Implicit Bias and Challenges to Fairness: Should you Trust Your Gut in the Heat of the Moment? ©...
-
Upload
miguel-casey -
Category
Documents
-
view
218 -
download
0
Transcript of Implicit Bias and Challenges to Fairness: Should you Trust Your Gut in the Heat of the Moment? ©...
Implicit Bias and Challenges to Fairness: Should you Trust Your Gut in
the Heat of the Moment?© 2010 All rights reserved
American Judges AssociationAnnual Conference
October 4, 2010
J. Robert Lowenbach, JDDistrict Court Judge, Ret.
Jack J. Gardner, Psy.D.Licensed Psychologist
October 4, 2010 Life & Death Decisions 2
Judge's decision to let molester post appeal bond is criticizedA 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 WorldJune 15, 2007
Judge Criticized After Allowing Children to Stay With Parents Convicted of Child AbuseSome Asking Oklahoma Judge to Step Down
News 9 – Oklahoma City
October 4, 2010 Life & Death Decisions 3
October 4, 2010 Life & Death Decisions 4
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
October 4, 2010 Life & Death Decisions 5
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
October 4, 2010 Life & Death Decisions 6
2 Types of Decisions• Emergency Decisions
(Biological Imperative)
• Fire• Tsunami • Earthquake
• Tornado• Imminent risk to life of limb• Imminent risk to safety of child
October 4, 2010 Life & Death Decisions 7
• Non-Emergency Decisions(Time to contemplate)– Sentencing – Admission decisions– Motion for New Trial– 35(b) and (c) Motions– Treatment Issues
Perhaps there is a 3rd 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, 2010 Life & Death Decisions 8
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, 2010 Life & Death Decisions 9
Hypothetical Case Scenario
October 4, 2010 Life & Death Decisions 10
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?
October 4, 2010 Life & Death Decisions 11
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
Play Videohttp://www.youtube.com/watch?v=ixUbdeXCp0M
October 4, 2010 Life & Death Decisions 12
October 4, 2010 Life & Death Decisions 13
Bias
• Prejudice in favor of or against one thing, person, or group compared with another, usually in a way considered to be unfair
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, 2010 Life & Death Decisions 14
ABA Model Code of Judicial Conduct 2007 Canon 2
October 4, 2010 Life & Death Decisions 15
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 judge’s direction and control to do so.
ABA Model Code of Judicial Conduct 2007 Canon 2
October 4, 2010 Life & Death Decisions 16
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.
Hypothetical Case Scenario
Facts:
October 4, 2010 Life & Death Decisions 17
Bias Influences Every Decision We Make
Bias is linked to emotions. Fear is a powerful motivator.
October 4, 2010 Life & Death Decisions 19
Bias
• Explicit (the biases we can identify and try to override)
• Implicit (the biases we don’t know we have that effect/direct our decisions)
October 4, 2010 Life & Death Decisions 20
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
October 4, 2010 Life & Death Decisions 21
October 4, 2010 Life & Death Decisions 22
–Write down five observations
–Write down a one sentence decision regarding one of the children.
–Keep this for later.
The Decision Process
October 4, 2010 Life & Death Decisions 24
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
October 4, 2010 Life & Death Decisions 25
Factors Driving Decisions • Sensory experience
– Sight/Visual– Sound/Auditory– Smell/Olfactory– Tactile/Feel– Gustatory/Taste
• Emotional Experience
• Cognitive Process
How much information do you need to make a good decision?
October 4, 2010 Life & Death Decisions 26
Can too much data be misleading?
•98 MRI’s 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, 2010 27Life & Death Decisions
Hypothetical Case Scenario
Facts:
October 4, 2010 Life & Death Decisions 28
October 4, 2010 Life & Death Decisions 29
Brain Involvement
October 4, 2010October 4, 2010 Life & Death DecisionsLife & Death Decisions 3030
Pre-frontal Cortex
Amygdala
ThalamusThalamus
Sensory Cortex
Hippocampus
October 4, 2010 Life & Death Decisions 31
Cortex
Sensory Thalamus
Amygdala Basic Neurobiology of Emotions/Fear
Dr. David Lisak, University of Massachusetts, Boston
October 4, 2010 Life & Death Decisions 32
The “high” road
The “low” road
FEAR
Dr. David Lisak, University of Massachusetts, Boston
October 4, 2010 Life & Death Decisions 33
SNAKE?
VINE?
Dr. David Lisak, University of Massachusetts, Boston
October 4, 2010 Life & Death Decisions 34
VINE
Phew! Vine
Dr. David Lisak, University of Massachusetts, Boston
October 4, 2010 Life & Death Decisions 35
SNAKE!
SNAKE!
Fear
Dr. David Lisak, University of Massachusetts, Boston
October 4, 2010 Life & Death Decisions 36
October 4, 2010 Life & Death Decisions 37
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
Heuristics
October 4, 2010 Life & Death Decisions 38
GOGO
October 4, 2010 Life & Death Decisions 39
Factors that may result in better decisions?
• How do I feel about this?
• What do I think about this?
• My decision is________.
