Helping Courts Address Implicit Bias

Addressing Implicit Bias in the Courts*

Fairness is a fundamental tenet of American courts. Yet, despite substantial work
by state courts to address issues of racial and ethnic fairness,1 public skepticism
that racial and ethnic minorities receive consistently fair and equal treatment in
American courts remains widespread.2 Why?

The Influence of Implicit Associations

Perhaps one explanation may be found in an emerging body of research on
implicit cognition. During the last two decades, new assessment methods and
technologies in the fields of social science and neuroscience have advanced
research on brain functions, providing a glimpse into what Vedantam (2010) refers
to as the hidden brain. Although in its early stages, this research is helping
scientists understand how the brain takes in, sorts, synthesizes, and responds to
the enormous amount of information an individual faces on a daily basis.3 It also is
providing intriguing insights into how and why individuals develop stereotypes and
biases, often without even knowing they exist.
The research indicates that an individuals brain learns over time how to distinguish
different objects (e.g., a chair or desk) based on features of the objects that
coalesce into patterns. These patterns or schemas help the brain efficiently
recognize objects encountered in the environment. What is interesting is that
these patterns also operate at the social level. Over time, the brain learns

*Preparation of this project brief was funded by the Open Society Institute, the State Justice Institute, and
the National Center for State Courts. The views expressed are those of the authors and do not necessarily
reflect the views of the funding organizations. The document summarizes the National Center for State
Courts project on implicit bias and judicial education. See Casey, Warren, Cheesman, and Elek (2012),
available at www.ncsc.org/ibreport for the full report of the project.

Helping Courts Address Implicit Bias

to sort people into certain groups (e.g., male or female, young or old) based
on combinations of characteristics as well. The problem is when the brain
automatically associates certain characteristics with specific groups that are not
accurate for all the individuals in the group (e.g., elderly individuals are frail).
Scientists refer to these automatic associations as implicitthey operate behindthe-scenes without the individuals awareness.
Scientists have developed a variety of methods to measure these implicit attitudes
about different groups, but the most common measure used is reaction time (e.g.,
the Implicit Association Test, or IAT).4 The idea behind these types of measures
is that individuals will react faster to two stimuli that are strongly associated
(e.g., elderly and frail) than to two stimuli that are less strongly associated (e.g.,
elderly and robust). In the case of race, scientists have found that most European
Americans who have taken the test are faster at pairing a White face with a good
word (e.g., honest) and a Black face with a bad word (e.g., violent) than the other
way around. For African Americans, approximately a third show a preference for
African Americans, a third show a preference for European Americans, and a third
show no preference (Greenwald & Krieger, 2006, pp. 956-958).
There is evidence that judges are susceptible to these implicit associations, too.
Rachlinski, Johnson, Wistrich, and Guthrie (2009), for example, found a strong
White preference on the IAT among White judges. Black judges also followed the
general African American population findings, showing no clear preference overall
(44% showed a White preference but the preference was weaker overall).
The question is whether these implicit associations can influence, i.e., bias, an
individuals decisions and actions, and there is growing evidence that the answer is
yes. Research has demonstrated that implicit bias can affect decisions regarding,
for example, job applicants (e.g., Bertrand & Mullainathan, 2004; Rooth, 2010;

Addressing Implicit Bias in the Courts

Helping Courts Address Implicit Bias

Ziegert & Hanges, 2005), medical treatment (e.g., Green, Carney, Pallin, Ngo,
Raymond, Lezzoni, & Banaji, 2007), a suspects dangerousness (Correll, Park, Judd,
& Wittenbrink, 2002; Correll, Park, Judd, Wittenbrink, Sadler, & Keesee, 2007; Plant
& Peruche, 2005), and nominees for elected office (Greenwald, Smith, Sriram, BarAnan, & Nosek, 2009; Payne, Krosnick, Pasek, Leikes, Akhtar, & Thompson, 2010).
Kang (2009) describes the potential problem this poses for the justice system:
Though our shorthand schemas of people may be helpful in some
situations, they also can lead to discriminatory behaviors if we are
not careful. Given the critical importance of exercising fairness and
equality in the court system, lawyers, judges, jurors, and staff should
be particularly concerned about identifying such possibilities. Do we, for
instance, associate aggressiveness with Black men, such that we see
them as more likely to have started the fight than to have responded in
self-defense? (p. 2)
The problem is compounded by judges and other court professionals who,
because they have worked hard to eliminate explicit bias in their own decisions
and behaviors, assume that they do not allow racial prejudice to color their
judgments. For example, most, if not all, judges believe that they are fair
and objective and base their decisions only on the facts of a case (see, for
example, Rachlinski, et al., 2009, p. 126, reporting that 97% of judges in an
educational program rated themselves in the top half of the judges attending
the programstatistically impossiblein their ability to avoid racial prejudice in
decisionmaking). Judges and court professionals who focus only on eliminating
explicit bias may conclude that they are better at understanding and controlling for
bias in their decisions and actions than they really are.

