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Race and Ethnic Fairness

State: Louisiana

Committee/Report Name: The Louisiana Task Force on Racial and Ethnic Fairness in the Courts was created in the summer of 1993 by the Supreme Court of Louisiana. The final report was published in January 1996. (KFL508 .L68 1996)

Number of Committee Members: 25 Task Force members

Number of Subcommittees: No Subcommittees

Chair/Co-Chairs: Two Co-Chairs: Honorable Ulysses Gene Thibodeaux, Judge, Court of Appeal, Third Circuit and Honorable Max N. Tobias, Jr., Judge, Civil District Court.

Methods Used: The Task force elected to approach its mission through an innovative strategic planning process called “visioning.” The operative philosophy of the visioning approach is that racial and ethnic fairness is an ideal to be reached and that courts ought to be making continuous improvement towards that ideal. The visioning approach avoids any potential problems of defensiveness or denial of blame in evaluating problems, and instead establishes a clear and compelling set of standards, goals, or ideals which motivate continuous improvement and address prevention as well as remediation.

Four types of data gathering were used by the Task Force in identifying issues, problems, and concerns. These techniques included a literature search, a self administered questionnaire, public hearings, and opinion polls.

Topics and Recommendations

Perception

Public

Findings

1. The number of people who believe that unfair practices exist in Louisiana courts is significant and warrants concern and attention. The system must not only be fair; it must appear to most persons to be fair if courts are to function properly and fulfill their mission in society. Such unfairness is believed to exist in Louisiana especially with respect to: incivility and insensitivity on the part of judges and court personnel, criminal sentencing, the ward of civil judgments, the representation of juries, and pre-trial release.

2. Many of the cultural attitudes and institutional practices within the Louisiana court system, for example, the legacy of political patronage, traditions of separatism in education, narrow networks of selection, etc., contribute unintentionally to the perception, if not the existence, of racial and ethnic unfairness in the courts.

3. Effective communications between the courts and racial and ethnic minorities is generally absent in the Louisiana court system. This lack of effective communication, both internal and external, contributes in part to the perception of unfairness and inequity. If minorities do not adequately understand the judicial system and their rights and responsibilities within it, they may tend to believe that the system is opposed to them because of their race or ethnicity.

4. The social and professional isolation of judges and other court personnel from persons who may not share the same culture or ethnicity is a significant underlying problem contributing to the perception, if not the reality, of bias in the court system.

Attorneys. Judges, and Court Staff

Findings

1. Existing institutions and mechanisms, such as the Judiciary Commission, the Code of Judicial Conduct, the Judicial Council, and the Louisiana Judicial College are effective tools for developing, enforcing, and/or communicating standards designed to improve fairness and to eliminate the perception and existence of racial and ethnic bias in the courts.

Access

Language

Recommendations

1. We request that the Louisiana Legislature provide for the certification of bilingual court interpreters by defining their educational requirements, their use in court proceedings, and the amount of fees to be assessed as court costs for their use.

2. We request that the Supreme Court of Louisiana develop and promulgate a rule requiring bilingual signage and other information in courts servicing large numbers of persons who have a limited understanding of English.

Economics

Findings

1. Socioeconomic status is a significant contributing factor to the perception, if not the reality, or unfairness in the courts. Generally persons of low economic status perceive that they are not being treated with the same respect as persons of higher economic status. For example indigent defendants complain that their cases sometimes have to wait until the end of the daily court docket to be heard. This practice, they say, not only conveys the appearance of discrimination, but also affects their ability to earn a living.

2. Some women who are poor and cannot afford day care services complain that they have to wait long hours in court while holding their children. The Task Force’s telephone surveys indicate that persons of low socioeconomic status generally perceive greater bias in the system and that such bias is generally interpreted to be racially or ethnically motivated.

Recommendations

1. We request that the Supreme Court of Louisiana develop and publicize various ways for courts and clerks of court to facilitate, in cooperation with legal aid, indigent defense, and bar association services throughout the state, pro se representation in cases involving child support, small claims, domestic relations, and judicial commitments. We request that all courts and clerks of court facilitate pro se representation in their courts by such means as they may find appropriate and cost effective.

