Like other supervisory lawyers, federal judges have twin responsibilities. They must comport with ethical and professional rules that govern their own behavior while simultaneously monitoring other attorneys to ensure they are not violating similarly controlling rules. The judicial robe, however, adds an extra dimension of responsibility in the trial oversight process. Specifically, as our understanding of unconscious bias continues to expand, the judge’s responsibility to address its influence also increases. That responsibility demands that judges adopt practices to limit the impact of such bias, especially in criminal court cases.
The federal judge has great power over the process and procedure of cases. The federal judge holds court, grants motions, and issues orders demanding particular conduct or accounting from the parties involved. The court also facilitates, to a large extent, the scheduling or timing of court action. Given such extensive procedural power, federal judges also have two powerful tools to eliminate or, at minimum, minimize unconscious bias. First, judges can ask attorneys specific questions that require them to reflect on whether their own decisions are biased. Second, judges can liberalize any unnecessary time constraints.
Although the research on solutions to implicit bias is still developing, these judicial actions would be important systemic changes to a criminal justice process that is particularly susceptible to unconscious discrimination. Both reflecting on one’s own decisions and taking adequate time to make decisions would allow attorneys to address and remove choices or value assessments that would ordinarily be subject to implicit bias. Even if these changes failed to encourage newer decision-making practices that are less susceptible to implicit bias, they could still contribute to reducing the impact of such bias on attorney behavior. This is because new courtroom procedures would provide the formal framework necessary to bring disciplinary proceedings against a noncompliant attorney by creating a court record of the attorney’s behavior and purported reasons for engaging in such conduct. This alone would be a significant contribution to both the profession’s attempts to regulate bias in legal practice and federal judges’ responsibility to manage fair and just court processes.