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Helping Courts Address Implicit Bias

Rachlinski, et al. (2009) also found preliminary evidence that implicit bias affected
judges sentences. Additional research is needed to confirm these findings. More
importantly for the justice system, though, is the authors conclusion that when
judges are aware of a need to monitor their own responses for the influence of
implicit racial biases, and are motivated to suppress that bias, they appear able to
do so (p. 1221). The next section discusses potential strategies judges and court
professionals can use to address implicit bias.

Reducing the Influence of Implicit Bias

Compared to the science on the existence of implicit bias and its potential
influence on behavior, the science on ways to mitigate implicit bias is relatively
young and often does not address specific applied contexts such as judicial
decision making. Yet, it is important for strategies to be concrete and applicable to
an individuals work to be effective; instructions to simply avoid biased outcomes
or respond in an egalitarian manner are too vague to be helpful (Dasgupta, 2009).
To address this gap in concrete strategies applicable to court audiences, the
authors reviewed the science on general strategies to address implicit bias and
considered their potential relevance for judges and court professionals. They also
convened a small group discussion with judges and judicial educators (referred to
as the Judicial Focus Group) to discuss potential strategies. These efforts yielded
seven general research-based strategies that may help attenuate implicit bias or
mitigate the influence of implicit bias on decisions and actions.5

Strategy 1: Raise awareness of implicit bias

Individuals can only work to correct for sources of bias that they are aware exist
(Wilson & Brekke, 1994). Simply knowing about implicit bias and its potentially
harmful effects on judgment and behavior may prompt individuals to pursue

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corrective action (cf. Green, Carney, Pallin, Ngo, Raymond, Iezzoni, & Banaji, 2007).
Although awareness of implicit bias in and of itself is not sufficient to ensure that
effective debiasing efforts take place (Kim, 2003), it is a crucial starting point that
may prompt individuals to seek out and implement additional strategies.

Strategy 1: Potential Actions to Take

Individual: Seek information on implicit bias by attending
educational sessions, taking the IAT, and reading relevant research.
Courts: Provide education on implicit bias that includes judicial facilitators/
presenters, examples of implicit bias across other professions, and
exercises to make the material more personally relevant.

Strategy 2: Seek to identify and consciously

acknowledge real group and individual differences
The popular color blind approach to egalitarianism (i.e., avoiding or ignoring
race; lack of awareness of and sensitivity to differences between social groups)
fails as an implicit bias intervention strategy. Color blindness actually produces
greater implicit bias than strategies that acknowledge race (Apfelbaum, Sommers,
& Norton, 2008). Cultivating greater awareness of and sensitivity to group and
individual differences appears to be a more effective tactic: Training seminars
that acknowledge and promote an appreciation of group differences and multicultural viewpoints can help reduce implicit bias (Rudman, Ashmore, & Gary, 2001;
Richeson & Nussbaum, 2004).