2. We request that the Louisiana Legislature amend the Code of Civil Procedure, upon recommendation of the Law Institute, to allow notice pleading in domestic cases and in all courts of limited jurisdiction.

Other

Recommendations

1. We request that the Supreme Court of Louisiana through its Judicial Council, establish a task force for looking at ways to expand alternative dispute resolution services throughout the state.

Juries

Selection

Recommendations

1. We request that all judges and court related administrators ensure that juries are selected fairly without regard to race or ethnicity and that juries are properly trained and charged to deliberate and make judgments without prejudice and bias.

2. We request that all district judges, pursuant to Act 933 of the 1995 Regular Session of the Louisiana Legislature, require each jury commission to enlarge their pool of jurors by using mailing lists drawn from public utility lists (electricity, gas, water, and telephone), tax rolls, and motor vehicle licensing files, as well as from voter registration lists.

Treatment/Verdicts

Recommendations

1. We request that the Supreme Court of Louisiana, through the Judicial Council, purchase or develop and distribute videotapes and written brochures to judges and/or jury commissions for assisting jurors in understanding and overcoming the many forms of bias and prejudice that may affect their deliberations and decisions.

2. We request that the Supreme Court of Louisiana, through the Judicial Council, commission a study of ways to simplify and make more understandable the judge’s charge to jurors and to use the charge as a means of assisting jurors to overcome prejudice and bias in their deliberations and decisions.

Courtroom Experience

Judges

Findings

1. Most judges in Louisiana want to administer justice fairly and impartially in their courts. They also want to improve racial and ethnic fairness.

Recommendations

1. The Supreme Court of Louisiana should develop and promulgate performance measures that may be used by judges in assessing the fairness, efficiency, and effectiveness of their courts and in making continuous improvements with respect thereto.

2. The Supreme Court of Louisiana should amend the Code of Judicial Conduct to make more explicit a judge’s ethical responsibilities with respect to fairness in the courts. Among the amendments that should be considered for adoption are:

a. Personal Responsibility--The Code of Judicial Conduct should contain a clear statement requesting each judge to take personal responsibility for correcting and preventing any forms of unfairness and for continuously improving fairness in the courts.

b. Mandatory CLE--The Code of Judicial Conduct should require each judge to take three credit units of continuous legal education once every three years in the ethics of racial and ethnic fairness in the courts. Consideration should be given to allowing lifetime credit for certain intensive training courses, such as the courses offered in the past by the National Judicial College in Reno, Nevada (See also Education: Judges, Recommendation #1)

c. Prohibition Against Membership in Discriminatory Organizations--The Code of Judicial Conduct should prohibit a judge from belonging to any organization, club, or association which practices unreasonable and invidious discrimination against any individual on the basis of race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status.

d. Annual Membership Disclosure--The Code of Judicial Conduct should require each judge prior to installation and every year thereafter to disclose the names, addresses, and phone numbers of all organizations and clubs to which the judge belongs or has belonged within the past year.

3. We request all judges and court-related personnel to take personal responsibility for eradicating every vestige of racial, ethnic, and gender unfairness from their attitudes, behaviors, and organizational cultures and for communicating the vision of fairness contained in these recommendations to all segments of the public. As part of this acceptance of responsibility, we request all judges and court personnel to do the following (See also Courtroom Environment: Court Staff, Recommendation #1):

a. We request that all judges and court related elected officials sign and display the recommended Commitment to Fairness Statement in appropriate areas of their respective offices.

b. We request that all courts participate in the Voluntary Improvement Program.

c. We request that all judges, court officials, and court employees refrain from wearing or displaying emblems or symbols which may be construes by a reasonable person as indicating racial or ethnic bias, prejudice, or discrimination.

d. We request that all courts and judges respond positively and creatively to the other recommendations of this report wherever and whenever appropriate.

4. We request that all judges and court-related personnel be courteous, respectful, and culturally sensitive to all persons whom they encounter (litigants, attorneys, defendants, witnesses, jurors, court personnel, and the general public) regardless of race and ethnicity. (See also Courtroom Environment: Court Staff, Recommendation #2).

