Race and Ethnic Fairness
State: Indiana
Committee/Report
Name: The Indiana Supreme
Court Commission on Race and Gender Fairness was created in 1999 and published
its final report
Number
of Committee Members: 26
Commission Members
Number of Subcommittees: 6 Subcommittees; The Treatment by the Courts Subcommittee, Makeup of the Profession, Language and Cultural Barriers, Criminal and Juvenile Justice, Civil, Domestic and Family Law, and Employment.
Chair/Co-Chairs:
Methods
Used: Seven Public Forums,
Surveys, Focus Groups, Literature Review
Topics and Recommendations
Perception
Attorneys, Judges, and Court Staff
Findings
1. Although the vast majority of Indiana attorneys, court employees
and others surveyed in 2002 report that courts in their county are fair with
regard to gender, race and ethnicity, a significant minority report that they
have observed courtroom harassment and disparagement on the basis of gender,
ethnicity or race, including by judicial officers. More of the discrimination
appeared to be centered on gender than race, with much of it aimed at women
attorneys and litigants. Similarly, a minority of the judicial officers
reported that attorneys, litigants, witnesses, court employees and even judges
had been subjected to gender or race-based disparagement, most often on the
basis of gender and most often by attorneys.
2. While some attorneys, court
employees, judges and others perceive that gender, race, and ethnicity may
influence decisions in various types of judicial proceedings and that gender,
race and ethnicity influence the way people are treated in the legal system,
Indiana courts and agencies in Indiana collect little data that would allow
tracking the role of gender, race or ethnicity in those proceedings. A
significant minority of the persons surveyed, however, report having observed
disparagement on the basis of race and gender in
Access
Findings
1. Nationally, there is a perception that non-English
speakers, Hispanics and African-Americans are not treated as well as others in
the courts. Those perceptions
were echoed by participants in
2. A growing number of Hoosiers speak languages other than
English at home and report that they speak English less than “very well.” The
2000 U.S. Census reported that more than 362,000 persons over age 5 in Indiana
or 6.4 percent of the population spoke languages other than English in their
homes and 40 percent of them reported that they speak English less than
well. Approximately half speak Spanish
at home and 45 percent report that they speak English “less than well.” More
than 186,000 residents of
3. Judges throughout
4. By far the most common language where interpreters were
required was Spanish with 84.6 percent of the judges reporting they had used
Spanish interpreters. Other languages where interpreters were
used included Vietnamese (10.1 percent), Chinese (9.7 percent) and Russian (6.1
percent). Surveys of attorneys and court personnel revealed that
courtroom interpreters also had been used for Polish, German, Japanese, Korean,
Arabic, French, Greek, Ethiopian, Punjabi, Croatian, Serbian, Lithuanian,
Macedonian, Czech, Thai, Burmese, Tongan and Rumanian.
5. Despite the use of interpreters in some
judicial proceedings, attorneys, court personnel and court users believe that
persons who are not fluent in English are at a disadvantage in dealing with law
enforcement personnel, the judicial system and the correctional system. They
claim that non-English speakers are arrested disproportionately, are treated
less favorably during at the pretrial stage and in court because of language
and cultural differences and are rarely explained the consequences of plea
bargains. Once in the correctional system, lack of English proficiency prevents
full participation in rehabilitive programs. Newcomers to the
6. Although all agreed that interpreters must be fluent in English and the
interpreted language to work in the courts, a majority of the judges surveyed
(66.4 percent) indicated they lacked minimum standards to verify credentials.
Such standards and procedures as exist lacked uniformity. Attorneys and others
familiar with the courts expressed concern that interpreters
misinterpreted testimony, paraphrased instead of translated or included
inappropriate commentary instead of merely translating.
7. While a few courts in
8. Twenty-five other states -- including
Kentucky, Illinois and Michigan -- are members of the State Court Interpreter
Certification Consortium, a program developed in 1995 administered by the
National Center for State Courts. The Consortium develops court interpreter
proficiency tests, makes the tests available to member states and regulates
their use. The Consortium has developed 11 different tests for languages,
including those most often encountered by the
Recommendations
1. The Task Force recommends that the Interim Recommendation
regarding certified court interpreters forwarded to the Supreme Court in June
2002 and partly adopted by Order of August 30, 2002, [See Appendix E.] be fully
implemented in order to allow Indiana residents who lack English proficiency to
fully participate within the judicial system.