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Strategy 2: Potential Actions to Take

Individual: Participate in diversity training that focuses on
multiculturalism, associate with those committed to egalitarian
goals, and invest effort in identifying the unique characteristics
of different members of the same minority groups.
Courts: Provide routine diversity training that emphasizes
multiculturalism and encourage court leaders to promote
egalitarian behavior as part of a courts culture.
Diversity training seminars can serve as a starting point from which court
culture itself can change. When respected court leadership actively supports the
multiculturalism approach, those egalitarian goals can influence others (Aarts,
Gollwitzer, & Hassin, 2004). Moreover, when an individual (e.g., new employee)
discovers that peers in the court community are more egalitarian, the individuals
beliefs become less implicitly biased (Sechrist & Stangor, 2001). Thus, a systemwide effort to cultivate a workplace environment that supports egalitarian
norms is important in reducing individual-level implicit bias. Note, however,
that mandatory training or other imposed pressure to comply with egalitarian
standards may elicit hostility and resistance from some types of individuals,
failing to reduce implicit bias (Plant & Devine, 2001).
In addition to considering and acknowledging group differences, individuals
should purposely compare and individuate stigmatized group members. By
defining individuals in multiple ways other than in terms of race, implicit bias
may be reduced (e.g., Djikic, Langer, & Stapleton, 2008; Lebrecht, Pierce, Tarr, &
Tanaka, 2009; Corcoran, Hundhammer, & Mussweiler, 2009).

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Strategy 3: Routinely check thought processes

and decisions for possible bias
When individuals engage in low-effort information processing, they rely on
stereotypes and produce more stereotype-consistent judgments than when
engaged in more deliberative, effortful processing (Bodenhausen, 1990). As a
result, low effort decision makers tend to develop inferences or expectations
about an individual early on in the information-gathering process. These
expectations then guide subsequent information processing: Attention and
subsequent recall are biased in favor of stereotype-confirming evidence and
produce biased judgment (Bodenhausen & Wyer, 1985; Darley & Gross, 1983).
Expectations can also affect social interaction between the decision maker
(e.g., judge) and the stereotyped target (e.g., defendant), causing the decision
maker to behave in ways that inadvertently elicit stereotype-confirming behavior
from the other person (Word, Zanna, & Cooper, 1973). Individuals interested
in minimizing the impact of implicit bias on their own judgment and behaviors
should actively engage in more thoughtful, deliberative information processing.

Strategy 3: Potential Actions to Take

Individual: Use decision-support tools such as notetaking, checklists, and bench cards and techniques such
as writing down the reasons for a judgment to promote
greater deliberative as opposed to intuitive thinking.
Courts: Develop guidelines and/or formal protocols for decision
makers to check and correct for implicit bias (e.g., taking the
other persons perspective, imagining the person is from a nonstigmatized social group, thinking of counter-stereotypic thoughts
in the presence of an individual from a minority social group).

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When sufficient effort is exerted to limit the effects of implicit biases on

judgment, attempts to consciously control implicit bias can be successful (Payne,
2005; Stewart & Payne, 2008).
To do this, however, individuals must possess a certain degree of self-awareness.
They must be mindful of their decision-making processes rather than just the
results of decision making (Seamone, 2006) to eliminate distractions, to minimize
emotional decision making, and to objectively and deliberatively consider the facts
at hand instead of relying on schemas, stereotypes, and/or intuition.

Strategy 4: Identify distractions and sources of stress in the

decision-making environment and remove or reduce them
Tiring (e.g., long hours, fatigue), stressful (e.g., heavy, backlogged, or very
diverse caseloads; loud construction noise; threats to physical safety; popular or
political pressure about a particular decision; emergency or crisis situations), or
otherwise distracting circumstances can adversely affect judicial performance
(e.g., Eells & Showalter, 1994; Hartley & Adams, 1974; Keinan, 1987). Specifically,
situations that involve time pressure (e.g., van Knippenberg, Dijksterhuis, &
Vermeulen, 1999), that force a decision maker to form complex judgments
relatively quickly (e.g., Bodenhausen & Lichtenstein, 1987), or in which the
decision maker is distracted and cannot fully attend to incoming information
(e.g., Gilbert & Hixon, 1991; Sherman, Lee, Bessennof, & Frost, 1998) all limit
the ability to fully process case information. Decision makers who are rushed,
stressed, distracted, or pressured are more likely to apply stereotypes recalling
facts in ways biased by stereotypes and making more stereotypic judgments
than decision makers whose cognitive abilities are not similarly constrained.
A decision maker may be more likely to think in terms of race and use implicit
racial stereotypes (Macrae, Bodenhausen, & Milne, 1995; Mitchell, Nosek, &
Banaji, 2003) because race often is a salient, i.e., easily-accessible, attribute. In

