Implicit bias against Latinos, who now make up the largest subset of federal criminal defendants, poses an increasing threat to the integrity of the justice system, according to a paper in the Seattle Journal for Social Justice.
The most effective response is for defense attorneys to directly confront juries and judges with evidence showing their clients are victims of such bias—even if such a defense ends up being ruled inadmissible, wrote the author of the paper, Walter I. Gonçalves, Jr., an assistant federal public defender in Tucson, Az.
According to Gonçalves, a “race-conscious approach with client-centered principles can allow the lawyer to zero in on facts and decisions that otherwise would not be known.”
Gonçalves suggested similar approaches are useful in mounting defenses for African Americans and other minorities, but he said Latinx populations, the fastest growing ethnic group in the U.S., are now particularly vulnerable.
He cited statistics showing that in FY 2017, 53.2 percent of all persons convicted of a federal offense were Hispanic, although they comprised just 17.6 per cent of the U.S. population.
Being open and conscious of race at the start of a trial and throughout will enable attorneys to confront stereotypes that would otherwise harm their clients, he wrote.
Drawing on his own experience, Gonçalves said that after 10 years of practice as an assistant public defender in Arizona’s Puma County, where Tucson is located, he realized that implicit bias against the growing number of minority criminal defendants in the county superior court was hampering his efforts.
Nevertheless, his colleagues “rarely discussed race issues, and did not employ tactics to make race salient in practice.”
Gonçalves cited peer-reviewed research showing that “explicitly discussing race during trials and pre-trial hearings reduce reliance on stereotypes.”
Racial stereotypes are triggered when initially interacting with people of different races and cultures and enhance the “pervasiveness of implicit bias,” so direct efforts to use race as a way of positively framing a defendant’s story can undermine those stereotypes, he suggested.
“The defense attorney should get positive details about the client’s life to create a meaningful story of innocence or mitigation,” Gonçalves wrote.
To reinforce the point, Gonçalves proposed using character witnesses to “mitigate and blunt the impact of racial bias.”
Tackling Implicit Bias Head-On
Gonçalves said lawyers could even be more direct by making jurors aware that they might be subject to implicit bias.
He described it as a “race-switching instruction,” in which the defense attorney would request that the jury imagine a different criminal case in which the accused is potentially a white person, and to ask them to see if that makes them reevaluate their thoughts about the defendant.
Defense attorneys could also cite research showing “…people are more likely to perceive a given ambiguous action as aggressive and dangerous when performed by an African American compared to a white person, and that people misread hostility in African-American faces more often than white faces.”
This head-on approach to the problem highlights implicit bias for the jury, and the jurors could contemplate their own thoughts and reactions, Gonçalves explained.
Finally, Gonçalves suggested that the judge read out a prepared statement on the prevalence of implicit bias in his or her instructions to a jury before a trial begins.
Juries must be reminded that, “the law demands that you return a just verdict, based solely on the evidence, your individual evaluation of the evidence, your reason and common sense, ” wrote Gonçalves.
“Without awareness and education, implicit bias and stereotyping will continue to negatively influence the behavior of criminal justice professionals and jurors.”
The full study can be accessed here.
This summary was produced by TCR staff writer Andrea Cipriano