The Defense Perspective
I agree that as humans, judges are biased. It's impossible to be human without having bias of some sort.
I think that your suggestion that judges receive diversity training is a good one. If you were to run this type of training, how would you conduct it? What issues do you consider most important? And how would you account for the fact that different judges are biased in different ways?
We have one judge where I live, who will remain nameless. I'll call her Judge X. She is known as an "emotional judge," and as someone who is very hard on defendants. She's only the second woman to be appointed to this particular court, and is the first African American to serve at this particular bench. If you're a criminal lawyer in my city, and a new client approaches you and tells you that they have Judge X, your first reaction will probably be a two word sentence containing an expletive.
Based on what I've learned from lawyers in the area, I get the sense that this judge faced opposition during the appointment process -- as a black female judge appointed by a black mayor. Conservatives were worried that as a minority, a woman, and an appointee of a liberal administration, she would be "soft on crime." In perhaps an unconscious response to this fear and criticism, she's become one of the harshest judges to serve on the bench in the last 20 years.
How could such a judge be educated by diversity training? I'm not sure if it would be beneficial.
Here's another example. There's another judge in the same court who is generally well-respected. He came from a wealthy family and attended excellent schools. It would be difficult to believe that he's faced much, if any discrimination or serious hardship. He's an older man, and a very nice man, but he has almost nothing in common with the typical criminal defendant.
Judge Y, as I'll call him, is generally considered to be quite fair. He's certainly not afraid of imposing harsh sentences, and has done so many times. But most lawyers in the area expect to receive a fair hearing in Judge Y's court.
Judge Y would probably be happy to go through diversity training, but I doubt that he'd need it. If a defendant or counsel brings up a legitimate issue, he's happy to hear it. He's intellectually curious and he'll research relevant cultural issues if he's asked to. I get the sense that he's generally happy to do this, as it adds to his knowledge, which he seems to prize above all else.
These are only two examples, and they may be exceptions to the rule. But I hope they show that designing diversity training for judges would likely prove difficult.
How might you design a diversity training program for judges?
(And yes, this officially qualifies as my longest comment, ever. Thanks for the post.
The same bias can lead to harsher decisions regarding persons of the same racial or ethnic background. Being harsher on those who are perceived to be improperly "flying the flag"
The diversity training I recommend essentially sensitizes the judge to examine their bias and to realize they have bias. That is usually half the battle. Most jurors won't admit they are biased until we talk with them for a while and help them realize we are all prejudiced in some form or fashion. That's the same for judges, of course. Give them examples of cultural biases, create workshop environments in which hypothetical situations can be addressed which touch on cultural issues, etc. Get experts in to train judges about rural Mexican dating rituals, or whatever. I bet a smart person could think of many ways to present the notion of cultural bias to a judge and help them learn to resolve those issues fairly.
Why should a judge care about Mexican dating rituals? If people are in this country, they are expected to obey our laws, just as they demand that we obey theirs. Ever been caught with a bullet in Mexico? We don't allow Mexicans or anyone else here to legally marry 12 year olds like they do in Mexico or 9 year olds like they do in some Muslim countries. We don't beat women for not covering their hair like they do in Muslim countries. If they are too stupid or lazy to learn our laws, tough shit. How about they be sensitive to our culture for a change? If not, how about they just stay in their own countries? So many of them come here illegally and then we are supposed to be sensitive to their culture and have our laws accommodate them? Get real!
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