Race and Ethnic Fairness
State:
Committee/Report
Name: The Florida Supreme Court Racial and Ethnic Bias Study Commission was established on
Number of Committee Members: 27 Commission Members
Chair: Frank Scruggs, Attorney. Vice-Chair: Chief Justice Leander J. Shaw, Jr.
Methods Used: Extensive public testimony and numerous empirical studies.
Topics and Recommendations
Access
Findings
1. Fundamentally, the courts should be equally accessible to, and protective of, all persons, regardless of their ability to communicate in English. Interpreters should be made available to an individual for whom English is not the primary language at the first stage of the criminal process at which his or her liberty is at risk.
2. Evidence
in
3. Many of
Recommendations
1. The
2. The courts, through promulgation of a rule of practice and procedure, should be required affirmatively to inquire, during first appearance, as to a criminal defendant’s need for the services of an interpreter.
3. The
4. OSCA should, through appropriate means, ensure the effective dissemination of information to all judges and court administrators regarding the availability and appropriate use of court interpretive training, and certification services.
Juries
Findings
1. The present system of selecting jurors through the list of registered voters does not result in juries which are racial and ethnic composites of the community.
Recommendations
1. The Florida Legislature should further its
resolve to ensure that jury composition accurately reflects the diversity of
the population, allowing the community conscience to be voiced through the
judicial process. At the earliest possible opportunity, the Legislature should
take action to clarify the appropriate timetable necessary to implement the
change in the jury source list, as provided in Senate Bill 687, or adopt other
responsible measures designed to increase the diversity of juries in
Legal Profession
Recruitment/Acceptance
to
Findings
1. Minority
student enrollment in
2. Because low enrollment of minority students is at least partially a consequence of the limited number of minority students applying to law school, increased attention must be directed at the high school, community college, and undergraduate levels to expand the pool from which law school candidates may be drawn.
3. Although
all
4. While minority students appear to graduate as often as do their White peers, they tend not to rank in the upper quartile as often due to, among other factors, lack of available mentors and financial strains.
5. Minority students generally do not perceive law school placement offices as having the inclination or ability to help them obtain employment.
6. Minorities
are severely underrepresented on the faculties of
7. Although most law schools report dissatisfaction with the number of tenure track minority faculty, none have defined specific goals for addressing this concern.
8. A
stark disparity exists in the passage rates of White and Black candidates on
9. Generally, the difference in performance between White and Black candidates is larger on the essay questions than on the multiple choice questions.
10. As
between White and Black candidates with similar overall proficiency levels,
over 10% of the
11. A review of these items by a panel of linguistic and test-measurement specialists reflects that most items contained culturally stereotypic language or situations, or structural components, which may have disadvantaged minority candidates. The Bar exam is no place for the portrayal of minorities in stereotypes or cultural situations which needlessly burden the examination process.
12. Moreover, a review of the entire exam showed that some questions have technical, language, and/or structural problems which, while possibly affecting the performance of all candidates, may carry a greater impact for minority candidates. Adjustment of the items to eliminate these flaws would be consistent with the Board’s item-writing guidelines and could be done without sacrificing the overall integrity of the exam.
13. More than two-thirds of the surveyed Black candidates felt that their law school coursework did not prepare them for the Bar exam generally, and 91% indicated that the tests they took in law school did not prepare them for the multiple-choice items on the Bar exam.
Recommendations
1. Law schools should develop and implement a five-year plan containing specific goals for attaining minority representation within the student body which reflects the level of minority representation among undergraduates.
2. Law schools and their respective undergraduate institutions should develop cooperative minority recruitment programs. Recruitment programs should focus specifically on high schools with high minority enrollment, as well as community colleges and universities. All law schools should appoint a minority recruiter to assist in these efforts.
3. The
4. Law schools should, through the promulgation of an affirmative action plan, formally adopt and implement policies which reflect specific goals and strategies for recruiting, retaining, and advancing African American, Hispanic, Native American, and Asian faculty.
5. All
law schools should develop a summer preparatory program for admitted first year
students with demonstrated academic need, building upon the excellent efforts
of those
6. All law schools should continue to collaborate with the voluntary bar association in each locality to duplicate the “Professional Opportunities for Black Law Students Program,” instituted in Dade County through the efforts of the University of Miami Law School and the Dade County Bar Association, with the goal of expanding the employment potential of minority law students upon graduation.
7. Law schools should increase efforts to provide students with appropriate mentors and should, through direct and indirect means, encourage and assist in the formation of peer support groups.