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Strategy 4: Potential Actions to Take

Individual: Allow more time on cases in which implicit
bias might be a concern by, for example, spending more
time reviewing the facts of the case before committing to
a decision; consider ways to clear your mind (e.g., through
meditation) and focus completely on the task at hand.
Courts: Review areas in which judges and other decision makers are
likely to be over-burdened and consider options (e.g., reorganizing
court calendars) for modifying procedures to provide more time
for decision making (see Guthrie, Rachlinski, Wistrich, 2007).
addition, certain emotional states (anger, disgust) can exacerbate implicit bias
in judgments of stigmatized group members, even if the source of the negative
emotion has nothing to do with the current situation or with the issue of social
groups or stereotypes more broadly (e.g., DeSteno, Dasgupta, Bartlett, & Cajdric,
2004; Dasgupta, DeSteno, Williams, & Hunsinger, 2009). Happiness may also
produce more stereotypic judgments, though this can be consciously controlled
if the person is motivated to do so (Bodenhausen, Kramer, & Susser, 1994).
Given all these potential distractions and sources of stress, decision makers
need enough time and cognitive resources to thoroughly process case
information to avoid relying on intuitive reasoning processes that can result in
biased judgments.

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Strategy 5: Identify sources of ambiguity in the decisionmaking context and establish more concrete standards
before engaging in the decision-making process
When the basis for judgment is somewhat vague (e.g., situations that call
for discretion; cases that involve the application of new, unfamiliar laws),
biased judgments are more likely. Without more explicit, concrete criteria for
decision making, individuals tend to disambiguate the situation using whatever
information is most easily accessibleincluding stereotypes (e.g., Dovidio &
Gaertner, 2000; Johnson, Whitestone, Jackson, & Gatto, 1995).
In cases involving ambiguous factors, decision makers should preemptively
commit to specific decision-making criteria (e.g., the importance of various
types of evidence to the decision) before hearing a case or reviewing evidence
to minimize the opportunity for implicit bias (Uhlmann & Cohen, 2005).
Establishing this structure before entering the decision-making context will help
prevent constructing criteria after the fact in ways biased by implicit stereotypes
but rationalized by specific types of evidence (e.g., placing greater weight on
stereotype-consistent evidence in a case against a Black defendant than one
would in a case against a White defendant).

Strategy 5: Potential Actions to Take

Individual: Commit to decision-making criteria
before reviewing case-specific information.
Courts: Develop protocols that identify potential sources
of ambiguity; consider the pros (e.g., more understanding
of issues) and cons (e.g., familiarity may lead to less
deliberative processing) of using judges with special
expertise to handle cases with greater ambiguity.

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Strategy 6: Institute feedback mechanisms

Providing egalitarian consensus information (i.e., information that others in the
court hold egalitarian beliefs rather than adhere to stereotypic beliefs) and other
feedback mechanisms can be powerful tools in promoting more egalitarian
attitudes and behavior in the court community (Sechrist & Stangor, 2001).
To encourage individual effort in addressing personal implicit biases, court
administration may opt to provide judges and other court professionals with
relevant performance feedback. As part of this process, court administration
should consider the type of judicial decision-making data currently available or
easily obtained that would offer judges meaningful but nonthreatening feedback
on demonstrated biases. Transparent feedback from regular or intermittent
peer reviews that raise personal awareness of biases could prompt those with
egalitarian motives to do more to prevent implicit bias in future decisions and
actions (e.g., Son Hing, Li, & Zanna, 2002). This feedback should include concrete
suggestions on how to improve performance (cf. Mendoza, Gollwitzer, & Amodio,
2010; Kim, 2003) and could also involve recognition of those individuals who
display exceptional fairness as positive reinforcement.
Feedback tends to work best when it (a) comes from a legitimate, respected
authority, (b) addresses the persons decision-making process rather than simply
the decision outcome, and (c) when provided before the person commits to
a decision rather than afterwards, when he or she already has committed to
a particular course of action (see Lerner & Tetlock, 1999, for a review). Note,
however, that feedback mechanisms which apply coercive pressure to comply
with egalitarian standards can elicit hostility from some types of individuals and
fail to mitigate implicit bias (e.g., Plant & Devine, 2001). By inciting hostility,
these imposed standards may even be counterproductive to egalitarian goals,
generating backlash in the form of increased explicit and implicit prejudice
(Legault, Gutsell, & Inzlicht, 2011).
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Strategy 6: Potential Actions to Take

