Implicit racial biases are the cracks in the criminal justice system

Just this week, in a case reversing a death sentence because of a judicial conflict of interest, Justice Kennedy wrote that “[b]ias is easy to attribute to others and difficult to  discern in oneself.”

Our country, in the midst of its ongoing national discussion on racial disparity, inequality and bias in the justice system has taken noticeable steps in attributing bias to others. There is no dearth of studies and reports pointing out the iniquities of justice in America: black and minority defendants are 30% more likely than whites to go to prison for the same crimes, for instance.1 in 3 people arrested for drug crimes are black, even though drug usage rates don’t vary widely. These inequalities came to light most harshly through the incidents in Ferguson and New York City.

This disproportionate treatment of minorities in policing continues in the face of contrary evidence. For instance, when stopping cars in Ferguson, blacks were 3.5 times more likely to be pulled over. When stopped, blacks are searched at a higher rate than whites. However, when searched, blacks are less likely to have contraband or weapons on them than whites. Yet, blacks are arrested at a higher rate than their white counterparts. This disparity is not limited to Ferguson, but can be found countrywide, including the “stop and frisk” policies of New York City and the idyllic suburbs of Connecticut.

Studies have also recognized the cumulative impact of racial bias in policing on sentences and further downstream consequences: being arrested more frequently leads to more frequent convictions and that leads to longer criminal records which leads to lengthier sentences, which coupled with a distinct lack of rehabilitative services, leads to higher recidivism. For the same or similar crimes, whites aren’t caught in this toxic dead end loop.

Even for first time offenders, blacks are more likely to get higher sentences than whites. It is no secret that in the criminal justice system, there is a race/gender hierarchy: white women are treated most favorably, followed by minority women, then white men and then there’s a significant gap until we get to the minority men.

There is no “other”

To say, however, that the bias in the racial justice system exists in the “other” is to perpetuate a lie. The system isn’t a sentient machine, chugging along in its own, even thought it may feel so at many times. The system is made up of thousands upon thousands of individuals, most well-meaning and hard-working. Police officers aren’t inherently evil individuals; the judicial branch isn’t a kangaroo court; prosecutors aren’t all lying, cheating and dishonest; public defenders aren’t universally overworked and incompetent.

In fact, most when polled individually would attest to the nobility of their function and the sanctity of their duty. They all believe that they are doing justice – for whom, remains in dispute, but justice nonetheless.

So how does a collective group of mostly well meaning individuals produce such offensive and disproportionate results? The answer, many believe, is that even the best of us are victim to implicit biases.

The idea of implicit bias is that we are subconsciously altering our interactions with other people based on preconceived notions that we are, obviously, unaware of. This is not a case of alleging overt racism in the criminal justice system, which the country has become acutely aware of. This is the other kind: the well-meaning kind.

An Inability to Relate

While the vast majority of defendants in criminal courts are black and Hispanic, the legal profession is overwhelmingly white. Judges are predominantly white. Prosecutors are overwhelmingly white and public defender offices have large white majorities.

The best of us – myself, a minority, included – are affected (or can be) in some way, major or minor, by the stereotypes that our society and pop culture perpetuate. We don’t do this intentionally or knowingly, but we all are the products of our experiences and upbringing and for the most part they vary widely from those of our clients.

Judges who have been raised in white suburbs and attended prestigious law schools and worked in fancy corporate law firms cannot, as much as they try, to understand the circumstances that led the 17 year old black youth with a firearm to stand in front of them. Their sentencing will naturally be colored by their own life experiences and their own beliefs about others’ motivations.

