Law Enforcement and Implicit Bias

Episode Notes

Transcript

Planet Lex: The Northwestern Pritzker School of Law Podcast

Law Enforcement and Implicit Bias

11/16/2016

Intro: Welcome to Planet Lex, the podcast of Northwestern Pritzker School of Law, with your host Dean Daniel B. Rodriguez, bringing it to you from Chicago, Illinois. Take it away Dan.

Daniel B. Rodriguez: Hello and welcome to Northwestern Law’s Planet Lex, podcasting from the Northwestern Pritzker School of Law in Chicago, Illinois. My name is Dan Rodriguez, your host.

Over the past few years, coverage of police shootings have dominated news cycles, creating a large and enduring conversation about race and law enforcement. After the 2014 death of Michael Brown, an unarmed black teenager, shot by a White police officer in Ferguson, Missouri the Black Lives Matter Movement gained national prominence.

Black Lives Matter has demonstrated against the deaths of African-Americans killed in police custody across the United States, including the cases of Tamir Rice in Cleveland, Laquan McDonald here in Chicago, and Freddie Gray in Baltimore.

Joining me today to talk about these issues of policing and race is Destiny Peery. Destiny is an Assistant Professor of Law here at Northwestern, where she earned her JD and PhD in Social Psychology. Destiny’s research focuses on implicit bias and how perceptions and thinking about race impact the legal system.

Destiny, welcome! Thank you for joining me.

Destiny Peery: Thanks for having me.

Daniel B. Rodriguez: So let me begin by asking I suppose the empirical question that is, are tensions between police and their communities in which they work, particularly communities of color, getting worse or instead is it that social media and technology are just amplifying what have long been tensions?

Destiny Peery: The problem is not a new problem. So lots of the things that we are seeing now are things that have been happening for decades, for — since slavery, since the first slave patrols that formed the foundation for the police departments that we know today, and yet, social media has played a big role in amplifying the issue. I don’t know, maybe it has amplified the tensions as well, but certainly what it has done is shown a spotlight on something that has been around for a long time and yet many people didn’t fully appreciate the extent of the issues within law enforcement and between law enforcement and the communities that they police, particularly low income communities and communities of color.

But if you talk to people in these communities, they will say, this isn’t anything new, and social media simply provided an opportunity for other people to know what’s going on and for our stories to be amplified and put on the national platform in a way that was never available before.

Daniel B. Rodriguez: So let me pressure you on that point a little bit, without in any way diminishing the horrific tragedies that I mentioned and others I could have mentioned at the beginning of this program. Is there empirical support for the, this isn’t new comment, that is to say how would we measure whether and to what extent there has been a rise in violence committed by police officers in these communities of color?

Destiny Peery: So there is quite a bit of data, although admittedly, I think if you talk to a lot of people who do research in this area, the data can be very spotty in a lot of ways, but there is consistent enough data that shows that police overall have become less violent, more professionalized, and there are lots of ways in which because of their better training and expectations from the public that they don’t engage in as much brutality as they once did. And they certainly don’t engage in as much brutality that is sanctioned by large portions of the community like they once did.

So if you look at the number of police shootings and you look at uses of force, even though we are in a climate in which there are a lot of complaints about these things, there’s a lot of anecdotal historical evidence to suggest that things have gotten better. That doesn’t mean obviously that there’s not a long way to go, especially in particular communities or with certain police departments, but historical data and historical anecdote would suggest that we have come a long way in terms of policing and the relationship to their communities.

Daniel B. Rodriguez: Great. This is an impossibly broad topic that this is the issue of race and law enforcement and in our precious time we will only be able to dig deep on a few issues, but noting the introduction that your work is on implicit bias and that’s the key focal point of your work in law, in social psychology. I want to spend the balance of our time talking in somewhat more detail about that.

So in recent years perhaps one of the most significant developments has been greater attention at the federal level to the role of implicit bias and what the state TS might do about that issue. So as you know, in 2014 President Obama recommended in the wake of the killing of Michael Brown in Ferguson, Missouri implicit bias training for officers. In June of this year the Department of Justice has strongly urged law enforcement departments to undertake trainings on how unconscious bias influences policing.

