Race and Ethnic Fairness
State:
Committee/Report
Name: The Michigan Supreme Court Task Force on Racial/Ethnic Issues in the
Courts was established
Number of Committee Members: 19 Task Force Members
Number of Subcommittees: No Subcommittees
Chair/Co-Chairs: One Chair: Honorable Harold Hood, Judge, Court of Appeals
Methods Used: The Task Forces’ research plan included a variety of methods and sources. Information gathered from public hearings, legal research, review of transcripts and judicial opinions, analysis of court demographics, existing published and unpublished research and surveys of citizen-users, judges, court staff and lawyers created the basis for all conclusions and recommendations.
Topics and Recommendations
Perception
Findings
1. There is a perception on the part of racial and ethnic minorities and also of many non-minorities of the justice system’s discrimination and insensitivity. There is evidence that such behaviors do exist.
Access
Findings
1. Testimony and user surveys suggested that there is a perception by individuals from racial/ethnic minority groups, as well as those who used non-standard or accented English, that treatment by some clerical personnel was discriminatory, impatient or less than helpful.
2. Individuals unable to speak or understand English are effectively deprived of equal access to the courts, and, therefore, are limited in the exercise of their right to fully participate in the judicial system.
3. The translation services currently available in the court system are inconsistent from court-to-court, and in some instances, unreliable and inadequate.
4. The appearance and language of an individual impacts upon the court’s perception and treatment of that individual.
Recommendations
1. Each court should develop techniques for employees to use when handling situations involving non-standard English, uncommon dialects or accents.
2. The Supreme Court should adopt a court rule mandating and setting standard for interpretation services in civil and criminal cases where a litigant, witness or victim is unable to communicate effectively in English.
3. Court should promote outreach services in the community to provide non-English speaking populations with adequate resources to assist in understanding court processes and in competing forms.
4. Judges should determine whether interpreter services are required in a given case, and provide those services when appropriate.
Juries
Findings
1. Recent changes in Michigan Laws governing the source list from which jurors are selected have probably improved the process, resulting in more representative and inclusive jury panels. However, further improvement may be possible.
2. The experience of other states show that it is possible to enhance representative ness and inclusiveness in the jury selection process through the use of multiple source lists.
Recommendations
1.
2. Studies should be undertaken to investigate how representative and inclusive the currently available lists are, and the extent to which the excusal practices impact on the diversity of jury pools.
3. Trial judges should be encouraged to implement the Baston standard on their own initiative in any jury selection process in which peremptory challenges appear to be racially motivated.
Recommendations
1. Jury terms of service should be shortened, in those courts using a relatively long term, in order to lessen the financial impact on those who are economically disadvantaged, and to decrease the likelihood that such persons will seek excusal from jury service.
Courtroom Experience
Findings
1. The existing Attorney Rules of Professional Conduct and the Code of Judicial Conduct do not contain specific grievable provisions which prohibit gender or racially or ethnically discriminatory conduct on the part of judges, quasi-judicial officers or lawyers. (See also Courtroom Environment: Lawyers/Jurors/Others, Finding #2)
Recommendations
1. The Administrative Procedures Act (MCL 24.279; MSA 3.560 (179) Presiding Officer’s Designation, Disqualification and Inability) should be amended to prohibit such conduct by quasi-judicial officers and should provide appropriate sanctions.
2. The chief judge of each trial court, the other judges of that bench, and the Court Manager/ Administrator must establish and maintain an environment that promotes and protects equal opportunity, bias free attitudes, and fair treatment.
3. Judges, quasi-judicial officers and lawyers should be subject to a specific Judicial Canon and/or Michigan Rule of Professional Conduct precluding inappropriate gender or racial/ethnic comments or actions. (See also Courtroom Environment: Lawyers/Jurors/Others, Recommendation #2)
4. A Code of Judicial Conduct (Canon 3) should be amended to add an additional numbered paragraph under Section (A) providing that:
A judge shall not engage in sexual harassment or invidious discrimination and shall prohibit staff, court officials and others subject to the judge’s discretions and control from doing so. A judge shall prohibit sexual harassment or invidious discrimination against parties, counsel or others on the part of lawyers in proceedings before the judge.
