Race and
Ethnic Fairness
State:
Committee/Report Name: Report of the Alaska Supreme Court Advisory Committee on
Fairness and Access, 1997; In 1995, a group of judges and
administrators from the Alaska Court System attended a national conference on
Eliminating Race and Ethnic Bias in the Courts, sponsored by the State Justice
Institute. Following this conference, the Alaska Supreme Court appointed the
Advisory Committee on Fairness and Access to identify concerns about racial and
ethnic bias in the state court system and make recommendations. The Fairness
and Access Committee enlisted many community members and court employees to
serve on a broad range of topics. This report is intended to assist the Alaska
Supreme Court in addressing those concerns.
Number of Members: 8 Task Force Members
Number of Subcommittees: 6
Subcommittees with non-committee members:
1. Consumer/User
2. Court as Employer
3. Disparate Confinement of Adults
and Youth
4. Jury Composition
5. Language and Culture
6. Rural Access
Chair/Co-Chairs:
Justice Jay A. Rabinowitz,
Methods Used: The committee held public hearings
in nine locations, conducted five radio call-in shows, and spoke at various statewide
meetings. Through letters and telephone interviews, the committee contacted
several hundred community groups and individuals likely to know of complaints
about the court system.
Topics
and Recommendations
Perception
Findings
1. Many residents
see the court system as a remote, intimidating and unfathomable institution.
This problem is particularly acute for ethnic and cultural minorities.
2. A
significant number of people believe that the justice system is unfair to
members of minority groups, particularly in criminal and children’s cases. This
perception undermines the effectiveness of the court’s work.
3. Little accurate information exists about the
justice system in general and the courts in particular.
Recommendations
1. The
Access
Findings
1.
2. The courts
serve a significant number of people who do not speak English well enough to
understand court publications, forms, or in-court proceedings.
3. The
4. Published
studies of task forces and commissions in other states have documented
significant breakdowns in due process and equal protection for non-English
speaking litigants who appear before the courts.
5. The
6. Competent court interpreters must have
training in ethics, language and law in addition to bilingual ability.
Recommendations
1. The
2. The
3. Law
enforcement officers, lawyers, and juvenile intake personnel should receive
training in the need for and use of interpreters in criminal and civil
proceedings.
4. State
agencies should work with the Alaska Court System to determine the most
efficient way to hire and pay for interpreters in civil and criminal
proceedings.
5. The
6. The
7. The
Findings
1. The
2. Many people in all parts of the state wanted
the court to work more closely with local dispute resolution organizations,
tribal courts and councils, and to actively help communities solve their
problems with justice delivery.
Recommendations
1. The
2. Judges
should inform non-citizens of the collateral consequences of a criminal
conviction, including deportation.
3. The
4. Judges
should be familiar with the different cultural groups within their venue
districts.
5. Judges
should work with local governments and organizations in their venue districts
that can or do serve the justice system.
6. The
Recommendations
1. The
Findings
1. Urban
residents have far more access to justice system services than village residents.
One fourth of Alaskans do not live within reasonable reach of many court system
services.
2.
Recommendations
1. Judges and
Alaska Court System personnel should encourage the scheduling of hearings,
trials, and dispositions in local communities, within the Alaska Court System’s
fiscal constraints.
2. The court
system should explore the idea of a circuit riding judge or judges to serve rural/village
areas as needed.
3. The court
system should appoint special masters to serve rural areas not served by
superior or district court judges.
4. The
5. The
6. The court
system should create a liaison position within the court system to work with
local agencies and maximize the use of village resources throughout the state.
7. The
8. The state should pay for telephonic court
hearings in matters involving indigent clients and Indian Child Welfare Act
cases.
Juries
Findings
1. The
2. The
3. A
substantial number of citizens do not respond to the jury questionnaire on the
first mailing. Jury clerks review the questionnaires to determine which
citizens qualify to serve and which should be excused. The qualified jurors are
placed on the venire list.
4. In most of
the state’s larger communities, the summons goes out with the qualification
questionnaire. The summons asks prospective jurors either to report to the
court on a particular day for jury duty, or to call the court for reporting
information. A substantial number of the jurors summoned to appear for jury
service do not appear. How the jury clerks respond depends largely on the
judge: some call the missing juror, some issue an order to show cause
(sometimes followed by a fine), some add time to the person’s jury service, some issue bench warrants as a last resort. Other clerks do
not follow up at all, because they do not have the time, the visiting judge has
left town after the trial, or the clerks believe that it doesn’t matter as long
as enough people are available to choose a jury. Because of this non-compliance
and leniency, jury clerks must call considerably more people than they can use
to assure that the court can empanel a jury. This overcalling increases the
burden of service on those who respond.
