Implicit racial bias in public defender triage.

• Author: Richardson, L. Song
• Position: Symposium on Gideon v. Wainwright

ESSAY CONTENTS INTRODUCTION I. OVERVIEW OF IMPLICIT RACIAL BIASES II. PUBLIC DEFENDER TRIAGE III. IMPLICIT BIASES' EFFECTS ON TRIAGE JUDGMENTS A. Biased Evaluations of Evidence B. Biased Interactions C. Biased Acceptance of Punishments 1. Implicit Dehumanization 2. Features-Based Implicit Bias IV. RECOMMENDATIONS A. Office Culture B. Objective Triage Standards C. Accountability D. Awareness E. Intentional Goals CONCLUSION INTRODUCTION

As we commemorate the fiftieth anniversary of the Supreme Court's landmark decision in Gideon v. Wainwright, there is little doubt that its promise to provide "the guiding hand of counsel" to indigent defendants remains largely unrealized. (1) There are many reasons for this, including the lack of political will to fulfill Gideon's promise by guaranteeing adequate funding and imposing caseload limits. Although some jurisdictions created public defender (PD) offices to meet the demand for services, attorneys in the majority of these offices handle cases well over the maximum recommended limit.

Scholars rightly bemoan the current state of indigent defense. However, insufficient attention has been paid to the fact that, until much-needed changes in the provision of indigent defense services occur, PDs will engage in triage, the process of prioritizing cases for attention. This reality raises important questions about how to guide attorney decisionmaking in order to avoid ad hoc judgments. We focus on state PDs rather than on assigned counsel and contract systems because state PD offices handle the majority of indigent cases in state criminal proceedings. (2)

Almost no attention has been paid to the effects that unconscious, i.e., implicit, biases may have on PD decisionmaking.3 This is surprising because over three decades of well-established social science research demonstrates that these biases are ubiquitous and can influence judgments, especially when information deficits exist. Worse, these biases are likely to be particularly influential in circumstances where time is limited, individuals are cognitively taxed, and decisionmaking is highly discretionary-exactly the context in which PDs find themselves. Thus, the domain of PDs and triage presents a rare confluence of factors ripe for the influence of implicit biases (IBs) and consequently deserves far more scholarly treatment than it has received.

We argue that it is critical to consider the probable effects of IBs on PD decisionmaking because zealous and effective advocacy is a scarce resource in the current environment. Thus, the distribution of this resource should not be based on unconscious judgments tied to a defendant's race. In the Parts that follow, we consider how IBs may affect PD decisionmaking and end with some suggestions for safeguarding against their influence. This Essay focuses on the effects of IBs on black clients because psychological research disproportionately addresses anti-black prejudice. However, IBs are likely to impact judgments of other clients who are similarly stereotyped as dangerous and criminal.

I. OVERVIEW OF IMPLICIT RACIAL BIASES

Implicit social cognition is a branch of psychology that studies how mental processes that occur outside of awareness and that operate without conscious control can affect judgments about and behaviors toward social groups. (4) These unconscious processes are simply an extension of the way humans think and process information. Briefly stated, our mental processes facilitate decisionmaking by making automatic associations between concepts. (5) For example, people might automatically associate "doctor" with "hospital" and other related ideas. These associations are linked in our minds because they often occur together.

Implicit racial biases refer to the unconscious associations we make about racial groups. The existence of these biases is consistent with the conclusion of more general research that we automatically and unconsciously use heuristics (6) to cope with the enormous amount of information that bombards us. (7) Implicit racial biases facilitate our ability to "manage information overload and make decisions more efficiently and easily" (8) by "filtering information, filling in missing data, and automatically categorizing people according to cultural stereotypes." (9) Like all unconscious mental processes, implicit racial biases

are unintentional because they are not planned responses; involuntary, because they occur automatically in the presence of an environmental cue; and effortless, in that they do not deplete an individual's limited information processing resources. Those characteristics can be contrasted with conscious processes, or mental activities of which the person is aware, that they intend, that they volitionally control, and that require effort. (10) The fact that these biases are unconscious means that they "are not consciously accessible through introspection." (11)