Court Staff

Findings

1. Courts generally lack a sustained institutional focus on improving racial and ethnic fairness. Court infrastructure is generally weak or non-existent. Consequently, problems tend to be addressed on an ad hoc basis and only when there is a crisis or a specific and unavoidable issue. In addition, most courts operate on the obsolete management belief that systems “have to be broke” before they can be “fixed.” Very few courts have a proactive or preventive culture of management.

2. Court personnel are generally unaware of continuous improvement management philosophies and techniques, including, for example, total quality management. Very few courts, if any, employ team-building concepts or have quality programs. Although a number of states (thirteen) have begun to study and attempt to implement Total Quality Management procedures in courts, Louisiana has not yet been part of this movement.

Recommendations

1. We request all judges and court-related personnel to take personal responsibility for eradicating every vestige of racial, ethnic, and gender unfairness from their attitudes, behaviors, and organizational cultures and for communicating the vision of fairness contained in these recommendations to all segments of the public. As part of this acceptance of responsibility, we request all judges and court personnel to do the following (See also Courtroom Environment: Judges, Recommendation #3):

a. We request that all judges and court related elected officials sign and display the recommended Commitment to Fairness Statement in appropriate areas of their respective offices.

b. We request that all courts participate in the Voluntary Improvement Program.

d. We request that all courts and judges respond positively and creatively to the other recommendations of this report wherever and whenever appropriate.

2. We request that all judges and court-related personnel be courteous, respectful, and culturally sensitive to all persons whom they encounter (litigants, attorneys, defendants, witnesses, jurors, court personnel, and the general public) regardless of race and ethnicity. (See also Courtroom Environment: Judges, Recommendation #4)

Quality of Representation

Findings

1. Litigants who are poor complain of inadequate funding of indigent defense and legal aid services in the state. Consequently, they say such legal services do not meet professional standards and result in burdensome indigent defender and legal aid caseloads, little or no support services, low attorney pay and moral, and a number of other problems.

Recommendations

1. We request that the Louisiana Legislature provide annually no less than $10 million in funding to the Louisiana Indigent Defender Board with appropriate annual adjustments for inflation.

2. We request that the Louisiana Indigent Defender Board and all district indigent defender boards continue to develop ways to improve indigent defender services throughout the state, especially in cases relating to capital defense and juvenile crime.

3. We request that the Supreme Court of Louisiana through its Judicial Council, establish a task force for developing more adequate funding of legal aid series throughout the state.

Legal Profession

Hiring/Promotion

Findings

1. We request that the Supreme Court of Louisiana, in collaboration with the law schools of the state and the Louisiana Bar Association, develop judicial mentoring and externship programs for minority law students. Such programs should be established to accomplish the following goals:

a. To assist minority law students in gaining additional knowledge, skill, and confidence.

b. To build relationships between judges and minority law students that may help judges to become more aware of and sensitive to cultural diversity and that may assist the students in securing law clerkships and other career opportunities after graduation.

c. To provide research support to judges lacking law clerks and paralegals.

Education

Judges

Findings

1. There is a lack of diversity training for judges, court personnel, attorneys, etc. within Louisiana courts. The lack of such training often results in communication and perception problems and may result in actual unfairness and bias. Cultural diversity is often ignored or misunderstood by some judges and sometimes results in the persistence of racial and ethnic misunderstanding, resentment, and miscommunication. (See also Education: Court Staff, Finding #1; Education: Lawyers, Finding #1)

Recommendations

1. The Code of Judicial Conduct should require each judge to take three credit units of continuous legal education once every three years in the ethics of racial and ethnic fairness in the courts. Consideration should be given to allowing lifetime credit for certain intensive training courses, such as the courses offered in the past by the National Judicial College in Reno, Nevada. (See also Courtroom Environment: Judges, Recommendation #2b)

2. We recommend that the Supreme Court develop, print, and distribute to all judges and court-related officials a “Guide to Bias Free Behavior in the Courts.” (See also Education: Court Staff, Recommendation #1)

3. We recommend that all judges and court-related officials direct their staffs to implement diversity training programs for their employees. We recommend that the Louisiana Judicial College offer diversity training courses as part of its curriculum for judges. We also recommend that the three branches of state government cooperatively develop common approaches to diversity training as a means of lowering costs and expanding diversity training opportunities. (See also Education: Court Staff, Recommendation #2)