When faced with an individual who looks like them, who has lived the life they have, judges and prosecutors are more likely to find common ground and empathize with the defendant’s predicament. There is no greater example of this than the recent Stanford sexual assault case. While the 6-month sentence for raping an unconscious young woman strikes many as unconscionable, when you compare the judge to the defendant, you get an insight into the rationale. Both the judge and the defendant attended Stanford. Both of them played “suburban” sports: lacrosse and swimming. When the defendant Turner stood in front of the judge, it was easy for the judge to see himself in the young man. It was easy for the judge to sympathize and understand his predicament, because, but for the grace of God…

Yet when that judge is faced with a black youth from an underprivileged background, more often than not he doesn’t have that common ground. It’s all too see for a judge see only the demographic standing before him, not the individual. Falling prey to these biases is how we come to disparate sentences.

The Defense is not Immune

While a significant amount of research on bias focuses on police, judges and prosecutors, it would be foolish to assume that defense attorneys are immune from its effects. Defense attorneys are after all, contrary to popular belief, people. As people, defense attorneys are subject to the same pitfalls as others. But as stewards of Constitutional rights and guardians of individual and individuals’ liberty, permitting implicit biases to affect representation of the accused is especially dangerous. For instance, a study of death penalty lawyers found that they, too, had the same biases as the general population: associating white with good and black with bad.

Recognizing these biases within the defense community and addressing them is critical. Some are asking whether defense attorneys spend less time on black clients. Jeff Adachi, the inimitable public defender of San Francisco, penned a powerful column in the Washington Post, describing his own journey from disbeliever to proponent of implicit bias recognition and training in the defense community.

When a defense attorney is confronted with a client to whom he cannot relate, how is his assessment of that client’s defenses and explanations altered? Do defense attorneys recommend higher sentences because they harbor the same biases of minorities’ guilt? Is there a failure to investigate cases involving minorities because defense attorneys are resigned to their eventual conviction? Do defense attorneys recommend pleas and dispositions to minorities that they wouldn’t to a Stamford swimmer? Do defense attorneys work harder for white clients in order to preserve their better chances at a more successful life and give in to their biased belief in the inevitability of a minority defendant acquiring a felony conviction?

Adachi’s column and the growing body of research in this area aren’t meant to castigate any particular individual or to raise racial bias allegations. They are, however, extremely useful as a gently reminder to all of us that perhaps we need to try harder to recognize that we may unknowingly be treating clients differently based on their race or gender.

A conversation about implicit bias is a difficult conversation; it is a subtle difference away from labeling oneself as racist. This conversation, however, is critical: it allows us to recognize and acknowledge the existence of these biases that would otherwise continue to operate and subconsciously affect our behavior. Admitting that we are subject to these biases allows us to correct for their negative impacts.

Recognizing these biases in ourselves allows us to honestly point them out in others – judges, jurors and prosecutors – and allows us to have the real honest dialogue that will hopefully bring them on board with acknowledging that the entire justice system is skewed and will remain so unless we examine ourselves and the way we treat those who are accused of crimes.

This post originally appeared on NAPD.

Remedies for prosecutorial intrusion in attorney-client privilege

Communications between a client and his attorney are regarded as privileged, which means that they are “permanently protected from disclosure,” unless waived by the client. The strong public policy rationale behind keeping communications confidential is to ensure full disclosure between an individual and his attorney. The importance of this privilege is why we sometimes tolerate uneasy outcomes.

But what happens when that privilege is pierced in a criminal case and that too, by the prosecution? What happens when the prosecution gains access to confidential documents and conversations between a criminal defendant and his lawyer in a pending case?

While most courts agree that invasion of this attorney-client privilege is “reprehensible” and “abhorrent”, three cases highlight the difficulty courts have in deciding what the appropriate remedy should be.

In State v. Taylor, a recent Indiana Supreme Court case:

The body of Brian Taylor’s girlfriend, Simone Bush, was found on March 14, 2014, just a few hours after Taylor was dropped off at a police station. Taylor’s attorney arrived shortly thereafter and began meeting with his client. Police told the attorney to flip a switch if he didn’t want the police listening to his conversation, but when he did he piped his conversation with his client into another room where many officers were listening. They heard the location of a handgun, among other details. Two days later, Taylor was charged with murder.

A prosecutor was also present and overheard the conversation between the two.

