at lots of data from all sides of the issue Be willing to change your mind (flip-flop) Avoid Group Think Seek Consultation on hard cases Utilize protocols and procedures when ever possible

87. October 4, 2010Life & Death Decisions87 Decrease Bias Move faster on reversible decisions, s l o w e r on i r r e v e r s i b l e decisions. Use snap decisions only when required, and then only sparingly. (consider other possibilities – but know that your gut may be reliable)

88. October 4, 2010Life & Death Decisions88 Decrease Bias Emotions are part of decision making. Dont decide on the basis of fear or aggression but rather on the basis of compassion and competence. Educate yourself to your task. The better blinker is the one with the most training.

89. October 4, 2010Life & Death Decisions89 Decrease Bias To decrease negative bias utilize empathy by allowing at least a vicarious relationship about the person or family you are making a decision about. Decrease antagonism and disconnection. (Caveat: This may create reverse bias that leads to poor decisions. This allows the decision maker to error in a more benevolent direction.)

90. October 4, 2010Life & Death Decisions90 Decrease Bias Write down your ideas and look at your notes before making a final decision. Be aware of values directing decisions (i.e., protection of the community, best interests of the child; efficacy of rehabilitative process; due process; holding the guilty accountable, etc.)

91. Contact Information Jack Gardner, Psy.D Greeley Counseling Center 1228 8th St, Greeley, CO 80631 (970)356-8482 drjackg@mac.com drjackg@mac.com J. Robert Lowenbach, JD Best Practice Courts Judge in Residence 2559 55 th Avenue, Greeley, CO 80634 (970)302-7416 robert.lowenbach@judicial.state.co.us robert.lowenbach@judicial.state.co.us October 4, 2010Life & Death Decisions91