Individual: Seek feedback through, for example, participating
in a sentencing round table discussing hypothetical cases or
consulting with a skilled mentor or senior judge about handling
challenging cases; ask for feedback from colleagues, supervisors
and others regarding past performance; document and review
the underlying logic of decisions to ensure their soundness.
Courts: Periodically review a judges case materials and
provide feedback and suggestions for improvement as needed;
develop a bench-bar committee to oversee an informal internal
grievance process and work with judges as needed; convene
sentencing round tables to discuss hypothetical cases involving
implicit bias issues and encourage more deliberate thinking.

Strategy 7: Increase exposure to stigmatized group members

and counter-stereotypes and reduce exposure to stereotypes
Increased contact with counter-stereotypesspecifically, increased exposure
to stigmatized group members that contradict the social stereotypecan help
individuals negate stereotypes, affirm counter-stereotypes, and unlearn the
associations that underlie implicit bias. Exposure can include imagining counterstereotypes (Blair, Ma, & Lenton, 2001), incidentally observing counter-stereotypes
in the environment (Dasgupta & Greenwald, 2001; Olson & Fazio, 2006), engaging
with counter-stereotypic role models (Dasgupta & Asgari, 2004; Dasgupta &
Rivera, 2008) or extensive practice making counter-stereotypic associations
(Kawakami, Dovidio, Moll, Hermsen, & Russin, 2000).

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Strategy 7: Potential Actions to Take

Individual: View images (e.g., by hanging photos, creating
new screen savers and desk top images) of admired individuals
(e.g., Martin Luther King, Jr.) of the stereotyped social group;
spend more time with individuals who are counter-stereotypic
role models; practice making positive, i.e., counter-stereotypic,
associations, with members of minority social groups.
Courts: Assess visual and auditory communications for implicit
bias and modify to convey egalitarian norms and present
counter-stereotypic information; increase representation of
stigmatized social groups in valued, authoritative roles in
the court to foster positive intergroup relations and provide
immediately accessible counter-stereotype examples.
For individuals who seek greater contact with counter-stereotypic individuals,
such contact is more effective when the counter-stereotype is of at least equal
status in the workplace (see Pettigrew & Tropp, 2006). Moreover, positive and
meaningful interactions work best: Cooperation is one of the most powerful forms
of debiasing contact (e.g., Sherif, Harvey, White, Hood & Sherif, 1961).
In addition to greater contact with counter-stereotypes, this strategy also
involves decreased exposure to stereotypes. Certain environmental cues
can automatically trigger stereotype activation and implicit bias. Images and
language that are a part of any signage, pamphlets, brochures, instructional
manuals, background music, or any other verbal or visual communications
in the court may inadvertently activate implicit biases because they convey
stereotypic information (see Devine, 1989; Rudman & Lee, 2002; Anderson,
Benjamin, & Bartholow, 1998; for examples of how such communications

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can prime stereotypic actions and judgments; see also Kang & Banaji, 2006).
Identifying these communications and removing them or replacing them with
non-stereotypic or counter-stereotypic information can help decrease the amount
of daily exposure court employees and other legal professionals have with the
types of social stereotypes that underlie implicit bias.

Conclusion
Research shows that individuals develop implicit attitudes and stereotypes
as a routine process of sorting and categorizing the vast amounts of sensory
information they encounter on an ongoing basis. Implicit, as opposed to explicit,
attitudes and stereotypes operate automatically, without awareness, intent,
or conscious control and can operate even in individuals who express low
explicit bias (Devine, 1989). Because implicit biases are automatic, they can
influence or bias decisions and behaviors, both positively and negatively, without
an individuals awareness. This phenomenon leaves open the possibility that
even those dedicated to the principles of a fair justice system may, at times,
unknowingly make crucial decisions and act in ways that are unintentionally
unfair. Thus although courts may have made great strides in eliminating explicit
or consciously endorsed racial bias, they, like all social institutions, may still be
challenged by implicit biases that are more difficult to identify and change.
Devine (1989) argues that prejudice need not be the consequence of ordinary
thought processes if individuals actively take steps to avoid the influence
of implicit biases on their behavior. Avoiding the influence of implicit bias,
however, is an effortful, as opposed to automatic, process and requires intention,
attention and time. Combating implicit bias, much like combating any habit,