5. General Court Rules 2.003 and 9.205 should be amended to provide for disqualification on the basis of such precluded behavior. (See also Courtroom Environment: Lawyers/Jurors/Others, Recommendation #4)
6. The disciplinary systems for attorneys and judges should actively promulgate policies and procedures designed to increase the confidence level of the public and profession regarding their response and intervention in matters related to discrimination and bias. (See also Courtroom Environment: Lawyers/Jurors/Others, Recommendation #5)
Findings
1. A minority lawyer’s ability to attract and service clients is affected by the quality of treatment afforded the lawyer by judges, court personnel and other lawyers. Testimony was received by the Task Force which indicated that minority lawyers and litigants are treated differently. The apparent ease of access that non-minority lawyers have to judges and court personnel is as detrimental to the minority lawyer as overt negative behavior.
2. The existing Attorney Rules of Professional Conduct and the Code of Judicial Conduct do not contain specific grievable provisions which prohibit gender or racially or ethnically discriminatory conduct on the part of judges, quasi-judicial officers or lawyers. (See also Courtroom Environment: Judges, Finding #1)
Recommendations
1. Just as the Michigan Rules of Professional Conduct and the Code of Judicial Conduct govern overt behaviors, effort should be made to ensure equal and appropriate access to judges and court personnel for al counsel, and to educate both judicial and court personnel on this issue.
2. Judges, quasi-judicial officers and lawyers should be subject to a specific Judicial Canon and/or Michigan Rule of Professional Conduct precluding inappropriate gender or racial/ethnic comments or actions. (See also Courtroom Environment: Judges, Recommendation #3)
3. The
It is professional misconduct for a lawyer to…
(f) Engage in sexual harassment or invidious discrimination.
4. General Court Rules 2.003 and 9.205 should be amended to provide for disqualification on the basis of such precluded behavior. (See also Courtroom Environment: Judges, Recommendation #5)
5. The disciplinary systems for attorneys and judges should actively promulgate policies and procedures designed to increase the confidence level of the public and profession regarding their response and intervention in matters related to discrimination and bias. (See also Courtroom Environment: Judges, Recommendation #6)
Legal Profession
Recruitment/Acceptance
to
Findings
1. There
is a small number of racial/ ethnic faculty at the
five
2. The absence of minority law faculty, or their minor presence, directly affects minority students by denying them role models and has an untoward effect on the quality of legal education for all students and the professional development of the law faculty.
3. Law schools have a very important role in educating future lawyers regarding the nature and impact of gender and race/ethnic bias in the profession. Law schools curricula does not adequately incorporate racial/ethnic bias and discrimination discussion into substantive courses, and it is not a part of all professional ethnic courses.
4. Education
at law schools is fundamental to deal with bias in the profession and in the
5. Racial/ethnic and gender bias issues can be integrated throughout educational curricula.
Recommendations
1.
a. Courtroom interaction: to be included in clinical law and trial practice courses;
b. Ethics: to be included in professional responsibility courses;
c. Substantive areas of the law: to be included in courses covering said areas;
d. Task Force conclusions and recommendations where appropriate should be included in extra-curricular legal activities, such as moot court programs.
2. Law schools should adopt and follow policies aimed at the recruitment, advancement toward tenure and retention of minority faculty members.
3. Textbooks, course materials and classroom presentations should be reviewed and altered where necessary to eliminate overt and subtle race/ethnic bias.
4. Faculty and administrative policies should reinforce law schools’ commitment to train attorneys who will be sensitive to and aware of manifestations of race/ethnic discrimination and its effects.
5. Professors should be taught ways to integrate race/ethnic issue discussions into a range of classes. All professional ethics classes should cover racial/ethnic bias and discrimination as it affects law practice, treatment of fellow professional and treatment of court users.
6. Law school placement offices should work with professional associations, bar organizations, and the courts to facilitate the entry of minority students into summer clerkship and other opportunities which lead to professional development.
7. Law schools should review case book and instructional materials for biased materials and introduce corrective supplemental materials.
8. Law schools should initiate programs to expand the pool of potential applicants for faculty positions to include more minorities and women.
Findings
1. Minorities cannot obtain seats on the State Bar Board of Commissioners proportional to their numbers in the profession through the elective process.
2. Sections of the State Bar have not aggressively recruited minority members, in the past.
3. The presence of minority representatives in Committees of the State Bar is a result of an aggressive policy on the part of State Bar leadership.
