Updated: Implicit Bias Bill Package Advances in the California Legislature

Update (Sept. 2019)

We are delighted to share that two of the three bills we helped draft – AB 241 and AB 242 – are now on the Governor’s desk! California is very close to becoming the first state in the nation to require implicit bias training for all judges, attorneys, and healthcare professionals. Please sign this letter and remind Governor Newsom that now is the time to tackle racial disparities in access to justice and healthcare – http://bit.ly/2lZV2rM.

Update (July 8, 2019)

AB 241 just passed the Senate Committee on Business, Professions and Economic Development with bipartisan support. All three of our implicit bias bills are now in Senate Appropriations. We applaud legislators who are making public statements about the need to address systemic bias and racial disparities, and we will continue to advocate that those statements be backed with actions.

Update (June 26, 2019)

Yesterday, the Senate Public Safety Committee voted overwhelmingly in favor of AB 243, which mandates that all police officers in the state receive biannual implicit bias training and testing. Similarly, the Senate Judiciary Committee voted in favor of AB 242, which calls for implicit bias training for judges and court personnel. Both bills are now in Senate Appropriations. Our last bill—AB 241, which makes implicit bias training mandatory for all healthcare professionals in the state—will be heard in the Senate Committee on Business, Professions and Economic Development on July 8th. Thank you to all of you who sent letters of support! Together we can make history.

Update (May 21, 2019)

Original Post

By Yoana Tchoukleva, EJS Judge Constance Baker Motley Civil Rights Fellow

Tuesday was a monumental day for Equal Justice Society. Three bills that we worked on with Assemblymember Sydney Kamlager-Dove (D-Los Angeles), the bills’ author, passed their respective policy committees in the Assembly.

The truths that EJS has been speaking for the last 20 years were echoed in the halls of the California Legislature—we all have implicit bias, bias contributes to staggering disparities in life outcomes, we will never achieve justice as a society until we address the pernicious effects of implicit bias in every one of our institutions.

Assemblymember Kamlager-Dove decided to first tackle those institutions that have the most power to shape lives, sometimes with lethal consequences: policing, healthcare and the courts. The three bills in her B.I.A.S. (Breaking Implicit Attitudes & Stereotypes) package make implicit bias training and testing mandatory for all law enforcement officers (AB 243), medical professionals (AB 241), judges[1] and court personnel in the state (AB 242).

Critically, the bills include language championed by EJS that situates the forms of implicit bias most prevalent in the United States in the history and social stereotypes of this country.

The Legislature finds and declares all of the following:

(a) All persons possess implicit or unconscious biases that affect their beliefs, attitudes, and actions toward other people.

(b) Those biases develop over the course of a lifetime, beginning at a very early age, through exposure to messages about groups of people that are either socially advantaged or disadvantaged.

(c) In the United States, studies show most people hold an implicit bias that disfavors African Americans and favors Caucasian Americans, resulting from a long history of subjugation and exploitation of people of African descent.

(d) People also hold negative biases toward members of other socially stigmatized groups, such as Native Americans, immigrants, women, people with disabilities, Muslims, and members of the LGBTQ community.

Implicit racial bias is centered in each bill because of its pervasive influence on American life. From the founding of this country, race has been the defining characteristic of who has access to power and who does not.

Even though the practice of slavery has ended, Native Americans are no longer directly massacred by the state, and discrimination against people of color on the basis of race is outlawed, the social stereotypes that developed as a result of these practices persist.[2]

Early in childhood, these stereotypes get internalized and become implicit or unconscious associations.[3] Today, 70 to 87 percent of White Americans nationwide demonstrate implicit bias against Black Americans on the Implicit Association Test,[4] even when they consciously espouse egalitarian views.[5]

As Assemblymember Ash Kalra (D-San Jose) aptly remarked at Monday’s press conference, “Implicit bias is a human thing. Racial bias is certainly an American thing.”

Law enforcement officers, medical professionals, judges and court personnel are not exempt from bias. Studies show they possess the same level of implicit bias against Black Americans as do most other adults. [6]

As EJS Counsel Lisa Holder mentioned in her testimony before the Assembly Public Safety Committee on Tuesday, “police officers, just like civilians, are consistently more likely to associate Black faces with criminality,[7] to misidentify common objects as weapons after being shown photos of Black faces, and to label photos of Black people as threatening.”[8]

All three bills describe the staggering racial disparities in access to health, safety and justice that result from the biases of decision-makers who have not received proper implicit bias training. Research shows that police stop Black citizens more than Whites,[9] judges give Black defendants longer sentences than Whites convicted of similar crimes,[10] and physicians prescribe Black patients less pain medication than White patients who present the same symptoms.[11]

The implicit bias training that the B.I.A.S. package requires will give law enforcement officers, medical professionals, judges and court personnel the tools they need to begin understanding and overriding or interrupting their biases. In a blame-free environment, they will learn what biases they themselves hold and what strategies they can use to reduce the impact of those biases on their personal and professional decisions. They will look at their institutions through the lens of systemic implicit bias[12] and discuss how to make these institutions more just and equitable. Specifically:

AB 241 amends the Business and Professions Code to:

  • Ensure all continuing education courses for physicians and surgeons include curriculum on implicit bias and bias-reducing strategies;
  • Require the Board of Registered Nursing and the Physician Assistant Board to adopt regulations mandating implicit bias training for all nurses and physician assistants.

