Excerpted From: Cherron Payne, All Cases Matter: Mitigating Bias in the Administrative Law Judiciary, 43 Journal of the National Association of Administrative Law Judiciary 1 (Spring, 2023) (242 Footnotes) (Full Document)


CherronPayneImagine sitting in a courtroom or tribunal, filled with trepidation, because your freedom, livelihood, or well-being are at stake. While hoping that the evidence will positively support your position, and the correct application of law will bolster your case, you peer at the jury and notice there is no one who looks like you or could represent or understand your interests. You also realize that you are being ignored by your attorney and patronized by the judge due to your gender, race, socioeconomic status, religion, sexual orientation, ethnicity, nationality, or other social categorization. As you conceptualize the reality of your surroundings, you start to ponder whether justice is real or just a cliché used to peripherally describe legal proceedings. At this juncture, you look to the judge as the last chance for fairness, because you know that judges are charged with administering impartiality and behaving as paragons of justice. However, you realize that your interests are being dismissed by the judge as well. This epiphany reveals to you that justice may not always be blind, and impartiality and fairness are not always distributed due to explicit or implicit bias.

Judges, as architects of justice, are constitutionally ordained and ethically bound to conduct fair and impartial hearings to ensure the administration of justice. Rule 2.2 of the Model Code of Judicial Conduct mandates, “[a] judge shall perform the duties of judicial office impartially, competently, and diligently.” Thus, judges must identify and eradicate obstacles or judicial barriers that may inhibit the administration of justice to litigants. However, bias in juridical proceedings threatens the distribution of justice because it breaches judicial impartiality and impedes fairness. Pursuant to Rule 2.3 of the Model Code of Judicial Conduct, “[a] judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.”

Bias, a partiality in favor of or against a group of people, compromises the integrity of judicial proceedings and remains a concern for the judiciary and the public it serves. Although literature previously documents the exhibition of bias in the courts, there is a literature gap regarding how bias specifically affects the administrative law judiciary. Within the administrative law judiciary, bias is a concern because administrative tribunals are often afforded fewer resources than judges within the judicial branch, creating the potential for increased bias due to resource needs and safety concerns. The administrative law judiciary must also be cognizant of bias because decisions are made solely by the administrative law judge; there is often no jury to counterbalance possible biases. Moreover, as an adjudicatory alternative to the courts, administrative tribunals may attract a substantial population of pro se parties; thus, increasing the diversity of the population it serves. As a result, there is a concrete need for the administrative law judiciary to comprehend, examine, and mitigate bias as a mode of counteracting partiality in tribunal proceedings.

Part II of this article explores the issue of bias and the underlying factors that configure bias, such as attitude, stereotype, and prejudice. Part II also examines the two principal types of bias, explicit bias and implicit bias, and defines common subsets of bias, such as gender bias. Part III presents implicit bias as an unconscious, utilitarian, and neuroscientific mechanism. Part III examines the neuroscience of decision-making and the neural structures that influence and regulate decision-making processes. Part III also discusses emotion as an underpinning to decision-making and the role of emotion in implicit bias. Furthermore, the amygdala in the brain will be examined regarding its critical role in mediating emotion, fear, and the generation of implicit bias. Part IV discusses the individualized or personal factors that influence bias. This section also illustrates systematic factors that may elicit bias, such as diminished resources in administrative tribunals. Part V addresses the administrative law judiciary's susceptibility to bias due to systemic factors, such as resource allocation. This section also discusses the typical resource allocation in the administrative law judiciary and how diminished resources affect decision-making and fuel bias. Section V also presents a Connecticut case study examining the lived experiences of judges as an empirical basis to support the nexus between resource allocation and bias. Part VI introduces the 4-D deflate, debias, defend, and data approach as a paradigm for mitigating bias, along with a description of practical methods of mitigating bias in the judiciary. Part VII concludes this article by underscoring the need for bias mitigation and impartial administrative hearings.

[. . .]

As custodians of justice, judges must work to ensure impartiality and fairness by developing and implementing effective ways to mitigate bias. Specifically, the administrative law judiciary must be cognizant of its susceptibility to bias due to resource limitations that are pertinent to the administrative tribunal, while diligently working to counteract implicit bias.

However, bias is not a concern that is solely germane to the administrative law judiciary. All judges should be aware of bias and work to prevent it. To effectuate this change, it is recommended that judges initially take the Implicit Association Test or a similar assessment, to gauge their individual biases. After personal biases have been identified, it is imperative that all judges undergo bias training. Specifically, annual bias training should be mandated as a requirement to serve as judges. National judicial organizations and councils should work with state and federal judiciaries to mandate annual bias training or certification. After undergoing training, judges should test recommended mitigation techniques and adopt a methodology that effectively works for them.

Mandated bias training is particularly important to the administrative law judiciary because this cadre of judges is deemed as the face of the government. Administrative law judges render decisions and formulate administrative precedents that affect a spectrum of legal areas, a diversity of people, and a volume of pro se parties. As the face of the government, the administrative law judiciary must work to be a paragon of justice and the frontispiece for eradicating implicit bias in legal proceedings. Administrative law judges must exhibit focus, willingness, and even courage to combat bias and safeguard the administrative process's integrity. Mitigating bias and promulgating fairness and impartiality will ensure that all cases matter.

The Honorable Cherron Payne is the recipient of the 2022 National Administrative Law Judiciary Foundation Fellowship Award. Dr. Payne is the chief administrative law judge (referee) for the Office of Public Hearings at the Commission on Human Rights and Opportunities in Hartford, CT, and the former president of the Connecticut Magistrates Association.