DEFENSE LINK

Implicit Bias and the Criminal Justice System By Leslie H. Jones-Collins, Paralegal, Trial Unit

Imagine you are in the city and it is late in the evening. As you walk down a dimly lit street, you hear footsteps behind you. Your heart rate speeds up, your pace quickens, and you immediately begin thinking about being robbed or worse. Managing to muster up a little courage, you look over your shoulder and see a white person. How do you feel? Relieved? If so, you just unconsciously employed what is referred to as “implicit bias” – defined as “discriminatory biases based on either implicit attitudes – feelings that one has about a particular group – or implicit stereotypes – traits that one associates with a particular group.” Connecticut Law Review, (Re)forming the Jury: Detection and Disinfection of Implicit Juror Bias (2012), Vol. 44, Number 3. While overt and obvious racial discrimination is largely unacceptable, we all have stereotypes that are ingrained and often unconscious, that is, implicit biases that remain with us despite our best efforts to eliminate them. Specifically, even the most well-intentioned of us can be racist even when we don’t intend to be. If you are not totally convinced, try taking an implicit bias test, which identifies, measures, and studies different forms of unconscious bias. One of the most popular tests is the Implicit Association Test (“IAT”) on Harvard University’s Project Implicit website. As Judge Mark W. Bennett, a U.S. District Court Judge in the Northern District of Iowa, explains it:

[T]he IAT pairs an “attitude object” (such as a racial group) with an “evaluative dimension” (such as “good” or “bad”) and suggests that the speeds of responses to the association of the two shows automatic attitudes and stereotypes, that is, implicit biases. “The IAT is rooted in the very simple hypothesis that people will find it easier to associate pleasant words with [European American] faces and names than with African American faces and names – and that the same pattern will be found for other traditionally disadvantaged groups.” In other words,

MONTHLY NEWSLETTER FOR CJA PANEL ATTORNEYS

LEIGH M. SKIPPER, CHIEF FEDERAL DEFENDER

APRIL 2014

The 23rd Annual Maureen Kearney Rowley

CJA Panel Training Seminar

SAVE THE DATE!! On Thursday, June 12, 2014 the Federal Community Defender Office and the U.S. District Court for the EDPA will host The 23rd Annual Maureen Kearney Rowley CJA Panel Training Seminar. The program will be held at the William J. Green Federal Building, 600 Arch Street, 2nd Floor, Phila., PA. Topics will include ethics for federal criminal defense attorneys, Third Circuit and Supreme Court update, and using technology in federal practice. Registration information will be available shortly.

Federal Community Defender Office for the Eastern District of PA

Helen Marino, First Assistant Federal Defender Kai Scott, Chief, Trial Unit

Nina Carpiniello Spizer, Assistant Chief Trial Unit Brett Sweitzer, Chief of Appeals

IMPLICIT BIAS CONTINUED ON PAGE 2

Editors Jennifer Nimmons Herman

Attorney Advisor ▬

Kimberly Campoli Paralegal/Panel Administrator

INSIDE THIS ISSUE Implicit Bias and the Criminal Justice System Page 1 Sentencing Commission Votes to Adjust Drug Quantity Table Down by 2 Levels Page 3 Recent Third Circuit and Supreme Court Cases Page 4

APRIL 2014

PAGE 2

Implicit Bias continued from Page 1

implicit bias against African Americans is shown when “African American” is more rapidly paired with “bad” than with “good.” Attributes that are associated with some feature are easier and faster to pair than attributes that are not associated.