8. All placement offices should seek to identify and develop relationships with law firms which have proven records of minority hiring, as well as those willing to give serious consideration to factors in addition to GPA and class rank.
9. Placement offices should increase their efforts to reach minority students and graduates as early as possible in their placement efforts and should counsel students early as to the specialty areas of visiting firms.
10. Law schools should aggressively seek the support and assistance of minority alumni as potential faculty candidate referrals, and should seek to increase the involvement of minority and non-minority practitioners and alumni in summer institutes, workshops, and internships, and as guest lecturers, mentors, and advisors. The active use of an intermediate or part-time status, with a commensurate level of compensation is encouraged.
11. The
12. Law schools should undertake a periodic review of their curricula to include course materials that will engender sensitivity to and understanding of different cultures. The schools should also give instruction on the lingering existence and effects of racial and ethnic bias in the courts, the judicial system, and the legal profession.
13. The Board of Regents, the State Board of Community Colleges, and the Department of Education should continue aggressively to support the provision of responsible multi-cultural instruction to elementary, high school, community college, and undergraduate students.
14. The Florid Board of Bar Examiners should immediately review those questions identified in this report as performing differentially between White and Black candidates and revise or eliminate the questions for which the language, situations, or inherent structural components of the questions are most likely accounting for the disparate performance.
15. The
16. The
17. The Florida Board of Bar Examiners should make the data described above available to Florida’s law schools so that the schools may 1) assist the Bar Examiners in discerning what analytical skills the Bar exam should seek to assess and in crafting items which most appropriately measure those skills; and 2) adapt their teaching practices so as to produce lawyers who are capable of passing a Bar exam which fairly tests those analytical abilities.
18. The
Florida Board of Bar Examiners should also share the by product of its analyses
above with the licensing authorities for other professions so that those
authorities may assess the presence of potential biases in all professional
licensing exams presently being utilized in
19. All Florida law schools, once provided with this report and further information from the Board of Bar Examiners as described above, should review their teaching practices and curricula to ensure that both are geared, as much as possible and consistent with the academic goals of both the school and legal education, to prepare students for the rigors of the Bar examination process.
20. The
21. All Florida law schools should immediately consider and develop appropriate mechanisms designed to assist their students in passing the Bar exam. Possible mechanisms include: a) requiring that commercial Bar review courses, as a prerequisite to access to on campus sales, provide scholarships to needy students to cover the cost of the review course; b) with assistance from public or private donors, providing direct funding to needy students for the purpose of taking a commercial Bar review course; and c) developing a supplemental Bar review program for needy students, which would focus on improving essay-writing and test-taking skills, with a heavy emphasis on individual performance.
Findings
1. Professional minority women, both as employees and attorneys within the judicial system, report that they are disproportionately assigned trivial or the least desirable work, while men are assigned the more important work. (See also Minority Women, Finding #4)
2. Minority women attorneys in both the public and private sector are often on the receiving end of inappropriate and unprofessional comments, on the dual basis of their gender and race, from both judges and court personnel. (See also Minority Women, Finding #5)
3. Minority lawyers and law firms do not receive equal opportunities to perform legal services for the State as its outside counsel.
4. While state agencies spend significant sums of money every year to retain and utilize the services of private lawyers, they have not developed effective criteria by which to determine the selection of appropriate lawyers and firms to perform the State’s work.
5. As a large consumer of legal services, the State has the power to exercise its spending decisions in ways which would both help empower minority lawyers and law firms and promote diversity within majority owned law firms.
6. Minorities are underrepresented on the staff of The Florida Bar, especially in positions which influence policy.
7. Minorities
are significantly underrepresented in
8. The
underrepresentation of minority attorneys in
9. Very few Florida law firms recruit from law schools where the enrollment of minority students is traditionally high, thus bypassing one of the most logical and fertile sources of minority candidates.
10. When
making interviewing and hiring decisions,
11.
12. Interactions between minority and non-minority lawyers continue to be characterized by tension, rancor, and humiliation indicative of racial conflict.
Recommendations
1. The Legislature should statutorily 1) ensure that minority lawyers and law firms are extended equal opportunities to perform legal services for the State; 2) require state agencies to make aggressive efforts to target and cultivate relationships with minority lawyers and law firms; 3) limit state contracts with majority owned law firms only to those firms which themselves recruit, hire, promote, and retain minority attorneys; and 4) endorse “joint venturing” between majority and minority firms where necessary to achieve the goal of full utilization of minority lawyers and firms.
