A Tool for Reducing Bias in Your Writing
COLUMN > Write to Counsel
BY AMANDA K. STEPHEN
In the wake of 2020’s racial reckoning after George Floyd’s murder, each of us has a responsibility to consider how our actions and words may affect historically marginalized communities and to take action to prevent bias and harm. One small way that we can do this is to reduce bias in our writing by choosing people-first terms over dehumanizing terms when describing individuals affected by our criminal law system.
Common legal terminology can be harmful and we, as attorneys, should work to make better choices to improve it. For example, in the media, describing a person as a “felon” or “criminal” is likely to increase the reader’s belief that the person is “dangerous,” “scary,” or a “serious criminal.”11 Brian Elderbroom, Felicity Rose, Zoë Towns, People First: The Use and Impact of Criminal Justice Labels in Media Coverage at 20-21 (June 22, 2021), www.fwd.us/wp-content/uploads/2021/06/PF_PDF_report_final.pdf. In contrast, when writers use people-first language, such as “person with a felony conviction” or “person convicted of a crime,” readers are more likely to think the individual “made a mistake” or “needs rehabilitation.”22 Id. Dehumanizing language can also affect the prospects of individuals who would benefit from improvements to the criminal law system: when terms like “felon” and “criminal” are used, readers are less likely to support reform for individuals impacted by this system.33 Id. at 27.
There is a resource that provides guidance for replacing common, dehumanizing words in our legal vocabulary: the Underground Scholars Initiative (USI) Language Guide (“the guide”).44 Michael Cerda-Jara, Steven Czifra, Abel Galindo, Joshua Mason, Christina Ricks, Azadeh Zohrabi, Language Guide: A Guide for Communicating About Those Involved in the Carceral System, Berkeley Underground Scholars (Mar. 6, 2019), https://undergroundscholars.berkeley.edu/blog/2019/3/6/language-guide-for-communicating-about-those-involved-in-the-carceral-system/. The guide was released in 2019 by the USI, a group of “formerly incarcerated and system-impacted academics” at the University of California, Berkeley. It offers substitutes for commonly used but harmful criminal law terms.
The guide is short, simply written, and easily accessible online. In about 1,500 words it describes why humanizing language is important and includes both a terminology guide of 15 terms and a topical guide for four related topics. Ever since a student introduced it to me, I have used it in my legal writing classroom as a tool to help students eliminate biased language from their writing.55 In May 2022, I wrote an article for legal writing professors about how to use the guide in the classroom. Amanda Stephen, “Using the Underground Scholars Language Guide to Help Eliminate Bias in Legal Writing,” The Second Draft (May 12, 2022), www.lwionline.org/article/using-underground-scholars-language-guide-help-eliminate-bias-legal-writing. It is equally useful to practicing attorneys who are looking for ways to decrease bias in their own writing.
This article introduces some of the terms in the guide and attempts to answer questions you might have about using the guide.
Putting the Guide into Action: Useful Terms
The guide is especially helpful because it not only gives suggestions for people-first terms, but it also describes why the term recognizes the humanity of the person being described over other, dehumanizing alternatives. Below are just a few of the useful terms proposed in the guide.
First, the guide suggests using “incarcerated person” to refer to anyone who is currently incarcerated because that term “makes no claim about guilt or innocence (contrary to words like ‘convict’), nor does it attach a permanent identity to an often temporary status (like ‘prisoner’ etc.).”66 Id. Similarly, the guide suggests using the term “formerly incarcerated person” to describe anyone who has been released after a period of incarceration. In comparison, terms like “ex-convict” or “ex-felon” are dehumanizing because “[a]ttaching the prefix ex- to anything … is a clear indication that it, and the root word itself, are unacceptable.”77 Id. Finally, the guide recommends describing individuals as “people convicted of drug violations” or “people convicted of violent offenses,” rather than using terms like “drug offenders” or “violent offenders.” The reason: such terms “reduce one’s identity to a particular type of conviction[.]”88 Id.
The guide also challenges use of the term “criminal justice system.” As an alternative, it suggests writers use the more accurate term “carceral system” because “[n]ot all who violate the law … are exposed to this system and justice is a relative term that most people in this country do not positively associate with our current model.”99 Id. And the guide warns against using phrases like “violent communities” and “bad/disadvantaged neighborhoods.” It explains that
“[l]abeling a community as ‘violent’ demonizes all people within it” and “places the burden of such a disparaging label on the community itself without highlighting the systemic factors that are necessary for a community to repeatedly experience such trauma.”1010 Id. To avoid such harm, the guide suggests the term “communities that experience high rates of violence.”1111 Id.