Harvard Law & Policy Review, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions (2010), Vol. 4, Issue 1. As illustrated in the footstep scenario above, implicit biases can cause subtle reactions. However, as Judge Bennett observes in his journal article, “they are also powerful and pervasive enough to affect decisions about whom we employ, whom we leave on juries, and whom we believe.” In fact, despite high levels of interest and genuine commitment to racial fairness in the criminal justice system, judges, lawyers and jurors are as susceptible to implicit biases as anyone else. For instance, consider the recent George Zimmerman trial. When Juror B37 stated that there was no doubt that Zimmerman feared for his life when he killed Trayvon Martin, she reconfirmed the glaring racial bias that deeply plagues juries and the criminal justice system – that is, Martin, who was black, was the assailant, while non-black Zimmerman was the victim. Because the Zimmerman trial was certainly no aberration, Jonathan A. Rapping, a public defender and the author of Implicitly Unjust: How Defenders Can Affect Systemic Racist Assumptions, writes that “[i]n the criminal justice context, [implicit racial bias] manifests itself as a subconscious association of race – particularly blackness – with criminality, and influences how actors in the criminal justice system behave when confronted with the application of race to decision-making.” It is for this reason, Rapping argues, that criminal defense attorneys, “to be maximally effective” in the defense of their non-white clients, must “fight to affect systemic racial assumptions built into the American court system.” According to Rapping, the first step for defense attorneys committed to combating implicit racial bias is recognition of their own implicit racial biases. “Defenders must understand that they harbor these subconscious biases so that they can combat their influence and overcome the subtle pressures to associate race and criminality.” Once aware of his or her own subconscious biases, Rapping writes that the defense lawyer must “rais[e] awareness. . . [and] look for opportunities to educate others in the system about their own unconscious biases.” And, even when everyone else in the criminal justice system seems to disregard the issue of implicit racial bias, Rapping asserts that defense counsel must persevere and continue to focus on racial justice. To educate judges, prosecutors, and jurors about implicit racial bias, Rapping suggests several contexts in which defense lawyers can raise the issue. “They are: motions practice, voir dire, use of experts, narrative, jury instructions, and sentencing advocacy.” In his article, Rapping acknowledges that trial courts may initially be reluctant to allow defense counsel to pursue all of his proposed strategies. However, basic education through the use of jury instructions is one strategy that may be met with much less resistance. For example, U.S. District Court Judge Mark W. Bennett discusses implicit bias with jurors in his courtroom during voir dire, and covers the topic in a specific jury instruction on implicit biases before the lawyers make their opening statements. Drawing on his knowledge of IAT results, Judge Bennett’s instruction reads, in pertinent part:

IMPLICIT BIAS CONTINUED ON PAGE 3

Implicit Bias continued from Page 2

APRIL 2014

PAGE 3

Do not decide this case based on “implicit biases.” Everyone, including me, has feelings, assumptions, perceptions, fears, and stereotypes, that is, “implicit biases,” that we may not be aware of. These hidden thoughts can impact what we see and hear, how we remember what we see and hear, and how we make important decisions. Because you are making very important decision in this case, I strongly encourage you to evaluate the evidence carefully and resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluation of that evidence, your reason and common sense, and these instructions. Our system of justice is counting on you to render a fair decision based on the evidence, not on biases.

Jurors’ Use of Social Media During Trials and Deliberations (2011), Appendix D: Jury Instructions from Judge Mark Bennett (N.D. Iowa), Instruction No. 16 - Conduct of Jurors During Trial. Presumably, the majority of us would like to be free of prejudices, attitudes, and stereotypes that lead us to judge people based on the social categories they belong to, such as race and gender. But wishing things does not make them so. In light of clear evidence of implicit bias within our criminal justice system, maximizing diversity in jury pools and ensuring that criminal defendants have juries that truly represent their community is more important than ever. More diverse juries tend to produce verdicts less biased by the defendant’s race, arguably because these types of juries compel jurors to engage with each other on an equal basis during deliberations. Demographically diverse juries also encourage individual jurors to consider how their own unique life experiences, as well as implicit biases, give rise to different conclusions about the trial evidence. Curious to test your own level of implicit bias? The website www.implicit.harvard.edu includes online IATs that measure different types of biases based on race, gender, ethnicity, sexual orientation, age, religion, disability, body weight, and other characteristics. While you may honestly believe you hold no negative associations based on race, don’t be surprised if your test results belie that notion. To read Implicitly Unjust: How Defenders Can Affect Systemic Racist Assumptions in its entirety, click link: http://www.nyujlpp.org/wp-content/uploads/2014/01/Rapping-Implicitly-Unjust-16nyujlpp999.pdf.

