Not Just A Bleeding Heart: Combating Bias In The Justice System

It’s a common problem for women in the legal system; gender bias automatically leads our peers to read us as bleeding hearts. We’re seen as soft on crime and lenient in sentencing. And in an attempt to combat this stereotype and break into specialties like criminal and corporate law, some women lean the opposite way and become exceedingly aggressive, regardless of the consequences.

But what if, as individuals who face bias within the legal profession, we as women lawyers used our first-hand experiences of discrimination for justice – both in the courtroom and beyond? So many of the cases we are called to adjudicate – from basic traffic court claims to drug cases, and predictive policing issues – rely on race, class, or other prejudicial factors that unfairly affect our clients’ legal outcomes and their futures.

Driving While Black

Research has confirmed that minority drivers are stopped disproportionately often, a phenomenon that many have begun to refer to in shorthand as “driving while Black.” And as we have seen more recently, too many of these stops turn into dangerous confrontations and the unnecessary deaths of minority drivers at the hands of police. This indicates that it’s a problem we need to address before it reaches the courtroom.

One way we can approach this problem is through the angle of unreasonable search and seizure, which would simultaneously align work on discrimination in traffic stops with work on problematic practices like “stop and frisk.” Minorities face a much higher likelihood of being searched during a traffic stop, so if we begin to actively question where we set the bar for reasonable suspicion in search scenarios, we can help de-escalate these interactions.

Reform And Rehabilitation

At a time when we’re facing an opioid epidemic, Attorney General Jeff Sessions has handed down orders for prosecutors to take a harsher line on drug crimes. This is in direct contrast with the prior administration, which sought to downgrade prosecutorial aggression in these cases, noting that drug prosecutions are racially motivated.

Because this ruling is coming down from the federal government, our best approach to the problem is to address implicit bias on the bench. Advocate for implicit bias training in the court system and seek to standardize the practice of individuation in which personal information is gathered to establish the defendant as an individual, rather than as part of a group that might face prejudice.

It’s also important that we consider the issue of jury bias. If a jury consists primarily of a different racial or class group than the defendant, for example, they may face ingroup bias, a preference for the group one belongs to over other groups. If we choose to be especially aggressive in our approach to jury selection, we can help stack the deck in favor of the most vulnerable defendants.

Inside Immigration Discrimination

Immigration is one area of the law in which gender discrimination is especially prevalent, a direct result of how dangerous situations play out in more patriarchal countries. For women seeking asylum status, for example, it can be hard to prove imminent threat because a political threat may primarily impact their husbands. Supporting refugee women’s pursuit of asylum is an important part of fighting legal bias, as is advocating for changes to the Violence Against Women Act, which requires women to prove they live with their abusers in order to apply for a visa independently of their partner.

The Hidden Face Of Bias

Finally, there are some people who believe that the best way to reduce discrimination within law and policing is by using technology, such as predictive policing software, to determine where a police presence is needed. Unfortunately, computers aren’t as unbiased as we’d like to believe. In fact, they’re exactly as biased as the people who program them.

We need to advocate for increased vetting and assessment of artificial intelligence used by law enforcement before allowing its use in the field or the courtroom. A feminist technology analysis can help support the argument that such software only replicates the bias of its programmers.

Why does reducing bias in the law fall primarily on the shoulders of women? Because we know where the cracks in the edifice are. White men, who dominate the profession, benefit from these prejudicial structures, but women within the legal profession know how to disrupt this culture; a commitment to law as justice demands we do so.

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