While the guide is focused on criminal law, it introduces terms that could be applied in other contexts, as well. For example, in the context of sexual assault, the guide cautions against describing people as victims. Instead, it suggests you describe the person as a “sexual assault survivor” because doing so acknowledges that experiencing such abuse and trauma does not make the person a “victim (a passive identity), but rather a survivor (an active identity).”1212 Id. And in place of describing a person’s use of alcohol and drugs as “abuse,” the guide encourages the simpler description of drug or alcohol “use.”1313 Id. The reason: using the term “abuser” dehumanizes marginalized populations who may use drugs to self-medicate because they “are denied meaningful access to local, culturally competent, and affordable mental health services[.]”1414 Id. Furthermore, “[t]he classification and prohibition of substances is political, not medical, and has always been a tool to police communities of color.”1515 Id.
Considerations for Using the Language Guide
Ready to start using the more inclusive terms in the language guide? Wonderful! If you still have questions, let me see if I can answer them here.
Aren’t these suggested terms less concise?
Yes, but using people-first language is worth adding a few words to your word count. Although the term “formerly incarcerated person” is less concise than the term “ex-convict,” you will likely only need to use such a description once within your brief or memo (if the description is necessary at all), minimizing the effect of the less concise but more humanizing description.
What if I want the reader to be biased against a particular individual?
For persuasive reasons, a lawyer might be tempted to use a dehumanizing term to describe an opposing party or other individual. But while that is a choice you can make, it is not necessarily a choice you should make. I push students to consider whether dehumanizing a legal opponent is consistent with the professional values they want to aspire to as an attorney, and I invite you to do the same.
Additionally, judges are typically more persuaded by a good legal argument than by name-calling and putting the other side down. Using terms that are dehumanizing to try to persuade a court is unlikely to gain you much ground and could even hurt your professional reputation if the judge thinks the term demonstrates bias.
Finally, Washington’s Rules of Professional Conduct may limit whether you can use bias strategically. For example, RPC 3.4(e) requires that, to be fair to the opposing party, a lawyer shall not “allude to any matter that the lawyer does not reasonably believe is relevant” in trial. And RPC 8.4(h) states that it is misconduct for a lawyer to engage in conduct toward other parties and witnesses that “a reasonable person would interpret as manifesting prejudice or bias” based on a protected classification. Therefore, tread with caution when considering whether to use bias to support your position.1616 For a discussion on the ethics of using implicit bias to support your position, see Laurel Currie Oates, Anne M. Enquist, Jeremy Francis, Just Briefs: Preparing for Practice §1.3 (4th ed. 2021).
Will readers understand these terms if I use them in a brief or memo?
This is a valid concern, but one that is easily fixed. For example, if you do not think the reader will know what the “carceral system” is, you can use a short parenthetical to describe the term or include a citation to the guide explaining it. I like to think of this as your opportunity to educate the reader to bring more humanizing and inclusive terms to our legal discourse.
Even if I have not yet convinced you to abandon “criminal justice system” in favor of “carceral system,” I hope I have you thinking about the fact that some of our legal system’s common terms are viewed and experienced by others in non-neutral and harmful ways. I encourage you to read the entire guide and do your part to try to eliminate bias in our legal vocabulary by using some of its terms in your next memo or brief.
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NOTES
1. Brian Elderbroom, Felicity Rose, Zoë Towns, People First: The Use and Impact of Criminal Justice Labels in Media Coverage at 20-21 (June 22, 2021), www.fwd.us/wp-content/uploads/2021/06/PF_PDF_report_final.pdf.
2. Id.
3. Id. at 27.
4. Michael Cerda-Jara, Steven Czifra, Abel Galindo, Joshua Mason, Christina Ricks, Azadeh Zohrabi, Language Guide: A Guide for Communicating About Those Involved in the Carceral System, Berkeley Underground Scholars (Mar. 6, 2019), https://undergroundscholars.berkeley.edu/blog/2019/3/6/language-guide-for-communicating-about-those-involved-in-the-carceral-system/.
5. In May 2022, I wrote an article for legal writing professors about how to use the guide in the classroom. Amanda Stephen, “Using the Underground Scholars Language Guide to Help Eliminate Bias in Legal Writing,” The Second Draft (May 12, 2022), www.lwionline.org/article/using-underground-scholars-language-guide-help-eliminate-bias-legal-writing.
6. Id.
7. Id.
8. Id.
9. Id.
10. Id.
11. Id.
12. Id.
13. Id.
14. Id.
15. Id.
16. For a discussion on the ethics of using implicit bias to support your position, see Laurel Currie Oates, Anne M. Enquist, Jeremy Francis, Just Briefs: Preparing for Practice §1.3 (4th ed. 2021).