2. The Task Force recommends that procedures be
established to monitor the use of all foreign-language interpreters within the judicial
system and that standards be adopted to govern the conduct of interpreters in
judicial proceedings in order to assure professionalism and quality.
3. The Task Force recommends that a system be
developed where by accurate, uniform information on the legal system can be
readily provided to and accessed by persons who are not proficient in English.
Information advising persons of their basic rights and responsibilities under
Indiana and
4. The Task Force recommends that the Department of Correction be encouraged to
institute language proficiency programs within the penal system and that
legislation be adopted to allow persons with limited English proficiency who successfully complete such programs to obtain credit
time in proportion to existing credit time programs linked to education.
Findings
1. Cultural and status
issues also appear to give rise to concerns involving non-citizens and other
newcomers. For example, certain conduct that is acceptable or at least legal in
other cultures may result in criminal charges or incarceration or other risks
in the United States; socioeconomic or cultural differences may put newcomers
at a disadvantage in matters as diverse as bail and child welfare, and Indiana
law enforcement and court personnel are often unaware and fail to comply with
international treaties. Moreover, linguistic and cultural minorities often
perceive that judges and law enforcement personnel lack knowledge of or are
insensitive to their background and cultures.
Recommendations
1. The Task Force recommends that law
enforcement and prosecutors’ offices in
2. The Task Force
recommends that attorneys involved in the criminal justice system be advised of
the potential immigration consequences of arrest, detention and convictions so
that they may better advise their clients and make more informed decisions when
non-U.S. citizens have occasion to interact with the criminal justice system.
Juries
Findings
1. A perception exists in some
quarters that women and minorities may be excluded from juries based on their
race or gender. A minority of attorneys and court personnel held that
perception and fewer had observed the phenomena than believed it occurred. No
objective data as to the demographic makeup of jury venires, the demographic
makeup of juries or the demography of challenges, however, was available.
2. In a national survey in 1999, 71
percent of African Americans and 66 percent of Hispanics stated that juries
were not representative of the community while whites surveyed were evenly divided
on the question.
3. An
earlier study in
Recommendations
1. The
Task Force recommends that trial courts presiding over civil jury cases be
ordered to keep statistics of the race and gender of prospective jurors and the
race and gender of jurors selected for a designated number of civil jury trials
for a two-year period beginning in June 2003 and submit those statistics to the
Division of State Court Administration quarterly. (See also Measurement and
Evaluation, Recommendation #4)
Courtroom Experience
Findings
1. Although some court employees participating
in focus groups and surveys expressed some concerns about the general fairness
issues in the courts, an overwhelming number of those surveyed -- 95 percent --
report that they are treated fairly by their judicial employers without regard
to gender, race or ethnicity.
Findings
1. While male minority lawyers rarely report
that they are faced with explicit disrespect by court personnel or opposing
counsel, there are indications that they too are disparaged on the basis of race
by opponents, judges and court personnel.
Legal Profession
Recruitment/Acceptance
to
Findings
1. Although women and minorities appear to enroll in law
schools in
2. Women
and minorities are admitted to the four law schools in
3. The four law schools in
Recommendations
1. The Task Force recommends that
the four law schools within
2. The Task Force recommends that further
information be obtained from the law schools about their attempts to achieve
proportionate representation in minority enrollments and graduation rates as
well as proportional representation of women and minority faculty.
3. The Task Force recommends that law schools be
encouraged to continue their efforts to recruit qualified minorities and women
faculty with the goal of at least obtaining faculty representation reflecting
the minority and female enrollment in their institutions.
Findings
1. Approximately 27.4 percent of attorneys in
2.
3. The
Commission did not gather statistics as to demographics in government offices
or legal service organizations where women and minorities are generally employed
at a higher rate than in private law firms.
Recommendations
1. The Task Force recommends that steps be taken to address issues of
disrespect, incivility and disparagement of women and minorities, whether real
or perceived, and that mentoring programs be established to assist with
transitions into the profession.
2. The Task Force recommends that further study be undertaken
to explain and address the statistical disparities in the number of minority
lawyers in law firms and what appears to be an under-representation of women at
the partnership level. Regardless of the result of such a study, law firms, the
judiciary and law schools should increase contacts between law firms and
minorities and law firms should be encouraged to review their recruitment,
employment and evaluation practices for barriers to recruitment and retention
of women and minorities.