Court Staff

Findings

1. There is a lack of diversity training for judges, court personnel, attorneys, etc. within Louisiana courts. The lack of such training often results in communication and perception problems and may result in actual unfairness and bias. Cultural diversity is often ignored or misunderstood by some judges and sometimes results in the persistence of racial and ethnic misunderstanding, resentment, and miscommunication. (See also Education: Judges, Finding #1; Education: Lawyers, Finding #1)

Recommendations

1. We recommend that the Supreme Court develop, print, and distribute to all judges and court-related officials a “Guide to Bias Free Behavior in the Courts.” (See also Education: Judges, Recommendation #2)

2. We recommend that all judges and court-related officials direct their staffs to implement diversity training programs for their employees. We recommend that the Louisiana Judicial College offer diversity training courses as part of its curriculum for judges. We also recommend that the three branches of state government cooperatively develop common approaches to diversity training as a means of lowering costs and expanding diversity training opportunities. (See also Education: Judges, Recommendation #3)

Lawyers

Findings

1. There is a lack of diversity training for judges, court personnel, attorneys, etc. within Louisiana courts. The lack of such training often results in communication and perception problems and may result in actual unfairness and bias. Cultural diversity is often ignored or misunderstood by some judges and sometimes results in the persistence of racial and ethnic misunderstanding, resentment, and miscommunication. (See also Education: Judges, Finding #1; Education: Court Staff, Finding #1)

Public

Recommendations

1. We request that the Supreme Court of Louisiana develop expanded public outreach efforts designed primarily to provide information to the general public about the courts and to receive public feedback on court-related issues.

2. We request that various bar associations and the courts work with schools in the expanded development and implementation of courses, parts of courses, course materials, and enrichment activities for educating young people about the law and courts.

Civil and Family

Civil

Recommendations

1. We request that all judges and court officers take steps to ensure that civil judgments are awarded fairly without respect to race or ethnicity.

2. We request that the Supreme Court of Louisiana, through the Judicial Council, commission a study to determine whether or not there are any statistically significant disparities in the award of civil judgments based solely on race and ethnicity.

3. We recommend that lawyers use the Case Debriefing Questionnaires and the other feedback mechanisms recommended to assist the Supreme Court of Louisiana in determining whether or not there are systematic disparities based solely on race and ethnicity in the award of civil judgments.

Criminal Justice

Pretrial

Recommendations

1. We request that the Supreme Court of Louisiana, through the Judicial Council, commission and publish a study for determining whether or not there are any statistically significant disparities based on race or ethnicity in the pre-trial release practices of prosecutors or judges.

2. We recommend that lawyers use the Case Debriefing Questionnaires and the other feedback mechanisms recommended to assist the Supreme Court of Louisiana in determining whether or not there are systematic in pre-trial release and sentencing disparities based solely on race and ethnicity.

3. We request that all judges and court related personnel take steps to ensure that the prosecution and adjudication of criminal cases are done fairly without regard to race or ethnicity.

Outcomes

Recommendations

Court as employer/appointer

Hiring/Promotion

Findings

1. A major contributing factor the perception, if not the reality of racial and ethnic unfairness in the court system is a style of informal management. This informal management is not conducive to the prevention of problems, continuous organizational improvement, effective communication, and meaningful complaint reception, mediation, and resolution. This is a particular problem with regard to personnel and procurement management practices.

2. Many courts are not in compliance with basic federal laws and requirements relating to the posting of notices, record keeping, written policies, and complaint procedures affecting equal employment opportunity, sexual harassment, the Americans With Disabilities Act, the Family and Medical Leave Act, etc.

3. Another major contributing factor to the perception, if not the reality, of racial and ethnic unfairness in the court system is the general lack of clear policy frameworks (e.g., written equal employment opportunity policies, formal pay plans, clear and consistent employee selection procedures, written procurement guidelines, etc.) for guiding employment, procurement, access to justice, and appointments within the judicial system.