4. Local bar organizations may not actively recognize their responsibility to encourage and create opportunities for minority involvement.
5. The State Bar Executive Staff does not have adequate representation of minority employees.
6. Minorities have traditionally been excluded from certain areas of the legal profession. This exclusion is reflected in the low percentage of participation by minorities in private law firms, on law school faculties, with corporations, and in the judiciary.
7. Minorities experience unique difficulties in the profession related to their lack of advancement, lower hiring and recruitment, increased rate of attrition, and lack of access to processional development opportunities. Many of these problems are directly related to disparate treatment based on racial/ethnic bias.
Recommendations
1. The Supreme Court should use its appointive powers to place minorities in leadership positions and to facilitate advancement within the leadership ranks of the bar. Specifically the number of Supreme Court appointees to the Board of Commissioners should be increased by at the very least restoring the number the five. Additionally, the Court’s policy prohibiting reappointment of their appointees to the Board of Commissioners should be revised to permit appointments for at least two terms, thereby enabling appointees to run for election for State Bar office including the presidency. (See also Court as Employer/Appointer: Appointer, Recommendation #9)
2. State Bar of Michigan Bylaws should be amended to delete any requirement that a minimum number of votes be cast for any vacant position on The State Bar Board of Commissions and Representative Assembly.
3. The
State Bar of
4. State Bar presidents should be encouraged to continue their efforts in recent years to appoint minorities as committee members and chairs in substantial numbers.
5. State Bar sections must increase their efforts to recruit minority members and must aggressively pursue policies designed to increase the number of minorities serving on the section counsel and as section officers.
6. Rather than await the gradual change which will inevitably accompany a growing number of minorities admitted to practice, the State Bar of Michigan should develop methods of sensitizing local bar associations and special purpose organizations to the more subtle forms of discriminatory treatment, and by persuasion and example end them.
7. The Local Bar Liaison Committee, the “On The Road” publication, the Presidents-Elect Conference and other communications vehicles should be used to raise the consciousness of local and special purpose bar associations to the need for establishing a hospitable atmosphere for minority members.
8. State Bar efforts initiated under the leadership of its Committee on Expansion of Underrepresented Groups in the Law to encourage the Michigan Judicial Institute, The Institute of Continuing Legal Education, and other educational programs to use more minorities on its faculties should be continued. Similar efforts should be directed at State Bar sections to recruit faculty for their fall and spring seminars and their programs at annual meetings. Minorities must be adequately involved as faculty for the Michigan Continuing Legal Education program for new lawyers.
9. Every effort should be made to hire additional minorities for the State Bar’s executive staff.
10. The State Bar should adopt the recommendations contained in the ABA Task Force on Minorities in the Legal Profession report of January 1986, and provide leadership and assistance in increasing opportunities for minority attorneys within the profession.
11. The Supreme Court should publicly acknowledge and support the Michigan Minority Demonstration Project and the American Bar Association Minority Demonstration Project. The Court, when appropriate, should encourage the increased participation and expansion of such programs.
Education
Findings
1. Judicial
education programs are an effective means of dealing with bias in the
2. A substantial proportion of judges would be
interested in attending a program which would discuss the impact of bias on the
Recommendations
1. Both judges of courts of record and quasi-judicial officers should be educated about discrimination and insensitivity as a regular part of their on-going continuing legal education. Wherever possible such education should be a part of training on substantive areas of law and judging as a curriculum component of all training which is offered to the bench on a required or non-mandated basis.
2. Educational materials and guidelines should be amended and designed to identify and appropriately advise judges on problems related to racial/ethnic issues and judicial decision making.
3. Institute educational programs for judicial and court personnel to increase consciousness of race/ethnic issues. (See also Education: Court Staff, Recommendation #1)
4. The
a. The roles and responsibility of the Chief Judge and Court Administrator in personnel matters, including equal opportunity, and bias-free treatment of the public.
b. Treatment of staff, prohibition of racial/ethnic harassment, propriety of special service intimidation and stereotyping on racial/cultural basis.