Sentencing Commission Votes To Adjust Drug Quantity Table Down By 2 Levels

On April 10, 2014, the United States Sentencing Commission voted unanimously to reduce by two levels the base offense levels for all drug types in the Drug Quantity Table. This amendment to the guidelines will be submitted to Congress by May 1, 2013, and, barring Congressional action, will take effect on November 1, 2014. This vote should be used immediately to continue arguing for variances. Remember, Attorney General Holder has instructed U.S. Attorneys “not to object if defendants in court seek to have the newly proposed guidelines applied to them during sentencing.” http://www.justice.gov/opa/pr/2014/March/14-ag-263.html

APRIL 2014

RECENT 3d CIR CASES CONTINUED ON PAGE 5

Jeffrey M. Lindy, Esquire CJA Panel Representative

Eastern District of PA

Please contact Jeff Lindy with any CJA issues,

comments, or concerns: Lindy & Tauber

1221 Locust Street Third Floor

Philadelphia, PA 19107 (215) 575-0702

jlindy@LindyLawFirm.com

PAGE 4

Recent Third Circuit and Supreme Court Cases Christofer Bates, RWA, EDPA

Supreme Court

18 U.S.C. § 922(g)(9) / Misdemeanor Crime of Violence / Physical Force United States v. Castleman, --- U.S. --- , 2014 U.S. LEXIS 2220 (Mar. 26, 2014). The “physical force” required to satisfy the definition of a misdemeanor crime of domestic violence” for purposes of 18 U.S.C. §922(g)(9) is the degree of force necessary to support a common-law battery conviction, which is an “offensive touching.” The Court held that Castleman’s Tennessee conviction for “intentionally or knowingly causing bodily injury” to the mother of his child necessarily involved offensive touching and thus qualified as a predicate conviction under § 922(g)(9). ● Note that the force clause under § 922(g)(9) is almost identical to the force clause in the Armed Career Criminal Act’s (“ACCA”) definition of a “violent felony.” The Court’s held in Johnson v. United States, 559 U.S. 133 (2010) that the ACCA’s force clause requires “violent force,” which is “force capable of causing physical pain or injury to another person.” Castleman does not overrule Johnson. The Court held that Congress intended different meanings when it enacted the ACCA and § 922(g)(9). ● Likewise, Castleman leaves intact the many Courts of Appeals’ decisions holding that common-law battery is not a “crime of violence” under 18 U.S.C. § 16. ● The Court did not reach the question of whether “causation of bodily injury necessarily entails violent force,” which will be helpful when fighting against the U.S.S.G. § 2L1.2 enhancement.

Third Circuit Crack Reduction / Mandatory Minimum Erroneously Not Applied United States v. Ortiz-Vega, --- F.3d ---, 2014 U.S. App. LEXIS 4595 (3d Cir. Mar.

12, 2014). This case presented the unusual scenario where the defendant should have been facing a mandatory minimum sentence of 120 months for a crack cocaine offense with a mandatory consecutive 60 months for carrying a firearm in furtherance of that crime. At sentencing, the mandatory minimum was mistakenly

Interactive Sourcebook of Federal Sentencing Statistics

The United States Sentencing Commission has redesigned its Interactive Sourcebook of Federal Sentencing Statistics. The newly designed website is more user-friendly and provides additional data, including sentencing trends across time that may be broken down by offense category. Data reported in the Sourcebook is limited to felony and Class A misdemeanor cases for offenders who are convicted and sentenced under the guidelines in the federal court system. http://isb.ussc.gov/Login