3. The
Task Force recommends that more comprehensive statistics be gathered or
maintained to determine a more accurate picture of the demographic makeup of
the legal profession and assist with future strategies for inclusion of women
and minorities in the profession.
4. The Task Force recommends that surveys be
developed to determine whether the statistical disparities involving the number
of women in the judiciary and at partnership level in law firms is related to
their time out of law school or other factors. (See also Measurement and
Evaluation, Recommendation #6)
Education
Recommendations
1. The Task Force recommends that at
least one session of every educational meeting of the Judicial Conference be
devoted to promoting awareness, understanding and sensitivity to issues of
racial, gender and ethnic fairness to underscore that fairness and equitable
treatment is a foremost concern in the justice system of a just society.
Recommendations
1. The Task Force recommends that at least one hour of every
program on Applied Professionalism — the legal education program required for
every new attorney — contain materials that promote awareness, understanding
and sensitivity to issues of racial, gender and ethnic fairness to underscore
that fairness and equitable treatment is a foremost concern in the justice
system of a just society.
2. The Task Force recommends that the Prosecuting Attorneys Council and the Public
Defender Council be encouraged to include one session of programming a year promoting
awareness, understanding and sensitivity to issues of racial, gender and ethnic
fairness to underscore that fairness and equitable treatment is a foremost
concern in the justice system of a just society.
Recommendations
1. The Task Force recommends that bar
associations, prosecutors, public defenders and law enforcement be encouraged
to educate the public about the difference between the functions of the
judiciary, attorneys and law enforcement in the criminal justice system.
2. The Task Force recommends that educators,
attorneys and others with ties to ethnic and immigrant communities be
encouraged to develop curricula that can be used in middle schools, churches,
community centers and English as a Second Language classes that would inform
newcomers to the United States of cultural differences and behaviors that are
tolerated in countries of origins, such as domestic battery, driving without a
license or without insurance and public intoxication, may lead to penal
consequences here.
Civil and Family
Findings
1. A
perception exists among attorneys, court users and judges that gender
influences the results in certain civil and family law proceedings.
Specifically, many believe that women receive more favorable treatment in child
custody cases, child support cases, and protective order proceedings. Another
perception is that homosexuality may be a liability in family law and
protective order proceedings. (See also Civil and Family: Family, Finding #1)
Recommendations
1. The Task Force recommends that trial courts
and prosecutors work with victims assistance advocates
to put together comprehensive referral lists of groups and programs available
to help victims of violence irrespective of gender or sexual orientation and
make such lists available through courts, hospitals and law enforcement
agencies. The information should be available in English and Spanish and any
other languages represented in significant numbers in areas of distribution.
(See also Civil and Family: Family, Recommendation #1)
Findings
1. A perception exists among attorneys,
court users and judges that gender influences the results in certain civil and
family law proceedings. Specifically, many believe that women receive more
favorable treatment in child custody cases, child support cases, and protective
order proceedings. Another perception is that homosexuality may be a liability
in family law and protective order proceedings. (See also Civil and Family:
Civil, Finding #1)
2. A perception exists that women victims of
domestic violence have a network of support services while no comparable
support network exists for men and that courts consider men as less desirable
custodial caregivers in cases of child custody.
3. Neither
the courts nor executive agencies in
Recommendations
1. The Task Force recommends that trial courts
and prosecutors work with victims assistance advocates
to put together comprehensive referral lists of groups and programs available
to help victims of violence irrespective of gender or sexual orientation and
make such lists available through courts, hospitals and law enforcement
agencies. The information should be available in English and Spanish and any
other languages represented in significant numbers in areas of distribution.
(See also Civil and Family: Civil, Recommendation #1)
2. The Task Force recommends that trial courts
presiding over family law and protective order cases be ordered to keep
statistics of the race and gender of the parties and the results of the
proceedings in disputed child custody cases, disputed child support cases and
protective order cases for a two-year period beginning in June 2003 and submit
those statistics to the Division of State Court Administration quarterly. (See
also Measurement and Evaluation, Recommendation #3)
Criminal Justice
Findings
1. Attorneys representing persons new to the
2. A perception exists with court employees,
court users and attorneys that ethnic and racial minorities are treated more harshly
by the criminal justice system in many respects including arrests, bail, crimes
charged and sentencing and that women are treated favorably by the system.