We use the term implicit racial biases to refer both to unconscious stereotypes (beliefs about social groups) and attitudes (feelings, either positive or negative, about social groups). Implicit stereotypes and attitudes result from the practice we get associating groups (e.g., blacks) with traits (e.g., criminality). This practice stems from repeated exposures to cultural stereotypes that are ubiquitous within a given society. For instance, the cultural stereotype of blacks as violent, hostile, aggressive, and dangerous persists within our society. (12) Merely being aware of these stereotypes, without personally endorsing them as correct, is sufficient to activate unconscious stereotypes in a person's mind-often resulting in chronic associations that we call implicit attitudes. (13) The underlying theory is that some groups (again, like blacks) are so commonly associated with negative traits (again, like criminality) that there is a general tendency to categorize the group with anything negative because of the overall negativity of the associations.

IBs can be activated by racial cues present in the environment, (14) including another person's skin color, age, gender, and accent. (15) Where blacks are concerned, even thinking about crime may be sufficient to activate IBs. This is because the association between blacks and crime is so pervasive that it has become bidirectional--thoughts of criminality unconsciously activate thoughts of blacks, and reciprocally, thoughts of blacks activate thoughts of crime. (16)

Over three decades' worth of research repeatedly demonstrates that IBs, once activated, influence many of our behaviors and judgments in ways we cannot consciously access and often cannot control. (17) Furthermore, IBs can predict real-world behaviors. (18) For instance, one study found that for every additional standard deviation of added IB, employers were five percent less likely to hire a job applicant with an Arab- or Muslim-sounding name than a white-sounding name. (19)

There is ample reason for concern that IBs will affect public defenders' judgments because IBs thrive in situations where individuals make decisions quickly with imperfect information (20) and when they are cognitively depleted, (21) anxious, (22) or distracted. (23) As we discuss next, PDs work in precisely this type of environment.

II. PUBLIC DEFENDER TRIAGE

Indigent defense is in a state of crisis. Defender offices are chronically underfunded, resulting in crushing caseloads. Most offices do not have caseload limits, and those that do regularly surpass them. (24) Thus, despite the existence of dedicated and committed PDs, the lack of adequate resources coupled with unmanageable caseloads make it virtually impossible to provide zealous and effective representation to every client.

The financial impediments to realizing the promise of Gideon must be remedied. In the interim, however, PDs are forced to make difficult resource-allocation decisions among their clients. These resources include an attorney's time and mental energy, as well as purely monetary resources, such as funds to hire experts.

In an ideal world, defenders would have unlimited opportunities to interview and investigate all of the state's witnesses, canvass the neighborhood where the crime occurred, and otherwise thoroughly investigate the case. Furthermore, defenders could conduct legal research, file motions, request funds for expert assistance, and engage in extensive plea negotiations. They also would have the time to develop relationships with clients, which is critical because clients have important information that can aid attorneys in their trial preparation and their arguments for pretrial release, better plea offers, and reduced sentences.

However, most PDs do not work in an ideal environment. They cannot realistically provide each client with zealous and effective advocacy. PDs are forced by circumstances to engage in triage, i.e., determining which clients merit attention and which do not. As one defender put it, "The present M.A.S.H. style operating procedure requires public defenders to divvy effective legal assistance to a narrowing group of clients, [forcing them] to choose among clients as to who will receive effective legal assistance." (25)

It is no wonder that the provision of indigent defense is often likened to medical triage. (26) Similar to hospital emergency rooms, PD offices face demands that far outpace their resources. In order to save time to defend the cases that they find deserving, attorneys may plead out other cases quickly (27) or go to trial unprepared. (28) This reality means that for most PDs, the question is not "how do I engage in zealous and effective advocacy," but rather, "given that all my clients deserve aggressive advocacy, how do I choose among them?" (29)

We are unaware of any PD office that has formal triage standards to help attorneys make these difficult judgments. Even if standards do exist, they cannot completely eliminate attorney discretion. For instance, even with...