5. Failure to
enforce jury summonses may change the ethnic composition of the jury pool. Data
suggests the possibility that members of some ethnic groups do not respond to
the summons for jury service in some communities at the same rate as other
ethnic groups.
6. In
7. In 1994,
the legislature increased the number of peremptory challenges the prosecution
receives in felony trials from six to ten, equal to the number available to the
defense. Several judges observed that increasing the number of peremptory
challenges has increased both the time needed to choose a jury and the number
of prospective jurors the court must call.
8. Citizens find significant disincentives to
jury service. Many prospective jurors anticipated employment problems if
called.
Recommendations
1. The
Administrative Director of the Alaska Court System and the presiding judge in
each judicial district should identify ways to include as many residents as
possible in the jury pool.
2. The
3. To decrease
the number of prospective jurors called but not used, the Alaska Court System
should ask the Alaska Legislature to decrease the number of peremptory
challenges available to the parties in criminal cases to the number provided by
the law before it was amended in 1994.
4. The
5.
6. The
7. The
8. The
Findings
1. After
receiving the summons, the prospective jurors must remain available for jury service
for a specified length of time, calling in periodically to see if the court
needs their services. The length of time summonsed jurors must remain available
depends on the number of qualified jurors in the community. For large
communities with master venire lists over 7,000, the maximum term of
availability is 30 consecutive days; for mid-size communities with a master
venire list between 2,000 and 7,000 jurors must report for 90 days; for smaller
communities, the jurors must remain available for a year. Because trials are
not often held in the smallest towns, the heaviest burden of service falls on
citizens and employers in mid sized communities. Several member of the public
commented that jurors and their employer had great difficulty panning around a
possible call from the court for three months at a time.
2. It is the observation of the subcommittee and
of each of its members that unconscious race bias on the part of jurors
influences juror decisions.
Recommendations
1. The
2. The
3. The
Courtroom Experience
Quality of
Legal Representation
Findings
1. Rural residents do not receive adequate legal
representation in civil or criminal cases.
Recommendations
1. The
Education
Findings
1. Judges
and court system personnel do not receive regular cross-cultural training about
ethnic and cultural groups living or working in their area. (See also
Education: Court Staff, Finding #1)
Recommendations
1. The
Findings
1. Judges and
court system personnel do not receive regular cross-cultural training about
ethnic and cultural groups living or working in their area. (See also
Education: Judges, Finding #1)
2. Community and customer comments suggest that
court system personnel at all levels lack understanding of and sensitivity to
persons of different cultures.
Recommendations
1. The
Recommendations
1. The Chief
Justice should establish a standing public education committee to educate the
public about the legal system and should encourage judges to educate their communities.
Other state justice agencies should encourage their personnel to speak at
community meetings and in local forums.
2. The
3. The
4. The
Criminal Justice
Findings
1. Although different groups have reviewed
criminal sentencing periodically for evidence of disparity, other areas have
gone unexamined. No recent studies have set out to determine whether legitimate
differences in offender or offense characteristics justify observed disparities
in bail, probation conditions, and probation revocations. (See also Measurement
and Evaluation, Finding #1)
Findings
1. The state does not provide enough supervision
and treatment services in rural areas. The state has few treatment programs
designed for minority offenders.
Recommendations
1. The Department
of Corrections should provide programs allowing for culturally relevant and
locally available sentencing options for minority defendants.
2. To the
maximum extent possible, the Department of Corrections should provide programs
allowing for halfway houses, intermediate sanctions, rehabilitation programs,
and other services in every superior and district court location.
3. The
4. Native
communities, through their corporations, nonprofits, and foundations, should
develop culturally relevant rehabilitation programs and address social
pathologies within their communities.
5. The
6. The state should offer more sentencing and
revocation options in rural areas and should expand the range of culturally
appropriate treatment options for different ethnic groups in urban areas.
Findings
1. Alaska
Natives, African Americans, and Hispanics make up a disproportionately high
share of the prison population.
2. The amount
of disproportional varies by type of crime and ethnicity.
3. A number of
factors contribute to the different rate of incarceration for the same type of
crime.
a. Prior
record- Alaska Natives convicted of felonies are more
likely to have a prior felony record than either Caucasian or African American
felony defendants. The three groups have comparable misdemeanor records. A
felony prior record subjects the offender to presumptive sentencing, typically
resulting in longer sentences with no discretionary parole.
b. Alcohol
use- The abuse of alcohol and the commission of criminal offenses in
c. Differences
in pleading guilty- Alaska Native ethics of non-confrontation and truth-telling
can lead to guilty or no-contest pleas based on incomplete understanding of the
defendant’s rights and options, particularly in misdemeanor cases. A number of
public comments noted that Alaska Natives may plead guilty more often because
they do not understand the meaning of a guilty plea.
d. Lack of
alternatives to incarceration- Rural areas have fewer
treatment programs, probation services, and alternatives to incarceration. A
large percentage or rural probationers and parolees—the vast majority of them
Alaska Natives live in communities with no resident probation officer.
