Unconscious bias could affect judgments in court

Bias in the criminal justice system is a major concern in Illinois and across the country. Disparate sentencing and penalties have led to nationwide calls for criminal justice reform. However, one of the most concerning aspects of bias are the forms that are unintentional or subconscious. It can be more challenging to prove unconscious bias, but the effects on a defendant may be significant. Unconscious bias is a major field of study for natural and social scientists looking into how brain activity can affect behavior. Results have indicated that unconscious beliefs and social stereotypes can affect judgment even in contradiction with expressed beliefs.

Unconscious biases can affect the way that people interpret actions and motivations, judge people's actions and capacity for change, and make an array of decisions. While studies show that it is a common human phenomenon, this could also apply to judges making long-term decisions about the fate of a criminal defendant's life or liberty. Other studies show that judges regularly refer more on their intuition than on the power of deliberation, while holding strong beliefs about their capacity for objective thinking and decision-making. This can pose a danger, because intuition can be far more likely to be influenced by subconscious biases than a clearly laid-out, thoughtful process.

The consequences for black defendants in particular can be significant. Studies repeatedly show that black defendants are more likely to be held in pre-trial detention or given larger required amounts to make bail. They face higher sentences and are more likely to receive the death penalty than white defendants convicted of the same or similar crimes.

Bias and societal racism can be difficult obstacles for a person facing criminal charges to surmount. A criminal defense attorney may work with a client to challenge police and prosecution allegations and aim to avoid a conviction.

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