APRIL 2014

PAGE 5

ignored and the district court sentenced Mr. Ortiz-Vega to 108 months on the drug charge, even though he did not cooperate. The government failed to object, seek resentencing, or appeal within the relevant time periods. The Third Circuit has previously held that Amendment 750 to the Sentencing Guidelines superseded United States v. Doe, 564 F.3d 305 (3d Cir. 2009), and allows for crack offenders who were sentenced below their mandatory minimum sentences for substantial assistance to move for a sentence reduction under 18 U.S.C. § 3582(c)(2). United States v. Savani, 733 F.3d 56 (3d Cir. 2013). The Third Circuit held that Ortiz-Vega is also eligible to seek a sentence reduction under 18 U.S.C. § 3582© based on the now-lower crack cocaine guideline range made retroactive under Amendment 759 to the Sentencing Guidelines. This is because his sentence was “based on” a guideline range that has now been lowered, even though he should have been subject to a mandatory minimum sentence. During § 3582(c)(2) proceedings, the court may not revisit or re-decide guideline applications, it must work only with the sentence actually imposed. This principle applies equally when a mistake was made in the defendant’s favor. Incomplete Counterfeit Bills / U.S.S.G. § 2B5.1 / Reasonableness of Sentence United States v. Woronowicz, --- F.3d ---, 2014 U.S. App. LEXIS 4596 (3d Cir. Mar. 12, 2014). Incomplete counterfeit bills count as “counterfeit items” and must be counted in calculating the total face value of the counterfeit items when the district court applies the sentencing enhancement at U.S.S.G. § 2B5.1(b)(1). The Court also affirmed the sentence as both procedurally and substantively reasonable. In particular, the district court considered the large number of incomplete bills and varied downward two levels to account for the fact that the U.S.S.G. § 2B5.1(b)(1) enhancement may have overstated the actual or intended loss. Alleyne v. United States / Retroactivity of Constitutional Rules of Law United States v. Winkleman, --- F.3d ---, 2014 U.S. App. LEXIS (3d Cir. Mar. 26, 2014). The Winkleman brothers filed motions in the Third Circuit requesting that it recall its mandate and reinstate their direct appeals so they could try to seek relief under Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). Alleyne held that “any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury” and proved beyond a reasonable doubt. The Court construed the motions as successive collateral attacks on the Winklemans’ convictions and sentences under 28 U.S.C. § 2255. A second or successive § 2255 petition is only authorized if it is based on newly discovered evidence or a new rule of constitutional law, “made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Even if Alleyne announced a new rule of law, the Supreme Court has not made it retroactive to cases on collateral review. It is not a new substantive rule that places certain private activity beyond the reach of the criminal laws and it is not a watershed rule of criminal procedure that alters “our understanding of the bedrock procedural elements” of the adjudicatory process.

Recent 3dCir Cases continued from Page 4

DEFENSE LINK

Leigh M. Skipper, Chief Federal Defender

Helen Marino, First Assistant Federal Defender Kai Scott, Chief, Trial Unit

Nina Carpiniello Spizer, Assistant Chief, Trial Unit Brett Sweitzer, Chief of Appeals

Federal Community Defender Office

For the Eastern District of Pennsylvania Suite 540 West – The Curtis Center

601 Walnut Street Philadelphia, PA 19106 Phone (215) 928-1100

WANT MORE?

VISIT OUR WEBSITE AT HTTP://PAE.FD.ORG AND THE THIRD CIRCUIT BLOG AT WWW.CIRCUIT3.BLOGSPOT.COM

Contact Jennifer Herman if

you have a new email address, office address, or telephone number, for any CJA Panel related questions, or if you wish to withdraw from the CJA Panel for the EDPA.

Jennifer_Nimmons_Herman

@fd.org

RECENT THIRD CIRCUIT CONTINUES ON PAGE 11

APRIL 2014

PAGE 6