Race and Ethnic Fairness
State:
Committee/Report
Name: The Fairness and Equality Committee of the Supreme Court of Idaho was
established on
Number of Committee Members: 10 Committee members
Number of Subcommittees: No Subcommittees
Chair/Co-Chair: One Chair: Hon. Larry M. Boyle, Justice, Supreme Court of Idaho.
Methods
Used: In its efforts to specifically identify and define the issues, the
Committee studied the results of other states. Six states have conducted
studies on the subject of racial and ethnic fairness in the courts. With the
consistency of the findings in other states, the inescapable conclusion was
that there is no real necessity to duplicate these efforts. This material is
presented without any attempt to specifically connect it to
Topics and Recommendations
Perception
Findings
1. The perception that bias against minorities pervades the legal system, along with the lack of minority employees in the system, is seen as contributing to the distrust and suspicion with which minorities view the court system.
2. The appearance and language of an individual appears to impact upon the court’s perception and treatment of that individual. As a result, race and ethnicity are factors in the legal system’s response to the minority litigant. This creates a perception of insensitivity or indifference to minority citizens.
3. Because minority litigants’ expectations of justice are affected by his/her perception of how the participants in the justice system regard the minority to which the litigant belongs, race and ethnicity play a role in the minority litigant’s determination of whether to seek access to justice through the civil process.
Recommendations
1. The judiciary should adopt affirmative action plans designed to identify where minorities have been excluded and the reasons for the exclusion. (See also Court as Employer/Appointer: Hiring/Promotion, Recommendation #1)
Access
Findings
1. Minority defendants were often unfamiliar with the judicial process. Those who do not speak English need someone to explain the system, not just translate court proceeding to them.
2. When interpreter services are available, judicial survey respondents believed them to be of reasonably high quality. However, judges were equally divided on how readily available services are in their courts.
3. Minorities are often unable to access rehabilitation programs due to language or financial barriers. This in turn can lead to an increase in the likelihood of incarceration or recurrence of the untreated problem. (See also Criminal Justice: Incarceration, Finding #1)
Recommendations
1. The judiciary should provide interpreters who are bilingual, have a knowledge of cultural variations, and are able to explain court proceedings or facilities when necessary.
Juries
Findings
1. Peremptory challenges are used to exclude jurors on the basis of race and ethnicity.
2. There is a low representation of minorities on juries.
Recommendations
1. The judiciary should develop cautionary instructions or model jury charges to be available for use by judges to educate juries on the inherent unreliability of eyewitness identification generally and particularly respecting cross-racial identifications.
Courtroom Experience
Findings
1. Many states reported biased behavior or offensive remarks by judges, attorneys, and court employees during court proceedings involving minorities. (See also Courtroom Environment: Court Staff, Finding #1; Courtroom Environment: Lawyers/Jurors/Others, Finding #1)
2. Surveys and public hearing testimony underscored the frequency of subconsciously biased behavior towards minorities, although the majority of non-minority male lawyers and judges who responded to the surveys did not perceive that such behaviors exist.
3. Minority litigants and lawyers indicated their belief that judicial discretion was exercised against them. Attorneys noted that minority lawyers were denied adjournments in circumstances where majority colleagues would get them, or delayed in their trial date in circumstances where majority lawyers would get firm trial dates. Minority lawyers also expressed their opinion that they were interrupted by judges more frequently than majority lawyers and thus denied the opportunity to fully argue their points of law.
Findings
1. Many states reported biased behavior or offensive remarks by judges, attorneys, and court employees during court proceedings involving minorities. (See also Courtroom Environment: Judges, Finding #1; Courtroom Environment: Lawyers/Jurors/Others, Finding #1)
Findings
1. Many states reported biased behavior or offensive remarks by judges, attorneys, and court employees during court proceedings involving minorities. (See also Courtroom Environment: Judges, Finding #1; Courtroom Environment: Court Staff, Finding #1)
2. Attorneys were criticized for addressing minority witnesses and litigants by first name, and for making racial or ethnic comments in the course of in chambers discussions.
3. It is believed that attorneys who act as mediators factor race and ethnicity into their evaluation of a case’s settlement value.
Recommendations
1. The judiciary should encourage more frequent utilization of expert witnesses on eyewitness identifications in trials. Court rules should be formulated which authorize such testimony, particularly where the identification is not strong or where the case rests mainly in the identification.
2. The judiciary and mental health agencies should create a pool of qualified forensic specialists who are aware and sensitive to socio-cultural factors in minority defendants.
