Thoughtful judges recognize the inherent risk of unconscious bias, and the difficulty of preventing it.
A wonderful article based on an interview with Federal District Court Judge Ricardo Urbina lays out his approach to sentencing, and perhaps even more important, his personal approach to minimizing unconscious bias.
That morning, as was his routine for more than three decades, the 66-year-old judge, who retains the lean build of a former high school and college track star, sat cross-legged on a blue mat in a sunny second-floor room of his D.C. home and meditated.
His goal was simple, if not always easy to achieve: “I try to see where my biases and prejudices that day are hiding,” he said of a practice he first took up as a young law professor. “If you don’t find them, they have a tendency to come out at the most unusual of times. . . . Your mind is like a murky glass of water, and meditating is like letting the sediment settle until the water clears.”
The article also includes a wonderful example what cultural knowledge and experience can bring to the judicial process. In this case, as woman had pled guilty to faking documents to help her boss steal $10 million from the federal government.
The judge then grew silent and pondered a stack of papers in front of him before locking eyes with [the defendant]. “My parents were immigrants,” he told her. “They came from Latin America. I am very much acquainted with the qualities and characteristics of the Latin culture from a long time ago: ‘The woman obeys the man. Period.’ But this was very bad judgment on your part. The fact that it was a man telling you what to do is not an excuse, but it is a factor.” (bold added)
An important distinction that is sometimes lost. Refusing to accept something as an excuse does not mean that we have to ignore it as a factor in societal response.
I have heard of other judges who consciously spend time with people from the ethnic groups over whose members they may sit in judgement, so that they feel more comfortable in their understandings.
This is a huge and difficult area, and we should honor those who engage it directly and honestly.
Thanks for calling attention to the issue of cultural competency in decision making. This is an area long neglected–and one that can have real impacts on the nature/quality/applicability of decisions issued by courts that are binding. For example, ascertaining credibility is a culturally based action. Cultures use different queues to determine if someone is being thruthful or not. Also decision making. In some cultures decisions are made by a group, not an individual. Our laws assume that all decisions are made by one person. That is not so for all cultures.
Are there any courts doing cultural competency training for their staff persons? Are there any judicial education courses in any state, where cultural competency is part of the required training for new judges?
I encourage all attorneys to read the work of Sue Bryant. She has written a wonderful piece recently called the 5 Habits of Culturally Competent Attorneys. It is written for lawyers, but since judges are lawyers, it would be a good piece to read and use in judicial education curriculum.
Ada Shen-Jaffe has also been writing and working on cultural competency in our world for years, including working with the State Bar in Washington. A great book to read, that was shared at the 211 State Bar meeting here in WA is Beyond Inclusion, Beyond Empowerment, by Dr. Leticia Nieto. http://beyondinclusionbeyondempowerment.com/
It would be good to start conceiving of models for doing cultural competency training for courts and justices–or collecting what exists already and sharing with others interested. If others have other resources, names of experts, articles etc. please share them. I am always looking for new ways cultural competency can improve our justice system and our daily practices.