(00:04:59)

Here is an article from just a few months ago entitled, Why the Department of Justice wants to force its 28,000 employees to confront unconscious racial biases. So let me begin by asking you, what would be your answer to that question of why?

Destiny Peery: I think part of it is that there is a call for there to be some response and there is an increasing recognition of the role, not only of explicit biases, but also unconscious, non-conscious implicit biases.

Daniel B. Rodriguez: Can I ask you, I am sorry to interrupt you, can I ask you to help our listeners by defining in the best way you can what exactly is implicit bias.

Destiny Peery: So implicit bias, as I mentioned before, also often referred to as non-conscious bias or unconscious bias refers to the types of biases that operate relatively automatically and outside of our attention and control.

So they are distinguished from explicit biases in that they are not the things that we measure by survey, they are not kind of captured by peoples’ explicit attitudes or what they are willing to report with regard to their racial attitudes or gender attitudes, et cetera.

So they are informed by something that’s more subtle. And they come out of the way that we process information relatively automatically. So you can think of the influence of stereotypes and exposure to information in our environment that has an influence on us whether we intend for it to or not, and that’s what we are trying to capture when we talk about implicit biases.

Daniel B. Rodriguez: So that’s at the level of concept, and thank you for that, it’s very helpful. How do we go about measuring – -well, let’s begin with the fundamentals, the very existence of implicit bias, and then beyond that, once we have established that such a notion, such a concept, such a practice exists, how do we measure its magnitude?

Destiny Peery: So the primary measure of implicit bias is the IAT, the Implicit Association Test, which was created three decades ago by social psychologists. And the whole premise of an implicit measure, including the IAT is that it measures automatic responses. So you are looking for the strength of associations between say white and good and black and bad, which is measured both by how quickly people can respond, but also the errors that they make.

And in the United States context, most people, White, Black, Hispanic, Asian have a much easier time associating white and good and black and bad, and so ultimately those tests are always measuring kind of what is the automatic response that you have to associating those two that a valuative category of good and bad and whatever identity group that you are interested in.

So over three decades of research in social psychology and now in behavioral economics and a number of other fields have shown that we know that implicit bias has impacts all across the board, in employment decisions, in interpersonal interactions, and there are dozens and dozens, hundreds of studies that have both used the IAT measurement, but also looked at the outcomes of the presence of implicit bias in many, many different settings, including in policing at this point, and have shown that when there is more of this implicit bias, when there are stronger associations between say white and good and black and bad that you get bad outcomes; you get discrimination, you get prejudice, you get disparities in distribution of resources and outcomes, et cetera.

Daniel B. Rodriguez: Is this research, body of research in some ways the progeny of some of the research that was famously articulated, obviously perhaps in a less scientifically developed form back in Brown v. Board of Education, when you think about the so-called doll studies that undergirded in many important respects the Supreme Court’s decision in desegregation cases.

Destiny Peery: So from a legal standpoint, sure, those initial studies were talking about the types of biases that influence those children in ways that they or their parents may not have even realized, let alone the biases that might exist in the world around them, that they are internalizing the messages about whether they are good or bad or beautiful or not beautiful, and that’s having a consequence for how they think about themselves and how they think about their group and other people.

And from the social science side, the idea of implicit bias comes out of an even longer tradition of social cognition research on the difference between our kind of explicit, conscious, deliberate thinking, the thinking that we most often think of when we think of thinking. So we think of, oh, I sit down and I weigh the evidence and I make a very reasoned decision, and yet, we also have this system that processes information without us having to pay any attention to it, and that’s where most of the information comes from. And that idea has been around for even longer than implicit bias has been around.

Daniel B. Rodriguez: So let’s bring the topic together, implicit bias and policing, so as long ago as 1974 a UC Berkeley criminologist Paul Takagi famously said “Police have one trigger finger for whites and another for blacks.” And I would imagine that undergirding some of the calls by the Obama administration for implicit bias training is in fact this assumption, this belief that indeed the police see whites and blacks differently in that respect.

