Washington State Sup. Court Cites Law Review Article by EJS

UPDATE: The Seattle Times published in op-ed by Eva Paterson in reaction to the Court’s decision in this case.

The Washington State Supreme Court recently cited a law review article on implicit bias co-authored in 2008 by Kimberly Thomas Rapp, Sara Jackson, and Eva Paterson. Kimberly was our Director of Law and Public Policy then, and Sara was our Staff Attorney at the time.

In its August 1, 2013, decision (PDF) in Washington v. Saintcalle, the Court asserted that the Batson procedures for challenging race discrimination in jury selection were not “robust enough,” since “a growing body of evidence shows that racial discrimination remains rampant in jury selection.”

The Batson procedures come from Batson v. Kentucky, a U.S. Supreme Court case that established what evidence is required for a trial judge to be able to draw an inference that discrimination has occurred in jury selection procedures.

The Court’s opinion cited our article, “The Id, the Ego, and Equal Protection in the 21st Century: Building upon Charles Lawrence’s Vision to Mount a Contemporary Challenge to the Intent Doctrine,” published in the May 2008 issue of the Connecticut Law Review (40 Conn. L. Rev. 1175).

This citation in a state Supreme Court opinion marks another important step in our efforts to educate the judiciary about implicit bias. It’s starting to pay off as courts acknowledge the significant and harmful role implicit bias plays in our criminal justice system.

While the Court did not create a new standard because the issue was not raised, briefed, or argued by the parties, the court did assert that “racism is often unintentional, institutional, or unconscious” and called for stronger Batson procedures to recognize these more prevalent forms of discrimination.

This affirms the work EJS is doing to raise consciousness about implicit bias, and we hope more attorneys will raise these issues in their cases so the courts will ultimately recognize the need for anti-discrimination laws that account for implicit and structural biases.