In the wake of the "Brexit" vote for Great Britain to leave the European Union, the country has seen an unprecedented increase in xenophobic sentiments, with reports pointing out anti-immigrant leaflets, racially motivated crimes, and comments on the street. Across the pond, the U.S. has seen a similar rise in anti-hispanic and anti-muslim attacks and even murders, drawing inspiration according to some reports from the rhetoric of GOP nominee, Donald Trump. In both the U.K. and the U.S., it is highly likely that the views were already there long before Trump or the "Leave" campaign tapped into them. So it is not so much that the U.S. presidential contest or the "Brexit" campaign caused those feelings, as it is that they disinhibited expressions of those feelings. "Disinhibition" refers to the temporary and situational weakening of social constraints against something. So the British or American xenophobes had, in effect, been thinking, "I have this hate, but society demands that I hide it, so I will...But wait, it seems to be gaining a mainstream respectability lately, and prominent people are giving voice to the same views, so I am going to be more comfortable in letting it out."
While the "Brexit" and "Trump" effects are specific to racism, it is likely that many other biases work in the same way. Biases exist to a greater or lesser degree across large parts of the population, but are more manifest under conditions that disinhibit that bias. Jurors who carry a bias against large corporations, for example, might try to suppress that feeling and treat all parties as equal under the law, unless it seems like everyone else is also biased against the company, and then the leash is off! Litigators and consultants need to be students of bias, focusing not only on what bias is and where to find it, but also focusing on what leads to it being either suppressed or expressed. In this post, I will share some thoughts and research on disinhibition and what it means to deliberating jurors.
Disinhibition is a well-known and well-studied phenomenon in social science. In the rest of the world, good old alcohol is probably the best-known disinhibiter:
"You can definitely dance!"
But even without chemical aid, situational changes can also serve as powerful disinhibiters. For example, anyone who has read a "comments" section on the internet knows that computer-mediated communication disinhibits aggressive or insulting communication. Copying others within our own social groups does the same thing. The more an attitude or behavior is normalized, the lower the inhibitions to engaging in it. What made overtly racist sentiments and actions more acceptable post "Brexit" and Trump, is just the fact that more people seem to be accepting it.
Disinhibition in a Jury Context
A recent Washington Post story is entitled, "How Big of a Difference Does an All-White Jury Make? A Leading Expert Explains." The leading expert is Dr. Patrick Bayer, Professor of Economics at Duke University, who has conducted research focused on discrimination in banking and housing. In an interview with the Post, he describes one of his studies (Anwar, Bayer & Hjalmarsson, 2012) which focused on the effects of all-white juries over a 10-year period. The research looked at Florida counties with relatively modest African American populations: counties where there should be at least some African Americans on the jury, but where it was also possible that there would be none.
Then Bayer asked, "What is different when there are no black jurors?" It turns out, a lot. In cases with no black members on the jury, black defendants were convicted 81 percent of the time, compared to white defendants who were convicted 66 percent of the time. But when the jury included at least one black person, the conviction rates for black defendants (71 percent) was statistically indistinguishable from the conviction rate for white defendants (73 percent). In other words, any amount of diversity seems to have removed the bias toward greater conviction rates for black defendants.
While Bayer does not speculate about the reason, based on other research, the most likely explanation is that the bias against black defendants is normally inhibited, but can be disinhibited in the absence of black jurors. This adds to the finding we have noted in previous posts that diverse groups work better, with a number of studies showing they are more creative, more open-minded, more effective, and less biased.
The research on disinhibition of bias carries a few reminders for lawyers and consultants who work to discover and contain bias in the courtroom. Here are a couple:
1. It's not just the presence of bias, it's the likelihood of expression.
Litigators and consultants need to make sure they are focusing on the full spectrum of bias. They need to focus not only on attitudes that are held, but also on those factors that make a bias likely to be expressed. Curative instructions during voir dire (e.g., "You understand, don't you, that you are to base your decision only on the evidence, and not on any pre-existing beliefs...") are widely known to not really remove the bias. But they can be helpful in inhibiting its expression. If they are expressed, another juror in the panel is likely to say something like, "Remember, we aren't supposed to talk about that...."
2. Homogenous groups are more friendly to bias.
In some settings, however, that social constraint is likely to be weakened. The most favorable setting for expressions of bias is a setting where group members are more or less the same. In that homogenous setting, the proportion of ideas and experiences that are taken for granted is high, and the proportion that are questioned and challenged are low. It turns out that the jury ideal of a diverse group pulled from all walks of life, makes sense, not just for democratic representativeness, but for effective and less-biased decision making as well.