4. Many people
believe that the courts sentence Native and other minority defendants in ways
that work at cross-purposes with the defendants’ cultural norms.
Disproportionate numbers of probation and parole revocations for Native and
African American offenders may show that the conditions imposed have little
meaning for those offenders, and present practical conflicts with the
defendants’ culture.
5. Judges almost always grant probation
revocation petitions and typically impose some additional incarceration.
Court as employer/appointer
Findings
1. Too few
minorities are employed by the Alaska Court System, particularly at the management
level. The court system should improve its affirmative action plan and employee
development efforts.
2. The
perception of unfairness derives in part from ethnic and cultural differences
between justice system personnel and those brought into the justice system
involuntarily. At nearly every level of every justice agency, employees are
more likely to be white than the general population, although some agencies can
point to exceptions at lower levels of employment.
3. Discriminatory
employment practices in the past have foreclosed economic opportunity to a
substantial number of persons in the
4. Many public
comments noted that most court employees are white while many litigants are
not, particularly in criminal and children’s cases. Several respondents said
that this situation leads to feelings of mistrust, intimidation, and avoidance.
This situation perpetuates itself, because some minority group members,
particularly Alaska Natives and Asians, view the court system as an unfriendly
place to work and apply for jobs less frequently as a result.
5. The
6. The court as employer subcommittee conducted
a survey of court employees to ask how the court values different groups of
employees, how well it trains employees, how fair its employment policies are,
and how well it deals with bilingual employees and situations. The subcommittee
also conducted a four hour group interview with nine volunteer court employees
to discuss similar issues. Employees responding to survey questions believed
that judges and magistrates had more training and professional development
opportunities than did clerical and support staff. Court staff asked for more
professional development and cross training to enhance job performance and
promotional opportunities.
Recommendations
1. The
2. The
3. The
4. The
5. The
6. The
7. The
8. The
Findings
1. Native Alaskan
and African American youths are more frequently referred by the police on
juvenile delinquency matters and more frequently institutionalized.
2. Police
request pre-adjudicatory detention of African American youth at a
disproportionately high rate compared to other ethnic groups.
3. Minority
youth are held in detention for longer periods of time than non-minority
juveniles.
4. A recent
University of Alaska Justice Center study of minority youth in the justice
system found that race is significantly associated with DFYS (Division of
Family and Youth Services) intake decisions.
5. Native
Alaskan and African American youths are more likely to have a prior record or
referrals. The
6. Without
going to court, DFYS intake workers can place youths on informal probation,
requiring them to perform certain conditions to stay out of trouble.
Disproportionately few Alaska Native youths receive informal probation. DFYS
staff hypothesized that the disproportionately high number of Native youth
referred for alcohol and substance abuse offenses may cause the lower informal
probation rates. They reasoned that informal probation lasts for only six
months, too short a period for most substance abuse treatment.
7. The
judicial disposition in juvenile delinquency cases is generally not associated
with race.
8. State law
requires that any 16- or 17-year old charged with an unclassified or Class A
felony be prosecuted as an adult; juvenile court jurisdiction is automatically
waived. If convicted of at least a Class A felony, the youth will serve the
sentence in an adult prison. Individual case information suggests that
automatic juvenile waiter may have more severe effects on minority youth and
that the prosecutor’s charging decision that leads to an automatic waiver may
be applied on racial grounds.
9. Juvenile treatment programs and detention
facilities exist primarily in larger urban areas.
Recommendations
1. Each state
agency involved in Child in Need of Aid proceedings should ensure that the
procedures used to resolve those cases do not have an unjustifiably disparate
impact on children of ethnic minorities.
2. The
3. The
Division of Family and Youth Services should increase the opportunities for
local institutionalization, supervision, and rehabilitation in rural areas.
4. The state should increase sentencing
alternatives for youth.
Findings
1. Employees have used the court’s system’s formal
grievance procedure only ten times in the last three years. Comments from
employees suggested that they did not understand or trust the formal grievance
procedure and feared that supervisors would label them confrontational if they
filed grievances. However, employees use the informal grievance process more
frequently. Minority employees perceived the grievance process as potentially
unfair.
Recommendations
1. The
Findings
1. Although different groups have reviewed
criminal sentencing periodically for evidence of disparity, other areas have
gone unexamined. No recent studies have set out to determine whether legitimate
differences in offender or offense characteristics justify observed disparities
in bail, probation conditions, and probation revocations. (See also Criminal
Justice: Pretrial, Finding #1)
Recommendations
1. The
2. The
3. The
4. The
5. The
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