ABA President-elect Paulette Brown

The President-elect of the American Bar Association discusses the issue of implicit bias in the legal system.

Recognized by the National Law Journal as one of "The 50 Most Influential Minority Lawyers in America," Paulette Brown is the first African American woman to be elected President of the American Bar Association. She is currently a member of the Labor & Employment Practice Group at Edwards Wildman Palmer, LLP, and is the firm’s Chief Diversity Officer. She has held a number of positions throughout her career, including in-house counsel to several Fortune 500 companies, and former municipal court judge. She has focused on the issues of labor and employment and commercial litigation in private practice, and as she looks forward to her term as ABA President, she is committed to addressing issues of implicit bias in the legal system.


Tavis: There could be no doubt that the killings of Michael Brown, Eric Garner and other unarmed Black fellow citizens has kicked up a serious conversation in the country about implicit bias in law enforcement and, for that matter, more broadly in our system of jurisprudence.

We turn now to a conversation with the president-elect of the American Bar Association, Paulette Brown, named one of the best lawyers in America by U.S. News. Paulette, good to have you on this program, and congratulations.

Paulette Brown: Thank you. Happy to be here.

Tavis: I want to start with my little handy blue card here. I want to start with a definition of implicit bias because, as I said a moment ago, it’s so clear from conversations all across America even now that there’s great debate about whether or not our system has built in it this sort of implicit bias that runs against too often citizens of color.

So let me start with a definition of implicit bias, then get your take on whether or not this in fact does exist in our systems. “Implicit Bias is defined as the bias in judgment and/or behavior that results from subtle cognitive processes that often operates at a level below conscious awareness and without intentional control.” With that definition, is there implicit bias in our legal system?

Brown: I believe that there is implicit bias not only in our legal system, but I think it permeates through society and the definition is as you have described it.

Many of us–and I don’t think that any of us are exempt from the implicit bias or unconscious bias, as it is sometimes called–that there are things that have happened in our environment, in our culture, that have caused us to engage in certain behaviors that we don’t necessarily know that we have.

But the point is is that I always invite people to take the implicit association test so they can understand what their biases could be so that they can try to adjust their behaviors.

Tavis: So if we acknowledge, if you acknowledge, as the head of the American Bar Association, that this exists, then what are prosecutors and judges and police officers to do about that beyond denying that it exists?

Brown: Well [laugh], first of all, I think they have to probably go beyond denying that it exists. But in the American Bar Association, we have already done a number of things. We conducted training in 2010 to a number of judges on implicit bias.

And one of the things that I hope to do as president of the American Bar Association starting in August is to develop training modules for judges and for prosecutors so that they can understand what their implicit biases are, so that they can in some cases adjust their behaviors.

We know that it doesn’t apply to everyone, but statistics and the studies show that there seems to be some differences in the manner in which certain cases are handled.

Tavis: What do you make of the fact that this bias, this implicit or unconscious bias, continues to exist even though we now live, as I say all the time, in the most multicultural, multiracial, multiethnic America ever? It’s one thing to acknowledge that it exists, but how does it continue to raise its ugly head in an America that is that multicultural and that multiracial?

Brown: We do live in a multiracial and multicultural society. That is absolutely correct. But there are also influences that people still have which is one of the reasons why it’s called unconscious.

Because a lot of people don’t understand or even believe that they could possibly have any biases because they believe that, because of the current state of affairs with such a diverse environment that we live in, that it’s not possible for them to do it. But given an opportunity to actually explore that, to really test what is actually so, then they will probably learn.

I learned that I had some and I think that most people will learn that, as a result of the way they were maybe raised, what they see in the newspaper, what they see on television, certain things influence subconsciously their thought processes. And even notions from what was taught so long ago, they still hold that possibly in the back of their heads, notions about how people should react.

There was a study recently about not just race, but about skin tone and how people look and how likely it would be that people would think that they would be engaged in a crime or be likely to be a suspect or a criminal just based on physical characteristics. And a lot of it has to do with how we’re hard-wired from so long ago and what has been taught to us over an extended period of time.