Statistics are not maintained, however, as to the demographics of adult
arrests, bail, charged crimes or sentencing that would allow testing of the
perceptions. (See also Criminal Justice: Pre-Trial, Finding #1; Criminal
Justice: Outcomes, Finding #1)
Findings
1. A perception exists with court employees, court users and
attorneys that ethnic and racial minorities are treated more harshly by the
criminal justice system in many respects including arrests, bail, crimes
charged and sentencing and that women are treated favorably by the system.
Statistics are not maintained, however, as to the demographics of adult
arrests, bail, charged crimes or sentencing that would allow testing of the
perceptions. (See also Criminal Justice: Arrests, Finding #2; Criminal Justice:
Outcomes, Finding #1)
2. Bail criteria, especially involving “length
and character of residence,” is thought to have a disparate impact on racial
and ethnic minorities who because of socio-demographic and economic concerns
are more likely to rent than own their residences. Anecdotal evidence suggests
that minorities are often refused bail or, because of disparities in home
ownership, bail is often set at higher levels for minorities
who are then held in custody because they are unable to afford bail.
Recommendations
1. The Task Force recommends that bail criteria
be reviewed for factors that unnecessarily burden racial and ethnic minorities.
To the extent that the current system inadvertently places minorities at a
disadvantage because of cultural or socioeconomic factors unrelated to the
purpose of bail, changes to the legislative criteria or the manner in which
they are applied should be proposed. To the extent that the burdensome factors
are determined to be related to
the purposes of bail, those factors in particular need to be better explained
to the general public.
Findings
1. A perception exists with court employees,
court users and attorneys that ethnic and racial minorities are treated more
harshly by the criminal justice system in many respects including arrests,
bail, crimes charged and sentencing and that women are treated favorably by the
system. Statistics are not maintained, however, as to the demographics of adult
arrests, bail, charged crimes or sentencing that would allow testing of the
perceptions. (See also Criminal Justice: Arrests, Finding #2; Criminal Justice:
Pre-Trial, Finding #1)
2. Perceptions exist that males who
are racial and ethnic minorities receive probation less frequently than
similarly situated male Caucasians or females. National statistics showed that,
in December 1997, African-Americans made up 49 percent of adult prisoners but
were only 34 percent of adults on probation. Similar perceptions of disparate
treatment were expressed as to sentences and charged offenses as well. While
Indiana statistics were not available on either issue, Department of Correction
statistics for July 2002 showed that African-Americans made up 56 percent of
those serving sentences for Class A felonies; 44 percent for Class B felonies,
35 percent for Class C felonies and 31 percent for Class D felonies.
Recommendations
1. The Task Force recommends that a Blue Ribbon
Panel be convened with representation from all branches and levels of
government, ethnic and racial communities, including academics, law enforcement
and medical and mental health professionals to review the sentencing structure
and offense classifications that appear to have a disparate impact on ethnic
minorities and females. The Panel should consider whether changes in the
current system are warranted and, if so, should suggest modifications in the
classification of offenses and range of sentences that could result in possible
legislation in 2004.
Findings
1. Within the correctional system, both nationally and within
2. One of the common issues raised in focus groups was that the
sentencing structure and offense classification system over-classified
drug-related offenses and resulted in disproportionate incarceration of
minorities and females. Though statistics were not available on this precise
issue, the statistics that do exist reveal that the percentage of
African-Americans increases with the classification of the committing offense.
For example, 56 percent of those in Dept. of Correction custody in July 2002
were serving sentences for Class A felonies; 44 percent for Class B felonies,
35 percent for Class C felonies and 31 percent for Class D felonies. Approximately
20.4 percent of all committing offenses in 2001, regardless of class, involved
drug offenses. Moreover, 28.4 percent of females in DOC custody in 2001 were
serving time for drug offenses. And the most common felony classification for
all offenders was Class B felonies, the most common offense being Dealing in Cocaine or Narcotic Drugs.
3. Questions also arose regarding how racial and ethnic minorities we re treated post-sentencing. Common issues had to do with assignment within institutions, especially because assignments and classification affect credit-classifications and release dates; the racial and ethnic makeup of correctional officers, and probation. Demographic statistics we re not available as to assignments and classification once imprisoned. Statistics for July 2002 revealed that, although 39.2 percent of the inmates we re African-American, only 16.5 percent of the correctional officers were. Similarly, where 2.8 percent of the inmates were Hispanic, only 1.2 percent of the correctional officers were.