5. 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 #4; Education: Lawyers, Recommendation #2)
6. Judicial education related to gender and race/ethnic bias in the courts should be a permanent component of the new judges’ seminar as well as of regional seminars and separate curricula for judges on the bench. It should be presented in at least these forms:
a. Task Forces’ findings and recommendation should be presented for all judges on the bench then for each group of new judges.
b. Courses should be developed which examine gender and race/ethnic bias as they affect court system interactions and case or controversy outcomes with particular attention to an analysis of race and sex based “stereotypes, myths, beliefs and biases that may affect judicial decision making” in numerous spheres which affect litigants.
c. New and existing courses on substantive areas of the law should be continually updated from the perspective of gender and race/ethnic issues.
7. The Michigan Judicial Institute and professional associations should ensure that all educational components are sensitive to the issues of race/ethnic and gender bias by adopting standards which address the following items:
a. Gender-race/ethnic neutral materials
b. Inclusion of women and racial/ethnic minorities as committee members, planners, faculty and speakers.
c. Impact of race/ethnic or gender bias on issues related to substantive law areas.
Findings
1. Education of court personnel is necessary to
deal with bias in the
Recommendations
1. Institute educational programs for judicial and court personnel to increase consciousness of race/ethnic issues. (See also Education: Judges, Recommendation #3)
2. The
a. The roles and responsibility of the Chief Judge and Court Administrator in personnel matters, including equal opportunity, and bias-free treatment of the public.
b. Treatment of staff, prohibition of racial/ethnic harassment, propriety of special service intimidation and stereotyping on racial/cultural basis.
3. Courts must educate staff on their responsibility to treat all members of the public and officers of the court fairly. Such treatment must avoid the appearance of discrimination.
4. 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: Judges, Recommendation #5; Education: Lawyers, Recommendation #2)
5. Regular training should be conducted fro court employees on the issues of gender and race/ethnic bias and their relation to the proper function of the court.
6. Faculty used in educational components should be trained regarding relevant issues of ethnic and gender bias.
Findings
1. Attorney education is necessary to deal with
bias in the profession and the
Recommendations
1. Attorneys should be educated about these issues as a regular part of their on-going Continuing Legal Education. Wherever possible such education should be a part of training on substantive and procedural areas of law as a curriculum component of all training which is offered to the bar on a required or non-mandated basis.
2. 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: Judges, Recommendation #5; Education: Court Staff, Recommendation #4)
3. All entities which provide education for attorneys should be encouraged to:
a. Include in ethics courses the nature and impact of gender and race/ethnic discrimination and bias on the profession. There should be an aggressive program of education regarding amendments proposed to the Michigan Rules of Professional Conduct, the Code of Judicial Conduct, and any other ethic amendments proposed to prohibit race/ethnic and gender bias, and the consequences flowing from violation of these provisions.
b. Include components regarding the nature and impact of race/ethnic and gender discrimination and bias in a course in the mandatory continuing legal education currently being developed by the Standing Committee on Continuing Legal Education of the State Bar of Michigan, pursuant to State Bar Rule 17.
c. Establish an educational standard which assures that all educational components are sensitive to the issues of race/ethnic and gender bias by addressing the following items:
1. Race/ethnic-gender neutral materials
2. Inclusion of women and racial/ethnic minorities as planners, faculty, and speakers.
3. Impact of race/ethnic and gender bias on issues related to court system interaction and case or controversy outcome.
d. Upon adoption of mandatory continuing legal education, adopt the above standard as a requirement for accreditation.
4. All entities which provide education including publication of literature for attorneys should review such literature to make sure it does not reflect race/ethnic or gender bias.
Recommendations
1. Conclusions and recommendations of the Task Forces’ report should reach the public through the press and other media. Task Force members should actively seek out avenues such as meetings of groups, associations and commissions to speak on conclusions and recommendations of the Reports.
Civil and Family
Recommendations
1. Increase the amount of participation by the trial bench in pre-trial stages of litigation, with heightened race/ethnic consciousness. (See also Criminal Justice: Pretrial, Recommendation #1)
2. Increase the number of racial/ethnic minorities in the alternative dispute resolution process. (See also Criminal Justice: Pretrial, Recommendation #2)
Criminal Justice
Findings
1. 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. These perceptions are based on the belief that:
a. Broad discretion is exercised in the hands of white male prosecutors.
b. Warrants are sometimes issued for inappropriate police searches which target minority populations without probably cause.
c. Minority people are more likely to be charged with a more serious crime than non-minority people for similar offenses and records.
d. Minority defendants are more likely to be pressured into plea-bargaining by the use of multiple charges.
e. Dispositional alternatives to trial, including plea-bargaining opportunities are disparately available between minority and white defendants.