Quality of Legal
Representation
Findings
1. A large proportion of minority defendants are represented by public defenders who provide less than adequate representation because public defender agencies are frequently overworked and understaffed.
Recommendations
1. The Bar Association and the courts must examine the quality of legal representation afforded minority litigants in areas of the state where there exist few or no minority attorneys despite sizeable minority populations.
Legal Profession
Recruitment/Acceptance
to
Recommendations
1. Law schools must be encouraged to recruit more minorities.
Findings
1. There are substantial differences between minority and while male attorneys in occupations and incomes. Despite similar levels of educational attainment minority attorneys are more likely than white attorneys to be employed as government lawyers and public defenders. These legal positions provide valuable public service, but pay substantially less than positions in private law firms.
Recommendations
1. The bar association must publish information about the composition of its membership on an annual basis.
2. Additional information must be obtained on the reasons why minorities are overwhelmingly represented among government lawyers and why minority and women attorneys typically receive less compensation than white men.
Education
Recommendations
1. Annual sensitivity training to address minority concerns, whether they be racial, ethnic or cultural, should be required for all judges and court support employees. Judges, attorneys, and court personnel should be trained to understand and control their attitudes about individual appearance and language as it relates to both defendants and victims. (See also Education: Court Staff, Recommendation #1; Education: Lawyers, Recommendation #1)
2. The state supreme court should direct that each assignment judge arrange for a statement on racial, ethnic, and cultural bias in the courts to be read in court on May 1 (Law Day) of each year.
Recommendations
1. Annual sensitivity training to address minority concerns, whether they be racial, ethnic or cultural, should be required for all judges and court support employees. Judges, attorneys, and court personnel should be trained to understand and control their attitudes about individual (See also Education: Judges, Recommendation #1; Education: Lawyers, Recommendation #1)
Recommendations
1. Annual sensitivity training to address minority concerns, whether they be racial, ethnic or cultural, should be required for all judges and court support employees. Judges, attorneys, and court personnel should be trained to understand and control their attitudes about individual (See also Education: Judges, Recommendation #1; Education: Court Staff, Recommendation #1)
Criminal Justice
Findings
1. Several reports indicated that police officers, particularly traffic officers, appear to harass individuals on the basis of their minority status alone.
2. Minorities are stopped and detained more frequently and are treated with less respect and more unnecessary force than are non-minorities.
Findings
1. Minorities are often systematically discriminated against by being denied a first offender waiver in criminal cases.
2. There is a tremendous lack of uniformity in arriving at bail decisions and these differences impact substantially on the constitutional right to bail.
3. Minority defendants are less likely to be released on their personal recognizance than are non-minority defendants.
4. The effect of bail falls hardest on the poor and, since minorities are disproportionately poor, disproportionately on minorities.
5. Use of a social stability index for the granting of bail disproportionately impacts upon minorities by stressing factors such as employment, financial stability, and community ties.
6. There is a perception that there is a disparity in prosecutorial decision making based upon the race and ethnicity of both the accused and the victim. Reasons for these perceptions are that broad discretion is exercised in the hands of white male prosecutors; warrants are sometimes issued for inappropriate police searches which target minority populations without probable cause; minority individuals are more likely to be charged with a more serious crime than non-minority individuals for similar offenses and records; minority defendants are more likely to be pressured into plea bargaining by the use of multiple charges, dispositional alternatives to trial, including plea bargaining opportunities, are disparately available between minorities and non-minority defendants.
7. While the use of sentencing guidelines has narrowed the apparent discrepancies in sentencing based upon the race and ethnicity of the accused, the state reports suspected continuing differential treatment.
Recommendations
1. The judiciary should require that all rules and directives regarding bail be reviewed and revised in order to promulgate procedures to be applied uniformly statewide.
2. The judiciary should also adopt a bail policy whose release criteria focuses upon factors relating demonstrable to the defendant’s likelihood to appear in court. The bail policy should take into account the past court appearance history, but economic criteria such as salary or employment history should be given minimum weight, because this factor generally impacts unfairly upon racial minorities.
3. The judiciary should adopt a bail policy that requires that monetary release options incorporate a defendant’s ability to pay in cases where the bail will be set.
4. The judiciary should adopt a bail policy that includes non-monetary release options to minimize the setting of bail unless probability of non-appearance has been established by the court.
5. The judiciary should adopt a bail policy based on the presumptions that all individuals are release worthy and that in cases where there is a presumption against incarceration, the defendant should be released on his or her own recognizance.