Hypothetical Case Scenario
Facts:
October 4, 2010 Life & Death Decisions 40
October 4, 2010 Life & Death Decisions 41
Components of a Decision• Emotional
– Subtle– Unconscious– “Stupid Brain”– Instant or very quick
October 4, 2010 Life & Death Decisions 42
Components of a Decision
• Cognitive– Explicit– Conscious– Often procedure driven– Often have predictable outcome– A slow process
The Stroop Test
October 4, 2010 Life & Death Decisions 43
YELLOW BLUE ORANGEBLACK RED GREEN
PURPLE YELLOW REDORANGE GREEN BLACK
BLUE RED PURPLEGREEN BLUE ORANGE
October 4, 2010 Life & Death Decisions 44
October 4, 2010 Life & Death Decisions 45
October 4, 2010 Life & Death Decisions 46
Heuristics
October 4, 2010 Life & Death Decisions 47
GOGO
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, 2010 Life & Death Decisions 48
October 4, 2010 Life & Death Decisions 49
What type of decisions to you prefer?
• Emergent (Time Sensitive)
• Non-Emergent (Time Flexible)
October 4, 2010 Life & Death Decisions 50
Quick TestTrue 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.
Implicit Association Testwww.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, 2010 Life & Death Decisions 51
Male FemaleJohn
Bob
Amy
Holly
Joan
Derek
Peggy
Mary
Henry
October 4, 2010 Life & Death Decisions 52
Male Femaleor or
Career FamilyLisa
Matt
Laundry
Entrepreneur
John
Merchant
Bob
Cooking
Holly
October 4, 2010 Life & Death Decisions 53
Male Femaleor or
Family CareerSarah
Derek
Merchant
Employment
John
Laundry
Holly
Domestic
Entrepreneur
October 4, 2010 Life & Death Decisions 54
See No BiasShankar Vedantam
• http://www.washingtonpost.com/wp-dyn/articles/A27067-2005Jan21.html
October 4, 2010 Life & Death Decisions 55
October 4, 2010 Life & Death Decisions 56
Hypothetical Case Scenario
Facts:
October 4, 2010 Life & Death Decisions 57
October 4, 2010 Life & Death Decisions 58
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
October 4, 2010 Life & Death Decisions 59
Play Videohttp://www.youtube.com/watch?v=ybDa0gSuAcg
Types of Bias
October 4, 2010 Life & Death Decisions 61
Group Decision
• May add to poor decisions– Avoid the herd mentality– Avoid Group Think– It’s tough to be an iconoclast– It takes courage to make tough decisions
Preventing “Group Think”
• Leadership
• Openness to the ideas of others
• Internal confidenceof group members
• A healthy, problem solving atmosphere
October 4, 2010 Life & Death Decisions 62
October 4, 2010 Life & Death Decisions 63
Categorization
• Social categorization –– Identifying people as belonging to racial,
ethnic, gender, religious and other types of groups
October 4, 2010 Life & Death Decisions 64
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.
October 4, 2010 Life & Death Decisions 65
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.
Hypothetical Case Scenario
Facts:
October 4, 2010 Life & Death Decisions 66
October 4, 2010 Life & Death Decisions 67
Rationalization
• Attempt to “make sense of” inequities in society• People don’t 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).
October 4, 2010 Life & Death Decisions 68
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.
October 4, 2010 Life & Death Decisions 69
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.
October 4, 2010 Life & Death Decisions 70
Confirmation Bias
• fMRI demonstrates areas of brain used in confirmation bias is driven more by emotion than thought.
October 4, 2010 Life & Death Decisions 71
Unconscious Bias
• Implicit memory– Most of what we “remember” is outside of
conscious access.
• Implicit Memories are linked to Implicit Biases
October 4, 2010 Life & Death Decisions 72
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.
October 4, 2010 Life & Death Decisions 73
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.
October 4, 2010 Life & Death Decisions 74
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)
October 4, 2010 Life & Death Decisions 75
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.
October 4, 2010 Life & Death Decisions 76
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.
October 4, 2010 Life & Death Decisions 77
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
October 4, 2010 Life & Death Decisions 78
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.
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, 2010 Life & Death Decisions 79
Decision-Making Tool Kit
October 4, 2010 Life & Death Decisions 81
I’m aware of my biases and I want to do the right thing!
October 4, 2010 Life & Death Decisions 82
De-escalate
• When ever possible alter a situation Or
• Your PERCEPTION of the situation• From
– An EmergencyTO
– A CrisisTO
A Situation
October 4, 2010 Life & Death Decisions 83
• We all deal with situations every day.
• Try to make everything a situation.
October 4, 2010 Life & Death Decisions 84
Opposite of Bias
• Thoughtful
• Careful
• Fair
• Objective
October 4, 2010 Life & Death Decisions 85
Decrease Bias
• Increase Accountability- the more accountable, the less likely to rely on stereotypes
• Avoid Time Pressure
• Maintain Vigilance from the start
October 4, 2010 Life & Death Decisions 86
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
October 4, 2010 Life & Death Decisions 87
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)
October 4, 2010 Life & Death Decisions 88
Decrease Bias
• Emotions are part of decision making. Don’t 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.
October 4, 2010 Life & Death Decisions 89
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.)
October 4, 2010 Life & Death Decisions 90
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.)
Contact Information• Jack Gardner, Psy.D
Greeley Counseling Center1228 8th St, Greeley, CO 80631 (970)[email protected]
• J. Robert Lowenbach, JDBest Practice Courts Judge in Residence2559 55th Avenue, Greeley, CO 80634(970)[email protected]
October 4, 2010 Life & Death Decisions 91