2. The
3. All voluntary bar associations should review their membership records and develop specific strategies, where necessary, aimed at increasing the collaboration among minority and non-minority attorneys in their affected localities.
4. The
5. The Florida Chamber of Commerce, the Council of 100, and other business leaders should adopt, as the policy of businesses in Florida, the requirement that all law firms which these businesses contract must demonstrate, as a prerequisite to being retained, the firm’s commitment to recruit, hire, promote, and retain minority attorneys.
6. Law firms should actively recruit from, and establish relationships with, law schools with high enrollment of minority law students.
7. Law firms should increase cultural awareness and sensitivity at the interview stage by educating interviewers as to questions about behaviors that might be discriminatory or otherwise offensive to minority candidates and by including minority attorneys on interview, selection, and hiring teams.
8. Law firms should review those factors which may be inhibiting minority participation in, and the utilization of minorities from, summer associate programs and adopt specific strategies designed to increase the participation and full-time utilization of minority summer associates.
9. Law firms should broaden their recruiting and hiring criteria to weight measures of a candidate’s ability in addition to GPA and class rank.
10. Law firms should give serious consideration to participating in the Texas/Tulane Minority Clerkship Program or any comparable program, which seeks to place first year minority law students as summer associates, with the goal of expanding the range of criteria upon which the law firm may judge the likelihood of the student’s ultimate success with the firm.
11. The
Criminal Justice
Findings
1. Testimonial
evidence suggests that the constitutional presumption of non-financial
pre-trial release for criminal defendants is not being effectuated in practice
in
2. Survey
responses suggest that bail and pre-trial release decisions are being made on
the basis of limited information and without full appreciation for the impact a
defendant’s financial condition has on his or her ability to be released
pre-trial. The practical effect of the release decision-making process in
3. Numerous studies and pervasive testimony document the critical link between pre-trial detention and case outcome. Defendants who are not released pre-trial are more likely to plead guilty and accept a plea bargain for the sole reason to get out of jail. Moreover a defendant who is detained pre-trial is less able to aid in his or her own defense, adversely affecting the outcome of any criminal trial.
4. Pre-trial services programs are in operation
in only approximately half of
Recommendations
1. The
2. The
Education Conferences for Circuit and
3. The Chief Judge in each judicial circuit should ensure the effective dissemination of complete information regarding the pre-trial programs within the circuit.
Findings
1. While African-American offenders account for 57.9% of all admission for other offenses, they currently comprise over 71.2% of all drug offenders.
2. The
educational, vocational, and drug-treatment needs of
3. Specific sentencing policies appear more to accentuate the disproportionate impact of current policies on the minority offender population than they do to effectively reduce crime.
4. As
it moves in the direction of adapting its correctional philosophy to emphasize
the provision of educational and vocational training and drug treatment,
5. The application of the death penalty in Florida is not colorblind, inasmuch as a criminal defendant in a capital case is, other things being equal, 3.4 times more likely to receive the death penalty if the victim is White than if the victim is an African American.
6. Since 1972, 18% of all capital cases have involved a judicial override of a jury recommendation of life imprisonment. The discretionary authority of the judge to override a jury’s recommendation of life opens up an additional window of opportunity for bias to enter into the capital sentencing decision. This discretion is too often influenced by public pressure for punishment and retribution.
7. Society must intensify its efforts to address the underlying economic and social issues and conditions which contribute to the tragically high rate of incarceration of minorities on death row.
Recommendations
1. The Legislature should, through both statutory amendments and funding priorities expand and strengthen the use of community-based programs, pre-trial intervention programs, and probation. All offenders in need of education, training, or drug treatment should be provided the same.
2. All criminal justice agencies should implement data-gathering methods with regard to Hispanics so that a more accurate and continuing assessment of the impact of criminal policies on Hispanics may be measured and monitored.
3. The Florida Legislature should require, as a condition of funding, that each State Attorney:
a. Promulgate effective criteria which ensure the fair and equal exposure of individuals to processing under mandatory minimum statutes.
b. Annually submit a report to the Legislative Appropriations Committees detailing the racial ethnic composition of all individuals prosecuted under these statutes. To the extent that such reports reveal racial/ethnic disparities in the population of individuals who are prosecuted under these statutes, the Legislature should require a detailed justification for the impact of prosecutorial decision making in this area.
4. The Legislature should, through adequate funding of the Drug Punishment Act of 1990 and other appropriate methods, provide sufficient community-based sanctions for technical probation violators, with a strong educational, vocational, and treatment component.