But I want to press that point.

(00:10:00)

There is, as you know, because you work in this field and you have read these studies, there are some studies that contradict in some ways, not the notion of implicit bias certainly, but the notion that it infects police, for example.

So you may be familiar with these studies out of Chicago and Denver that have called into question whether or not there really is racial bias in the decision to shoot. As I understand some of these studies, there are really efforts to refine these various, I call them video games, not to trivialize it, but these devices that help us understand whether and to what extent folks have manifested implicit bias.

Tell me whether this is wrong, but one result of these studies is while on the one hand community members are very quick to pull the trigger in these studies with white and black individuals that in fact there is not systematic evidence that the police officers are as prone to this quick trigger, as it were. So what would you say about some of that research?

Destiny Peery: So if you look at the data more closely you do see that police officers and the assumption is because of their training and not just familiarity with guns, because they have also done the studies with community members or non-police officers who are familiar with using guns, so it’s not simply experience with guns, it’s something distinct about making that type of decision in real life, the shoot, not shoot decision that has led there to be evidence that police show significantly less, if no bias, in those studies, especially compared to community members.

And there was also the Roland Fryer, I don’t know, maybe we could call it from a social science perspective fiasco of an unpublished paper and un-peer reviewed paper getting attention because it contradicted the assertion by a recently published study that there was this big bias in shooting of black men versus white men. And his data suggested that wasn’t true. But all of it has —

Daniel B. Rodriguez: I detect a however coming.

Destiny Peery: However, a lot of this comes down to fights about methodology. So what do we know about the data that’s being used and what conclusions that we or limitations — what limitations on the conclusions do we have to put on there because of the particulars of the data. And the reality is there are a lot of limitations because of the kind of poor data that often exists or the paucity of data that exists to look at across jurisdiction differences, to look at the issue in a really systematic way that researchers are accustomed to being able to do when they set up an experiment or something like that. So once you are dealing with real world data it becomes much more complicated.

So Roland Fryer Study probably shouldn’t have been outright dismissed by the people who didn’t like his conclusions. He wasn’t necessarily trying to assert that the other study should be dismissed, but he was trying to complicate the story, and the reality is the story is complicated.

Daniel B. Rodriguez: You make the fascinating point in your work and it’s quoted in some of these articles that there actually may be an unintended consequence from the attention put or even in some cases lavished on the issue of implicit bias. You say the new sexy thing to talk about is implicit bias. You go on to say, I worry that the other areas that are certainly as important, if not more, are pushed aside as a result. You conclude, in some ways the discussion of implicit bias has come to the execution of discussion about systemic or institutional biases. Say a bit more about that, what in fact are the risks of focusing like a laser beam on implicit bias, please?

Destiny Peery: So one of the reasons I am critical, even as a social psychologist, of the focus on implicit bias is no singular focus explains the whole world of what bias looks like and what its effects are. And so focusing on one to the exclusion of others is necessarily going to give you an incomplete picture.

But the reality is if we look at interventions suggested by research for dealing with implicit bias, we don’t have a lot. And a lot of people in the diversity bias, prejudice, discrimination space want some kind of silver bullet. And so I think a lot of people have jumped on implicit bias as the new thing that’s going to solve all of our problems, the new thing that’s going to be the answer that we have never been able to find before. And it’s not. It’s one piece in a very large puzzle, psychological and otherwise, for dealing with and thinking about interventions on bias.

And given that a lot of peoples’ focus is on changing individuals, changing hearts and minds, we know nothing, virtually nothing about successful interventions to change hearts and minds, to change the underlying implicit bias. We know a lot more about systemic, institutional organizational approaches that can help cabin or ameliorate the effects of bias. And so the focus tends to be still on the individual and the research just isn’t there to support that we know anything about how to deal with that.