6. The judiciary should conduct a study of actual bail practices to investigate the question of disparity in bail practices by race, ethnicity, gender, and economic class.
Findings
1. A number of reports referred to the perception that minorities receive harsher sentences for the same crime than do non-minorities.
Recommendations
1. Sentencing practices should continue to be monitored. Current analysis of sentencing should include factors relating to the impact of an interrelationship of misdemeanor convictions and sentences; the race, ethnic background and gender of the judge, victim, and defendant; and guidance departure.
Findings
1. Minorities are often unable to access rehabilitation programs due to language or financial barriers. This in turn can lead to an increase in the likelihood of incarceration or recurrence of the untreated problem. (See also Access: Language, Finding #3)
Court as
Employer/Appointer
Findings
1. The underrepresentation of minorities in both the judiciary and the court staff suggests unfairness to minorities and also perpetuates their distrust of the legal system
2. There is an extreme underrepresentation of minorities in official, administrative, professional, and managerial positions in the judiciary.
3. The judiciary lacks a standard for determining underrepresentation among court-related volunteer boards, municipal judges, court appointments, and court committees.
4. There is a significant lack of minorities as judges.
Recommendations
1. The judiciary should adopt affirmative action plans designed to identify where minorities have been excluded and the reasons for the exclusion. (See also Perceptions: Attorneys, Judges, and Court Staff, Recommendation #1)
2. The judiciary should adopt methods to find and place qualified minorities.
3. The judiciary should require that all court-related volunteer programs maintain statistics on the racial or ethnic identity of its volunteers and establish a standard for determining under representations for purposed of monitoring and maintaining the reasonable representation of minorities.
4. The judiciary should require that the various volunteer programs be better advertised in the minority community.
5. The judiciary should implement a procedure which ensure adequate and effective monitoring of all district equal employment opportunity plans.
6. The judiciary should establish a formal mechanism to ensure adequate participation of minorities on all committees and task forces at all levels.
7. The judiciary should direct the Administrative Office of the Courts and the districts to increase the representation of minorities in the official, administrative, managerial, and professional job classifications.
8. The judiciary should reassess and implement some type of management development program to enhance minority participation in the judiciary.
9. The judiciary should document the degree to which minorities are underrepresented on the bench of all courts in the state and identify appropriate ways for bringing those findings to the attention of the appointing authorities.
10. The judiciary should develop standards against which progress toward involving minority employees and volunteer in several parts of the judiciary can be evaluated.
Recommendations
1. The judiciary should develop and adopt standards for determining under representation of minorities among court appointments.
Recommendations
1. The Supreme Court should instruct judicial nominating commissions that racial and ethnic diversity on the bench is desirable.
2. Each judicial nominating commission should establish a minority recruitment plan and report annually on increases in the number of minorities recommended for appointment to the bench.
Findings
1. The racial and ethnic bias by enough participants in the juvenile justice system make the system operate as if it were intended to discriminate against minorities.
2. At present there is no system for investigating decisions which appear to have been based on racial or ethnic considerations.
3. Minorities are over represented at all stages of juvenile delinquency cases and this phenomenon becomes more marked at each successive stage of the juvenile justice system.
4. Some judges and court staff tend to treat minority juveniles with less courtesy and professionalism than they do non-minority juveniles.
Recommendations
1. The juvenile justice system needs increased supervisory review of actions taken by law enforcement personnel.
2. The judiciary should issue a directive to family division judges and case managers requiring that they thoroughly familiarize themselves with the services that are available to juveniles charged with delinquency.
3. The judiciary should encourage Family Division judges in their capacity as members of county youth services commissions and in their dealings with other bodies to work towards the improvement of services and programs for juveniles charged with delinquency, particularly minority juveniles.
Findings
1. There is no formal procedure available for filing a grievance against court or court support staff in instances of overt discriminatory or perceived discriminatory behavior.
Recommendations
1. The judiciary should direct the Administrative Office of the Courts to develop a discrimination complaint procedure and ultimately adopt the procedure and implement it in each district.
2. The Supreme Court should create the position of ombudsperson for racial and ethnic minorities in the court system.
National Center for
State Courts
300 Newport Avenue
Williamsburg, VA 23185
Phone (800)616-6109 Fax (757)564-2022
Questions or Comments - email webmaster@ncsc.dni.us
Copyright © 2004 The National
Center for State Courts. All Rights Reserved.