Recommendations
1. The Task Force recommends that
the Department of Correction be encouraged to step up its efforts to recruit
and retain more ethnic and racial minorities to work within the prison system
so as to reduce perceptions of unequal treatment within the criminal justice
system.
Court as an
Employer/Appointer
Findings
1. Even though statistics on employment within the judicial
system are incomplete, it is clear that both women and minorities are employed
within the state judicial system. What cannot be determined readily is their
numbers. It appears, however, that women are employed more often than racial
and ethnic minorities.
2. Employment policies and practices in state
courts appear to be at the discretion of the individual judges with little
attempt to standardize policies or practices. In some counties, courts have adopted
county or city personnel policies and, in others, courts within the county have
attempted to coordinate efforts; but it appears that many courts lack policies
other than those required by federal civil rights and wage and hour laws.
3. The vast majority of judges responding to the
survey reported that they made their hiring decisions based on reputation,
personal experience or prior work experience of applicants and rated gender,
race and ethnicity as unimportant.
4. No
agency or arm of the state judiciary appears to be collecting demographic data
relating to recruitment and retention practices of employers within the
Recommendations
1. The Task Force recommends that
trial court administrators be ordered to keep (1) statistics of the race,
gender and ethnicity of all applicants and new hires as well as those who
terminate employment, (2) statistics of the race, gender and ethnicity of any
court appointed arbitrators, special masters, receivers, mediators and experts
and (3) statistics of the race, gender and ethnicity of persons employed by the
courts as of February 1, 2002. These statistics should be submitted quarterly
to the Office of State Court Administration beginning in September 2003. (See
also Measurement and Evaluation, Recommendation #5)
2. The Task Force recommends that judges and court administrators develop and
use a standard set of employment practices -- including policies for
recruiting, interviews, evaluations, discipline and salaries.
Findings
1. Women appear to be represented within the
state judiciary in similar proportion to the nation as a whole and the state of
Recommendations
1. The Task Force recommends that trial courts throughout
Indiana presiding over criminal proceedings be ordered to keep (1) statistics
of the race, gender and ethnicity of criminal defendants, the offense(s)
charged and the amount of bail, if any, and (2) statistics of the race, gender
and ethnicity of persons convicted of crimes, the offense(s) on which they were
found guilty, the results of any plea bargain and sentence or probation, if
any. These statistics should be submitted quarterly to the Office of State
Court Administration beginning in July 2003.
2. The Task Force recommends that
the Department of Correction be encouraged to keep or report demographic
statistics regarding assignments within the correctional institutions and
classifications in order to allow a review of such assignments.
3. The Task Force recommends that trial courts
presiding over family law and protective order cases be ordered to keep
statistics of the race and gender of the parties and the results of the
proceedings in disputed child custody cases, disputed child support cases and
protective order cases for a two-year period beginning in June 2003 and submit
those statistics to the Division of State Court Administration quarterly. (See
also Civil and Family: Family, Recommendation #2)
4. That trial courts presiding over civil jury
cases be ordered to keep statistics of the race and gender of prospective
jurors and the race and gender of jurors selected for a designated number of
civil jury trials for a two-year period beginning in June 2003 and submit those
statistics to the Division of State Court Administration quarterly. (See also
Juries: Selection, Recommendation #1)
5. That trial court administrators be ordered to
keep (1) statistics of the race, gender and ethnicity of all applicants and new
hires as well as those who terminate employment, (2) statistics of the race,
gender and ethnicity of any court appointed arbitrators, special masters,
receivers, mediators and experts and (3) statistics of the race, gender and
ethnicity of persons employed by the courts as of February 1, 2002. These
statistics should be submitted quarterly to the Office of State Court
Administration beginning in September 2003. (See also Court as an
Employer/Appointer: Hiring/Promotion, Recommendation #1)
6. The Task Force recommends that surveys be
developed to determine whether the statistical disparities involving the number
of women in the judiciary and at partnership level in law firms is related to
their time out of law school or other factors. (See also Legal Profession:
Hiring and Promotion, Recommendation #4)
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