In State v. Winkler, a case out of Missouri, Jennifer Winkler was charged with manslaughter in the shaking death of an infant she was taking care of. Both she and her husband were represented by the same lawyer:

According to available court documents, defense attorneys alleged that prosecutors met with Steven Winkler and discussed trial strategy for his former wife’s defense that should have been protected by attorney-client privilege.

Steven Winkler knew the strategy because lawyer Neil Bruntrager not only represented Jennifer Winkler in the murder case but also represented both, before they were divorced, in an effort to retain custody of their children. Bruntrager remains Jennifer Winkler’s attorney but no longer represents her ex-husband.

Finally, in State v. Lenarz, a Connecticut case from 2011:

During its examination of the defendant’s computer, the state laboratory discovered voluminous written materials containing detailed discussions of the defendant’s trial strategy…The state laboratory read and copied much of this material and transmitted it to the police department along with its report. In turn, the police department forwarded the materials and the report to the prosecutor…Although it is unclear from the record how long the prosecutor had been in possession of the privileged communications before the September, 2005 meeting, defense counsel represented at a hearing on a motion to suppress the materials seized under the search warrant that the prosecutor had had the materials for six weeks, and the prosecutor did not dispute this claim.


Rebuttable Presumption. The similaries in these cases go beyond the facts: all courts agree that when a governmental agency has committed such an intrusion, there is a strong presumption of prejudice and it is up to the government to prove that the prejudice can be overcome:

We agree with the courts that have held that the burden is not on the defendant to establish that he was prejudiced when the prosecutor has intruded on attorney-client communications that contain information concerning the defendant’s trial strategy. Rather, because the disclosure of such information is inherently prejudicial, prejudice should be presumed, regardless of whether the invasion into the attorney-client privilege was intentional. The subjective intent of the government and the identity of the party responsible for the disclosure simply have no bearing on that question.

State v. Lenarz. What differs among the courts is the standard by which the prosecution must overcome this presumption of prejudice. In Connecticut, the prosecution need only show by “clear and convincing evidence,” a burden higher than the civil “preponderance of evidence” but less demanding than “beyond a reasonable doubt”. The latter, which also applies to harmless error analysis is required by the Indiana Supreme Court in Taylor. So prosecutors in Indiana need to overcome a higher burden than prosecutors in Connecticut in proving that the defendant was not prejudiced by their intrusion in attorney-client privilege.

Remedy. Thus we get to the question of remedy. How is this violation of Constitutional rights to be vindicated? Most criminal defendants would want a dismissal of charges, but courts are loathe to sanction such a drastic remedy barring exceptional circumstances. The remedy also depends on the posture of a case. In Winkler above, the appeals court rejected her request for a dismissal, but granted her request to disqualify the prosecutor’s office. In Taylor, the trial judge ordered that the testimony of the police officers be suppressed and the physical evidence obtained as a result of the eavesdropping be suppressed as well. The Indiana Supreme Court reversed, stating that the prosecution had to have the opportunity to prove that the tainted evidence could have and would have been obtained in non-tainted ways. In Lenarz, the charges were dismissed, but only because it had been over a year and a half since the conviction and there was no way to effectively remedy the violation short of dismissal.

The problem with a lot of the remedies short of dismissal is that it is almost impossible to know the impact of the confidential information on police investigations and prosecution strategy. Even if a prosecutor swears that the information did not impact her decisions in any way, there is no reliable way to know that – information seeps into our brain and we can end up relying on it even subconsciously. If total dismissal is not the preferred remedy, then one could envision a regime where attorney-client communications are routinely monitored and the information gained therein is used to obtain other evidence through legal means. The privileged information would also drive trial strategy and provide the prosecution with access to the defenses that it ordinarily should not have.

If the attorney-client privilege is so sacrosanct and the cases above represent reprehensible violations of the right to counsel, then it should operate as does the exclusionary rule: a categorial bar that serves as a reminder to police and prosecutors that violations of the right to counsel cannot and will not be tolerated.