Recommendations

1. We request that the Supreme Court of Louisiana develop and promulgate non-mandatory guidelines for assisting courts in the development of fair employment practices. These guidelines should identify:

a. All federal and state law with which the courts should comply.

b. Methods for correcting or preventing employment discrimination in the courts.

c. Methods for attaining cultural diversity within the courts.

d. Sample policy statements, checklists, training resources, and other materials useful in attaining compliance with the guidelines.

2. We request that the Supreme Court of Louisiana train and authorize audit teams to respond to courts wishing to evaluate themselves in terms of compliance with the Supreme Court of Louisiana’s Fair Employment Guidelines and applicable federal and state laws.

3. We request that each court use the Fair Employment Guidelines and Employment Compliance Audits as tools to both correct and prevent problems in employment discrimination.

4. We request that the Supreme Court of Louisiana develop aspirational guidelines for assisting courts in developing fair procurement systems. The guidelines should:

a. Recommend policies that may be followed by courts in the procurement of goods and services.

b. Provide information on how to use the state and judicial contracting system.

c. Provide a list of disadvantaged businesses.

d. Provide sample policy statements, checklists, and other materials useful to the implementation of fair procurement practices.

5. We request that all judges and court related administrators use the Fair Procurement Guidelines as tools to both correct and prevent unfair procurement practices.

Appointer

Recommendations

1. We request that all judges and court related administrators make appointments to ad hoc judgeships, judicial committees, fiduciary trusts, and other assignments in a manner that is free of all racial and ethnic bias and that is reflective of the diversity of the legal profession and the judiciary

2. We request that the Supreme Court of Louisiana take steps to ensure that its appointments of lawyers and retired judges to judgeships and its appointments of persons to committees are free of improper bias and reflective of the need for cultural diversity.

3. We request that the Supreme Court of Louisiana, through the Judicial Council, commission and publish a study for assessing whether or not improper bias exists in the appointment of lawyers to fiduciary and other positions of trust, and to make recommendations for correcting practices if such bias does exist.

4. We request that the Supreme Court of Louisiana assign judges to courts located outside of the jurisdictions from which they were elected on a regular basis for at least one month each year, as a means of minimizing political pressures on a judge and as a means of assuring a broader multicultural dispersion of the judiciary.

5. We request that the Supreme Court of Louisiana assure that a fully functioning method exists for keeping itself apprized of any patterns of complaints or private disciplinary measures against a judge for racial or ethnic unfairness. Such a system is necessary to avoid potential image problems that could arise from appointing such a judge to ad hoc assignments, committees, or positions of honor.

Judicial Selection

Recommendations

1. We request that the Supreme Court of Louisiana endorse the practice of judicial elections by sub-districts, where appropriate, as the only feasible means of ensuring diversity and ethnic heterogeneity in our judicial system.

Other Topics

Complaints and Discipline

Findings

1. Courts generally lack mechanisms for obtaining feedback on perceived problems of racial and ethnic bias in the courts. Very few courts have formal complaint mechanisms and processes for obtaining such feedback.

Recommendations

1. The Judiciary Commission and the Supreme Court of Louisiana should make the following changes in Commission procedures:

a. Confidentiality- The Judiciary Commission should disclose to the public the results of the disposition of each case which has been accepted for review and has reached the stage of final determination. It should also make its entire proceeding public after the filing and service of formal charges against a judge, except in incapacity proceedings.

b. Mandatory CLE- The Judiciary Commission should require a judge who has admitted to, or been found to have exhibited, uncivil or biased behavior toward racial or ethnic minorities to take additional continuing legal education courses in the ethnics of racial and ethnic fairness.

c. Use of Performance Assistance Teams- Whenever the Judiciary Commission, after concluding a case against a judge or a group of judges of a particular court in a confidential manner, has reasons to believe that there are systemic problems impairing racial or ethnic fairness in the affected court, the Commission may, with the cooperation of that court, utilize one of the performance assistance teams described above as a confidential fact-finding body to inform both the affected court and the Commission as to the existence and extent of such problems. If ethical violations are then discovered through such means, the Commission will allow the affected court to correct such problems through a plan of voluntary improvement approved by the Commission.

2. We request that all judges and court-related administrators develop and implement complaint and disciplinary processes for ensuring that both employees and the general public are treated fairly.