Tavis: I think there are–and, again, I’ve been in enough Black barbershops and Black churches and I’ve been Black long enough in my life to have been a part of these conversations as you have been, Paulette.

And I think there is legitimate reason–I may get in trouble for saying this. It won’t be the first time or the last time, I suspect. I think there are some legitimate reasons, though, and we saw this play out last year and in the last few years from Trayvon Martin, to certainly Michael Brown, to Eric Garner, to Tamir Rice.

There are some legitimate reasons that Black folk have to be questioning whether or not our systems are working as they should in this multicultural, multiracial America, the legitimate reasons to ask whether or not implicit bias or unconscious bias is at play oftentimes in these decisions, particularly where unarmed fellow citizens are being killed.

And yet because you’ve taken the test and I’ve taken the test and we acknowledge because we’re human as well that we have biases as well, I wonder even with all those legitimate reasons that Black folk have to question the way these systems are working, whether or not our implicit biases, our unconscious biases, in some ways are unfair to law enforcement, are unfair to our system of jurisprudence. Are we being a bit unfair in the way we look at the system in a skewed way because of X, Y or Z?

Brown: You know, I’m not sure whether we’re being unfair, and that’s kind of what I want to do when I become president. I want to study some of these things and try to come up with solutions that will help everyone, not just people of color or people who are directly impacted, but, you know, on a more sort of global meeting within the United States basis.

Because, you know, there are perceptions that go both ways and I think that, if we can come up with some solutions, and also there are good prosecutors, there are good police officers.

You know, working together with them and having an understanding, you know, I think about Desmond Tutu and how you raise certain issues and sort of clear the air and come to some reconciliations. I think that perhaps some of that needs to be done, but it’s not possible to sort of gauge that at this point without having as much information as possible.

Tavis: You can clear the air all day, respectfully, and yet there are some people who still think, and the evidence abounds from 2014, that there is this too-cozy relationship, since you mentioned them, between prosecutors and police.

Brown: Well, some people would not agree necessarily with the cozy relationship with the prosecutors and police. I think that they both have an important job. Like I said, I wasn’t there. I wasn’t like in the grand jury room or any of those things.

I can only say that, you know, one of the things that I’d like to focus on and bring to the attention of individuals is how important the role of the prosecutor is, first of all, and how the prosecutor, in some ways, is the most important person in the process and has more powers than a lot of the other individuals…

Tavis: I think most of us get that and, if we didn’t get it, given the cases that we saw last year, we certainly get that now, the power that prosecutors have. I guess the question is whether or not the American Bar Association or anybody else has the agency and the wherewithal to help these prosecutors writ large increase their level of cultural competence.

Brown: That is exactly what we are hoping to do, hoping to not just create training on implicit bias, but also perhaps create a toolkit that they can use over and over and over again, and to make the toolkit live so that it can have modifications from time to time, so that as times change or circumstances change, it can be adjusted so that, one, there won’t be this perception that there is bias in the justice system.

Because when people don’t have confidence in the justice system, there is a great impact on the rule of law.

Tavis: Well, that’s my greatest concern. I think that the evidence is starting to suggest to me, the data that I’m reading, that that’s what’s happening, that there’s an erosion of our confidence in our system of jurisprudence, in our law enforcement. And that concerns me for the sake of our democracy, and I mean that literally.

Let me just say, there are any number of tests and I’ve taken a few of these over the course of my life and I was amazed myself. Paulette and I were talking about this earlier. But any number of tests, you can go outline to take them, these implicit bias, unconscious bias tests.

I encourage you to take one. Here at the start of the year, you might surprise yourself with things about yourself that you didn’t think you harbored or the things that you didn’t think you felt, but might come up in the test, though. Go online, find one of them, see what you think.

Paulette Brown is the incoming president of the American Bar Association, the president-elect taking office in August. Madam President, all the best to you in your term, and good to have you on this program.

Brown: Thank you very much. Very thankful to be here. Appreciate it.

Tavis: Glad to have you on. That’s our show for tonight. Thanks for watching and, as always, keep the faith.

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Last modified: February 10, 2015 at 3:14 pm