AB 242 amends the Government Code, as well as the Business and Professions Code, to:

  • Authorize the Judicial Council to develop implicit bias training for judges that meets specific content requirements;
  • Require all clerks and court personnel to participate in two hours of implicit bias training every two years;
  • Require the State Bar to make completion of implicit bias training a requirement of continuing legal education for all attorneys in the state.

AB 243 amends Section 13519.4 of the Penal Code to:

  • Add implicit bias training and testing to the already existing training officers are required to take for elimination of racial and identity profiling;
  • Require that all officers in the state complete this expanded training, now with an implicit bias component, every two years, rather than every five as under existing law.

EJS is deeply grateful to Assemblywoman Sydney Kamlager-Dove for her leadership in authoring these groundbreaking bills and for inviting our input in shaping them. EJS also thanks Assemblymembers Bonta, Gonzalez, Jones-Sawyer, Kalra, McCarty, Levine, Weber, Wicks, as well as Senators Mitchell, Skinner, Wiener, for their co-authorship and support. Lastly, EJS recognizes and thanks Kimberly Papillon, nationally renowned expert on bias in decision-making, and Demarris Evans, Co-Chair of the San Francisco Public Defender’s Racial Justice Committee, for their thought-partnership and vision.

Currently in Appropriations, the three bills will need a lot more support to become law. We welcome input from practitioners, academics and community members as we at EJS do our best to advance the strongest legislation possible. Only by shining a light on implicit bias and collectively working on minimizing the harm it causes, do we stand a chance of one day realizing the dream of equality and justice for all.

[1] The Legislature cannot mandate that judges take certain courses. See Cal. Const. art. III, Section 3. But it can encourage the Judicial Council to develop courses that judges can choose to take as part of their continuing education requirements. We are advocating that the implicit bias training is included in the legal ethics course that nearly all judges take statewide.

[2] See also Cheryl Staats, State of the Science Implicit Bias Review 2013, The Ohio State University Kirwan Institute for the Study of Race and Ethnicity (2013), at *45, http://kirwaninstitute.osu.edu/docs/SOTS-Implicit_Bias.pdf (Black Americans are stereotyped as criminal, violent, poor, lazy and unintelligent.).

[3] See Baron AS, Banaji MR, The development of implicit attitudes: Evidence of race evaluations from ages 6 and 10 and adulthood. 2006 17(1) Psychological Science 53-8.

[4] Kimberly Papillon, Esq., The Hard Science of Civil Rights: How Neuroscience Changes the Conversation, Equal Justice Society, available at https://equaljusticesociety.org/law/implicitbias/primer/.

[5] In a research study involving 700,000 participants, the most frequent answer to the question, “Who do you prefer, black people or white people?” was “I have no preference.” In that study, 70% of participants showed a preference for White people over Black people on the Implicit Association Test, a test that measures one’s level of implicit bias. See Henri Tejfel, Experiments in Intergroup Discrimination, 223 Sci. Am. 96 (1970).

[6] See, e.g., Andrew J. Wistrich & Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, in Ensuring Justice: Reducing Bias 87 (Sarah Redfield ed., forthcoming 2017), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2934295. See also Alexander Green, et al., Implicit Bias Among Physicians and its Prediction of Thrombolysis Decisions for Black and White Patients, Society of General Internal Medicine, June 27, 2007, available at https://equaljusticesociety.app.box.com/s/pozxz81pk5k3kalxsmg1vol00xsaysb5.

[7] Kurt Hugenberg and Galen V. Bodenhausen, Facing Prejudice: Implicit Prejudice and the Perception of Facial Threat, J. of Psych. Science, available at https://doi.org/10.1046/j.0956-7976.2003.psci_1478.x.

[8] B. Keith Payne, Prejudice and Perception: The Role of Automatic and Controlled Processes in Misperceiving a Weapon, 81 J. of Personality and S. Psych. 181-192, available at http://web.missouri.edu/~segerti/capstone/PayneBias.pdf.

[9] Lynn Langton, Ph.D., Matthew R. Durose, Police Behavior during Traffic and Street Stops, 2011, Bureau of Justice Statistics, available at https://www.bjs.gov/index.cfm?ty=pbdetail&iid=4779.

[10] Emily Owens, et al., Examining Racial Disparities in Criminal Case Outcomes Among Indigent Defendants in San Francisco, Quattrone Center, available at https://www.law.upenn.edu/live/files/6792-examining-racial-disparities-may-2017-summary.

[11] Kelly M. Hoffman, et al., Racial Bias in Pain Assessment and Treatment Recommendations, and False Beliefs About Biological Differences Between Blacks and Whites, Proceedings of the National Academy of Science of the United States of America, April 4, 2016, available at https://www.pnas.org/content/113/16/4296.abstract.

[12] Justin D. Levinson & Robert J. Smith, Systemic Implicit Bias, 126 YALE L.J. F. 406 (2017), available at http://www.yalelawjournal.org/forum/systemic-implicit-bias.

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