3. We request that the Supreme Court of Louisiana require by rule that all courts adopt, implement, and publicize grievance policies and procedures for addressing complaints relating to racial and ethnic fairness filed by either court employees or the general public against the courts.

4. We request that the Supreme Court of Louisiana, through the Judicial Administrator, provide, upon request, mediation services to courts which are the subject of serious complaints relating to racial or ethnic fairness which may potentially result in litigation.

5. We request that each court review at least once each year the pattern of complaints against it as a means of correcting or preventing problems of unfairness.

Measurement and Evaluation

Findings

1. The voluntary use of performance standards is generally lacking in Louisiana courts. We affirm that voluntary moral action is the best and most lasting way to achieve racial and ethnic fairness in the Louisiana court system. Accordingly, we find that a system of aspirational standards and measures is necessary and appropriate for encouraging and facilitating such voluntary action. We also find that a system of recognition and reward for taking voluntary efforts to improve racial and ethnic fairness and to prevent bias in the courts is also appropriate and necessary.

2. An affirmative moral context for addressing racial and ethnic fairness is generally lacking in Louisiana’s court system. We find no generally accepted vision of what racial and ethnic fairness in the courts is or should be. We also find no clear and articulated moral standards exists for improving racial and ethnic fairness nor is there much moral discourse regarding the issue

Recommendations

1. The Supreme Court of Louisiana should organize and train performance assistance teams, consisting of judges, clerks, court administrators, attorneys, and members of the general public to evaluate, upon request, the performance of courts based on the measures developed as part of the recommendations above. We recommend that the performance assistance teams be used in four ways:

a. As part of the Voluntary Improvement Program to assist courts, upon their request, in evaluating their performance.

b. As part of the System of Recognition and Reward, to assist the Supreme Court of Louisiana in determining court accreditation, the annual recipients of awards, and the grantees of funding from the Quality Incentive Fund.

c. As part of the Judiciary Commission’s supply of tools to correct improper judicial conduct arising from systematic discriminatory practices.

d. As part of the Compulsory Compliance Program to require compliance with the performance standards.

2. The Supreme Court of Louisiana should use the adopted Vision Statements and other appropriate materials to develop and promulgate aspirational performance standards for improving fairness, efficiency, and effectiveness in the courts. We recommend that the performance standards initially be voluntary and then become mandatory after five years.

3. The Supreme Court of Louisiana should use the performance standards and measures for guiding its efforts to improve itself continuously as a model for all other courts.

4. We request that the Supreme Court of Louisiana develop and implement a program for encouraging other courts to evaluate voluntarily the extent of their conformity to the performance standards. This should include strategies for continuously improving court performance, especially with respect to fairness.

5. We request that the Supreme Court of Louisiana develop and implement a system for recognizing and rewarding participating courts that improve court performance with respect to fairness.

6. The Supreme Court of Louisiana should develop and promulgate performance measures that may be used by judges in assessing the fairness, efficiency, and effectiveness of their courts and in making continuous improvements with respect thereto.

7. We request that the Supreme Court of Louisiana consider using one or more of the performance assistance teams described in the Measurement and Evaluation Recommendation #1 as a means of evaluating a court’s performance, whenever sufficient evidence indicates systematic problems affecting a court’s ability to correct or prevent one or more forms of unfairness. If such problems are revealed by the performance assistance teams, the Supreme Court of Louisiana should consider requiring the affected court to bring itself into compliance with the performance standards within a certain designated period of time.

8. We request that the Supreme Court of Louisiana develop and distribute case debriefing questionnaires, perhaps in the form of self-mailers, attorneys, witnesses, jurors, and other personnel involved in criminal cases as a means of soliciting and obtaining feedback on each court’s fairness in processing and adjudicating cases.

9. We request that the Supreme Court of Louisiana conduct on a regular basis opinion surveys of the general public to ascertain public perceptions of the quality, efficiency, effectiveness, and fairness of the courts.

10. We request that the Supreme Court of Louisiana train and authorize audit teams to respond to courts wishing to evaluate themselves in terms of compliance with the Supreme Court of Louisiana’s Fair Employment Guidelines and applicable federal and state laws.

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