5. The
Chief Judge in each circuit, as well as individual judges, should seek the
implementation of alternative sentencing models, such as the “
6. The Departments of Corrections and Health and Rehabilitative Services should actively and concurrently monitor minority access to and success in offender educational, vocational, and drug treatment programs. Insofar as the programs are for training, those departments should collaborate with the Department of Labor and Employment Security. As part of that collaborative effort, each department should, through rule promulgation or other appropriate methods, ensure that educational, vocational, and drug program administrators apply fair and culturally sensitive screening and selection criteria for participation in their programs and exhibit cultural awareness in the administration of their programs.
7. The
Findings
1. By 1994, 30% of all Black males between the ages of 19 and 34 will be incarcerated or under some form of state control.
2. The racial composition of those individuals sentenced as habitual offenders reveals a wide disparity between Black and White offenders. In 1990-91 73.6% of all habitual offenders admitted to prison were Black, even though Blacks represented approximately 60% of admissions for all crimes.
Recommendations
1. The Legislature should adequately fund the literacy, educational, and vocational programs under the purview of the Correctional Education School Authority and PRIDE, as well as the incarcerative drug-treatment programs provided by the Department of Corrections.
2. The Legislature, through the joint efforts of the criminal justice and corrections committees of the House and Senate as well as the Joint Task Force on Sentencing Practices and Prison Resources, should immediately undertake a review of those cases prosecuted under both mandatory minimum statures and the habitual offender statue to determine the effect of race or ethnicity in their selection, processing, or ultimate disposition. To the extent that improper considerations are playing a role, the Legislature should repeal these statutes altogether.
3. The Legislature should re-examine its 1988 amendment to the Sentencing Guidelines embodied in s. 921.001(5), Florida Statues, and ensure, through the promulgation of criteria or otherwise, that a sentence of incarceration is not being imposed upon drug, non-violent property, or other offenders who are more appropriate candidates for non-incarcerative sanctions.
Court as an
Employer/Appointer
Findings
1. A widespread perception exists that minority lawyers do not receive an equitable share of fee-generating appointments by the courts.
Recommendations
1. The Chief Judge in each circuit should initiate a review of the court appointments made by all judges within the circuit and, if necessary, adopt criteria designed to ensure the fair award of fee-generating court appointments.
Findings
1. Minority
women comprise only 1% of
2. No clear directives exist regarding the active recruitment, hiring, and promotion of minority women to address their underrepresentation in the judicial system.
3. The over reliance on word-or-mouth advertisement of vacancies within the judicial system reduces the probability of a wide selection of minority women applicants, further contributing to the underrepresentation of minority women. Specifically, the practice of selecting judges’ own staff through personal referrals adversely affects minority women.
4. Professional minority women, both as employees and attorneys within the judicial system, report that they are disproportionately assigned trivial or the least desirable work, while men are assigned the more important work. (See also Legal Profession: Hiring and Promotion, Finding #1)
5. Minority women attorneys in both the public and private sector are often on the receiving end of inappropriate and unprofessional comments, on the dual basis of their bender and race, from both judges and court personnel. (See also Legal Profession: Hiring and Promotion, Finding #2)
6. Training opportunities for minority women in the judicial system designed to improve their skills or enhance their opportunity for promotion are limited.
7. Minority women supervisors consistently report adverse practices which undermine their authority including being given less responsibility and discretion in the supervision of their subordinates.
Recommendations
1. The Commission continues to encourage the Supreme Court to develop, and the Florida Legislature to fund, an Office of Equal Employment Opportunity. Once developed, this office should ensure that clearly written policies, procedures, and goals for the recruitment, selection, promotion, and retention of minorities, including minority women, are established throughout all levels of the judicial system. An annual report should be submitted to the Chief Justice outlining progress, problems, and corrective actions relating to the implementation of this plan.
2. All court administrators and personnel managers within the judicial system should develop and implement an advertisement policy so that all vacancies and promotions are widely and systematically publicized. Extensive use should be made of minority-oriented media to ensure an adequate supply of minority women applicants.
3. Judges should be encouraged to extend their selection of judicial assistants and law clerks so as to include a wiser pool of applicants to ensure equal access for minority women. Local court administrator offices should assist judges in identifying a wider, more ethnically diverse applicant pool by, among other things, contacting placement offices at law schools.
4. Court administrators, personnel directors, and supervisors should provide opportunities to minority women to participate in educational and training programs through the state waiver system or other agency funded mechanisms to acquire the skills necessary to increase their chances for success and future promotion.
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