The concept within our criminal justice system that justice is blind—even if what actually happens is far from that ideal—is a noble and righteous thing worth aspiring to. It’s why I was excited to learn from news accounts that San Francisco District Attorney George Gascon is launching an effort to try and remove implicit bias from the process of deciding whether or not to charge someone with a crime and secondly, if charges are warranted, removing bias in deciding what specific charges to bring, i.e. “blind-charging.”
According to Ohio State University’s Kirwan Institute for the Study of Race and Ethnicity, implicit bias refers to “the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner.” The key here is that the bias is an unconscious bias and not something a person is actively thinking about, arguably the most destructive type.
Implicit bias is how a human resources department in a company that prides itself on diversity and nondiscrimination somehow fails to schedule job interviews with applicants named Lakisha or Deiondre, although Lakisha and Deiondre might have stronger resumes than those submitted by the Allisons and Tanners of the world. Implicit bias might be the reason why Luke or Molly get referrals to a specialist while Malik and Jazmine get prescriptions and on their way out the door.
In some instances, our garden variety implicit bias is merely insulting but when it comes to the criminal justice system, implicit bias can be the difference between freedom and a life behind bars and depending on the circumstances, life and death. That’s why San Francisco’s blind review policy is critically important for all jurisdictions as we continue to struggle with what “justice for all” looks like in the 21st century.
According to an article in the Los Angeles Times, the bias mitigation review program uses software created by Stanford University that removes references and certain identifiers in police reports such as an individual’s name, race, ethnicity, geographic locations, and other such details so that the focus of prosecutors is strictly on the alleged behavior. Some things such as photos and videos software can’t anonymize and my understanding is that it won’t be used initially in homicides, sexual assaults, domestic violence cases, and use-of-force investigations.
Yet even with its limited applications, bias mitigation reviews can still be impactful in pushing back against implicit racial bias that shapes too many outcomes. For example, a 2013 review of 50 years’ worth of studies on racial disparities in bail practices, entitled Give Us Free: Addressing Racial Disparities in Bail Determinations, found that African Americans are subject to pretrial detention far more frequently and with higher bail amounts than white people facing similar charges with similar criminal histories.
The findings were the same for all regions of the country and were consistent across federal and state levels. Since the offenses involved were the same and criminal histories of the alleged perpetrator were similar, the only thing that could reasonably account for these disparities, I believe, would be implicit bias on the part of those involved with the administration of justice. My guess is that such disparities are also present when it comes to misdemeanor charges.
If I’m right about implicit bias, then one way to try and ensure that justice is truly blind is to implement bias mitigation reviews at all levels of the system. It’s elegant in its simplicity and perhaps the best part is that it doesn’t require throwing ungodly sums of taxpayer money at a possible solution—it just requires a willingness to view information and data from a place of forced neutrality.
While prosecutors’ offices across our state could invest in software to anonymize information in police reports, as was done in San Francisco, a box of Sharpies could just as easily redact specific information and data from a standardized protocol. It’s admittedly low tech but it works. Let’s make blind-charging standard practice; all it takes is willingness…and a box of Sharpies.