Daniel B. Rodriguez: But there are nonetheless efforts of trying. I am looking at a paper here entitled A User’s Guide to Debiasing, right. And you have probably seen articles like this with similar provocative titles, and there’s a long menu of potential options. So you are familiar with Richard Thaler and Cass Sunstein’s work about Nudges affecting the external environment.

(00:15:01)

So there are a myriad of various interventions, to use your term, that are suggested to debias, as it were. Is it fair to say from what you have just said that you are skeptical about those efforts, and if so, why?

Destiny Peery: I am surely skeptical. So a lot of the interventions are things like putting photos of counter stereotypical group members in a space so that people are exposed to examples of group members who don’t fit a stereotype. That’s great. We do know that that has some impact. But if we are talking about real systemic change and all we have are interventions like that, it’s unlikely that we are going to get an improvement in the outcomes that we are concerned about.

So when I give my students these types of papers to read, for example, they laugh at the interventions. They say there’s all of this information that’s really important and establishes that implicit bias is a problem and yet all we get to when we get to interventions are put up photos of counter stereotypical people. You could sit down and do a computer task where you retrain yourself to have different associations if you are willing to invest an hour to do a 1,000 trials every day, and you have to keep doing that every day.

And those interventions are the interventions that we get when we focus on the individual. So when we focus on, how do we change officer Joe’s attitudes as opposed to, how do we think about reorganizing policing or putting policies and procedures in place that will help regardless of an officer’s individual attitudes, prevent that officer from discriminating or acting on prejudices.

Daniel B. Rodriguez: So in the time we have available let me shift our attention precisely to where you suggested ought to be, which is thinking about maybe more big picture reforms to policing, so sort of without giving you a comprehensive list.

So there’s been controversy over so-called broken window policing. I am looking at an article saying broken windows policing doesn’t work, and the broken windows idea of course stemming from the famous article by James Q. Wilson and his co-author in the early 1980s about the way in which police should reduce disorder; arrest folks for vagrancy and zero tolerance and all of that.

And the suggestion now is there’s a backlash that broken windows policing doesn’t work. What do you think about that debate?

Destiny Peery: So I think this all ties to questions of procedural justice and community policing, and the call for a return to community policing or for the implementation of procedural justice focuses on the bad outcomes of something like broken windows policing, where people in the community feel harassed by police officers who are out issuing minor citations for every infraction, who are chasing around people who are not in the scheme of things, doing the things that the community members are the most concerned about.

Daniel B. Rodriguez: But what about the fundamental fact that violent crime has decreased and it’s decreased pretty systematically. Certainly, as we are talking in Chicago, noting the tragedy of pockets of violent crime in various parts of the communities which can’t be minimized, but the overall reduction of violence. Shouldn’t the folks endorsing broken windows policing saying we have had great success?

Destiny Peery: You see that, for example, in New York, where you have the former Mayor saying, look, the statistics show that our stop and frisk tactics and our broken windows policing corresponded with a decrease in crime, and they take credit for that. But again, you have to go look at the data, and the data will suggest that of course it’s much more complicated than any one policing strategy.

And the reality is if you look at the data of stop and frisk, for example, which can be seen as a tactic in line with broken windows policing, they had very low of hit rates. So they were stopping people unnecessarily, spending lots of time and money and creating a lot of problems for trust and legitimacy of the institution. At the same time, there are lots of other factors that correspond; economy, other resources being available in communities and other things, social events or world events going on that have a part to play in producing those statistics. And so cherry-picking them to say, this strategy is — this was the result of this strategy is a dangerous thing to do.

Daniel B. Rodriguez: What about the availability of body cameras or even the suggestions that police officers have to have or ought to have body cameras, do you think there is — what does the data show about the success in reducing violence in that?

Destiny Peery: So I think we don’t know yet. So body cams are still being rolled out. Many jurisdictions don’t have them, and where they are being rolled out a lot of times they are still in pilot and so knowing what the consequences or the outcomes of that will be are hard to know.

But we do know that this is yet another multilayered reform and the outcomes of it are multilayered in the sense that it actually is beneficial a lot of times to the police to have the cameras on them to show a side of a story that represents well what the police officer was doing, it provides evidence for that police officer.