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involves becoming aware of ones implicit bias, being concerned about the
consequences of the bias, and learning to replace the biased response with
non-prejudiced responsesones that more closely match the values people
consciously believe that they hold (Law, 2011).
Once judges and court professionals become aware of implicit bias, examples of
strategies they can use to help combat it and encourage egalitarianism are:
Consciously acknowledge group and individual differences (i.e., adopt a
multiculturalism approach to egalitarianism rather than a color-blindness
strategy in which one tries to ignore these differences)
Routinely check thought processes and decisions for possible bias (i.e., adopt
a thoughtful, deliberative, and self-aware process for inspecting how ones
decisions are made)
Identify sources of stress and reduce them in the decision-making
environment
Identify sources of ambiguity and impose greater structure in the decisionmaking context
Institute feedback mechanisms
Increase exposure to stereotyped group members (e.g., seek out greater
contact with the stigmatized group in a positive context)
Those dedicated to the principles of a fair justice system who have worked to
eliminate explicit bias from the system and in their own decisions and behaviors
may nonetheless be influenced by implicit bias. Providing information on implicit
bias offers judges and court staff an opportunity to explore this possibility and to
consider strategies to address it. It also provides an opportunity to engage judges
and court professionals in a dialog on broader race and ethnic fairness issues in a
thoughtful and constructive manner:

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Recognizing that implicit bias appears to be relatively universal provides

an interesting foundation for broadening discussions on issues such as
minority over-representation (MOR), disproportionate minority contact
(DMC), and gender or age discrimination. In essence, when we look
at research on social cognitive processes such as implicit bias we
understand that these processes are normal rather than pathological.
This does not mean we should use them as an excuse for prejudice or
discrimination. Rather, they give us insight into how we might go about
avoiding the pitfalls we face when some of our information processing
functions outside of our awareness. (Marsh, 2009, p. 18)

See, for example, state court reports of racial fairness task forces and commissions, available
through the National Center for State Courts at http://www.ncsc.org/SearchState and the
National Center for State Courts Interactive Database of State Programs to address race and
ethnic fairness in the courts, available at
http://www.ncsc.org/refprograms.
2
See, for example, National Center for State Courts (1999, p. 37), reporting on a national survey
of public attitudes about state courts that found 47% of Americans surveyed did not believe
that African Americans and Latinos receive equal treatment in Americas state courts, 55%
did not believe that non-English speaking persons receive equal treatment, and more than
two-thirds of African Americans thought that African Americans received worse treatment
than others in court. State surveys, such as the public opinion survey commissioned by the
California Administrative Office of the Courts report similar findings: A majority of all California
respondents stated that African Americans and Latinos usually receive less favorable results
in court than others, approximately two-thirds believed that non-English speakers receive less
favorable results, and, a much higher proportion of African Americans, 87%, thought that African
Americans receive unequal treatment (see Rottman, 2005, p. 29).
3
Social science research on implicit stereotypes, attitudes, and bias has accumulated across
several decades into a compelling body of knowledge and continues to be a robust area of inquiry,
but the research is not without its critics (see What Are the Key Criticisms of Implicit Bias
Research? in Appendix B in Casey, et al., 2012). There is much that scientists do not yet know.
This project brief and the full report on which it is based are offered as a starting point for courts
interested in exploring implicit bias and potential remedies, with the understanding that advances
in technology and neuroscience promise continued refinement of knowledge about implicit bias
and its effects on decision making and behavior.
4
See How Is Implicit Bias Measured in Appendix B in Casey, et al. (2012) for more information on
measures of implicit bias.
5
See Appendix G in Casey, et al. (2012) for more information on the strategies.
1

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Web Resources Cited

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http://www.ncsc.org/SearchState
National Center for State Courts, Interactive Database of State Programs:
http://www.ncsc.org/refprograms

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