Let’s Keep Bias Out of Our Legal System

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Katherine Fernandez Rundle

Katherine Fernandez Rundle

We should not have to say that bias has no place in our criminal justice system.

But it needs to be said—and repeated—in light of the 72 Philadelphia police officers who were recently placed on administrative suspension because they reportedly posted bigoted social media comments on Facebook, or the 70 serving and former U.S. Border Patrol employees who are now under investigation after revelations they were part of a secret Facebook group that mocked lawmakers and immigrants.

Editor’s Note:  Thirteen of the Philadelphia officers mentioned above have since been fired. For additional reporting, please see  Police Agencies, Unions Issue Warnings on Social Media

Everybody in our criminal justice system should work to protect and serve all parts of every community. There are no exceptions.

I and former Miami Beach Police Chief Dan Oates confronted this exact situation in 2015, when an internal affairs probe discovered that two ranking former police officer administrators sent hundreds of offensive, racist, and pornographic emails to fellow cops through the city email system.

Confronting such conduct and bringing it to light is the only way to eliminate bigotry and bias.

A subtler problem is eliminating implicit biases, which are unconscious beliefs or attitudes that may influence one’s actions.

Recently, I spoke with outgoing San Francisco District Attorney George Gascón, my good friend and colleague, to discuss his experiment with the “blind charging” of the criminal defendants his office will prosecute.

DA Gascón told me that his plan, not yet in effect, will eliminate all specific individual identifiers from the paperwork provided to prosecutors prior to their making charging decisions on their cases. Identifiers would only come into play after a case has been filed.

His accumulated data over an extended period of time could provide significant insight to prosecutors across the country concerned about the impact of implicit biases. I will be most interested to see the impact of this approach once it is implemented and evaluated, as DA Gascon’s results may guide prosecutors across the country.

In the Miami-Dade State Attorney’s Office, I have long been concerned about the potential influence of implicit biases on the decisions our attorneys make.

As State Attorney, I have worked hard to avoid the issue by recruiting a diverse group of lawyers from around the country. We bolster our recruiting and reach minority law students through our popular internship program.

My efforts have led to real results, as the Daily Business Review recognized:

The Miami-Dade State Attorney has proven that recruiting minority lawyers is possible. And she does it without the benefit of six-figure starting salaries to woo them.

In an international community like Miami-Dade, where our school system indicates that some 56 different languages are spoken at home, our recruitment efforts ensure that our staff reflects the many faces of our community and helps undercut potential implicit biases influencing our cases.

Like a shadow, implicit bias can only be eliminated with the bright lights of education, personal recognition and individual concern. Thus, we have devoted specific parts of our training process, for both new and veteran attorneys, to this issue.

Our diversity and success in fighting potential implicit bias certainly contributed to the Sarasota Herald Tribune’s conclusion that “One court that consistently outperforms others when it comes to fairness in sentencing is Miami’s 11th Circuit.”

Their Pulitzer Prize-winning investigative team spent some two years reviewing Florida’s criminal court system and went through hundreds of specific individual files and cases to come to this conclusion.

Bias can never, and should never, play a role in a legal system that so deeply impacts the lives of its citizens. While I am State Attorney, it never will.

Katherine Fernandez Rundle is State Attorney for Miami-Dade County. She welcomes comments.

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