So I think some people assume that it’s always going to work against the police; it certainly doesn’t. Sometimes it works in favor of the community member who is telling a story that’s not being believed.

(00:19:55)

But there’s also the reality that we have to be thoughtful about what a camera does to an understanding of a situation. So New York Times had a really great interactive article about body cams and dash cams, and the literal change in perspective and the impact that that perspective can have on what you think is going on in a situation.

So viewing a situation only through the video of a body cam can make it look different; literally, look different than viewing it from a third-party dash cam, through an eyewitness or something like that. And so we have to be cautious about drawing too many conclusions in one direction or another about, again, body cams being the thing that will save us from all of our problems.

So again, it’s offered as kind of this is the one thing that will make everything better. And there isn’t one thing that will make everything better.

Daniel B. Rodriguez: I was afraid you were going to say that because my question was, if not body cams, if not stop-and-frisk, if not broken windows policing, is there one thing. We have for better or worse, natural experiments all around us. We have various different experimentations at the state level since policing is still a fundamental as you know the state and in many respects local prerogative. And we also have the different systems in other countries around the world.

Are there places you could locate whether it’s states in the United States or other countries where they’re really moving in a direction, particularly in the area of policing and race or policing generally that the United States should look at more in earnest, do you think?

Destiny Peery: So one community that I’ve learned a lot about and is local to Chicago is Oak Park. So Oak Park sits on the border of Chicago and it has been able to even though it borders the Austin neighborhood, to avoid a lot of the problems that have arisen in Austin with regard to the CPD.

And part of it has to do with them working on community policing and procedural justice, policies that really focus on humanizing not only the police, but the community and doing that in both direction, so that – but remembering that these are people that you’re interacting with and people want to be respected, they want to know that what is happening to them is fair. And that happens regardless of whether there’s a bad outcome for a particular citizen.

So a lot of research on procedural justice, including some done in Oak Park has shown that with procedural justice, policies that focus on respect and voice and making sure that people on both sides recognize the humanity of the other, that you see an increase in satisfaction from the community, you see a decrease in incidence, use-of-force. Sometimes, even a decrease in law breaking because people break the law less when they are in a community where they feel like law enforcement is legitimate and they trust law enforcement to take care of them and protect them.

And so there are lots of communities around there. Unfortunately, some of our biggest departments in the nation haven’t always been the ones that people can look to, at least in terms of some of what people would consider the more progressive policing policies. But I think LA has been trying with its coming out of the consent decree to think about these things. CPD even given its –

Daniel B. Rodriguez: Chicago Police Department.

Destiny Peery: Yeah. Even given its struggles, they’ve implemented a very intensive procedural justice training program that they’ve been training all 12,000 of their officers for the last two years and we’ll see what the outcomes of those are, they are trying to measure them.

So a lot of the reforms at least the ones that we think of now is having something to do with ameliorating the concerns right now, are ones that are happening right now. And so we will have to kind of wait to see what those outcomes will be.

Daniel B. Rodriguez: Well thank you. I said at the outset that we would only be able to really scratch the surface on what is a complex conversation that one that goes beyond policing. We didn’t really even touch upon issues involving the criminal justice system more broadly. So I hope we’ll have the occasion to have a conversation again off very soon.

But meanwhile, that’s our show for today. Thanks to Professor Peery for joining me. And thanks for listening. I am Dan Rodriguez, signing off from the Northwestern Pritzker School of Law.

Outro: If you would like more information about today’s show, please visit  HYPERLINK “http://www.law.northwestern.edu/planetlex” law.northwestern.edu/planetlex or  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com. Subscribe via iTunes and RSS. Find both Northwestern Pritzker School of Law and Legal Talk Network on Twitter, Facebook and LinkedIn, or download the free app from Legal Talk Network in Google Play and iTunes.

The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Northwestern University, Legal Talk Network or their respective officers, directors, employees, agents, representatives, shareholders and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.