2. The Pretrial Release Rule 6.110 creates a social stability index for the granting of bail which disproportionately impacts upon minorities by stressing factors such as employment, financial stability, and community ties. There is a perception that bail practices are affected by the race and ethnicity of the accused. Adequate statistical studies have not been conducted to collect information on the question of disparity in bail decisions.
3. Psychiatric examinations of minority defendants is not uniformly conducted by individuals aware of an sensitive to the socio-cultural background of the minority defendant.
4. Certain courts in the state have a practice of including police photographs in pre-sentence reports to the judge.
Recommendations
1. Increase the amount of participation by the trial bench in pre-trial stages of litigation, with heightened race/ethnic consciousness. (See also Civil and Family: Civil, Recommendation #1)
2. Increase the number of racial/ethnic minorities in the alternative dispute resolution process. (See also Civil and Family: Civil, Recommendation #2)
3. The
4. The
5. The Michigan Supreme Court should conduct a study similar to that done in the felony sentencing project of actual bail practices to investigate the question of disparity in bail practices by race, ethnicity, gender, economic class and region and to establish a process to develop recommendations in the even that disparity is statistically shown.
6. Courts and mental health agencies should create a pool of qualified forensic specialists who are aware and sensitive to socio-cultural factors in minority defendants.
7. Photographs of defendants in pre-sentence reports should be prohibited in all court systems.
Findings
1. It appears that conviction and acquittal rates may be affected by race or ethnicity of defendant and/or victim.
2. An analysis of the Michigan Sentencing Guidelines data indicates that race/ethnicity are not significant factors in sentencing when the only variables taken into account are severity of offense and prior record. This data does not address other factors which may impact upon minority populations in the system such as arrest, exercises of prosecutorial discretion, pretrial detention, and the effect of the race/ethnicity of the victim and the adjudicator. The Sentencing Guidelines project has been asked to analyze the incidence of departure from guidelines as it relates to minority populations. This data has not been made available to the Task Force.
Recommendations
1. The
Sentencing Guidelines project should continue to monitor the sentencing
practices of
a. Misdemeanor convictions and sentences
b. Race, ethnic background and gender of judge
c. Race, ethnic background and gender of victim
d. Race, ethnic background and gender of the defendant
e. All judges should receive an analysis of their own sentencing practices on an annual basis.
Court as an
employer/appointer
Findings
1. A review of court employment demographics shows that minorities are under-represented in professional and administrative positions which exercise authority and determine or recommend policy.
2. Many courts lack formal personnel policies and procedures that would promote an environment in which equal opportunity is protected, bias free attitudes and treatment are encouraged, and invidious discrimination prohibited.
3. The justice system involves numerous participants who are not judges, quasi-judicial officers, or court employees, but who are public servants: Attorney Generals, Prosecutors, Public Administrators, ad Disciplinary Systems. The absence of representative numbers of minorities in these positions affects the confidence in and the effectiveness of the system.
4. There are few instances in the
Recommendations
1. Each Court should develop written personnel policies and procedures which include, but are not limited to an equal opportunity, recruitment, promotional procedures and disciplinary policies. Of particular importance is the fact that employee grievances must be disposed of expeditiously and fairly.
2. The State Court Administrative Office annual survey of Court Employee Compensation should include a section which identifies the existence of such policies, their implementation, and the results achieved, as well as other matters relating to equal opportunity hiring and promotion.
3. Each Court should provide for the training of its supervisors and managers in personnel management issues, including the importance of fair and equitable practices in promotion, discipline, and job assignments.
4. The appointing authorities should increase the representation of racial/ethnic minority populations in policy-making positions in the offices of the Attorney General, State Public Administrators, Prosecutors offices, and Disciplinary systems.
5. Increase the number of minorities hired as law clerks, judicial assistants, and commissioners at all levels of the judiciary, but particularly the appellate level.
Findings
1. In determining the access of minority attorneys to court appointments, there is evidence that minority attorneys do not receive an equitable share of the available appointments in every jurisdiction of the State, nor do they have the same access as majority attorneys to cases which are more serious in nature, higher profile or more economically rewarding.
2. Mediation panels, arbitrators and special masters do not include a representative number of minority participants.
Recommendations
1. Courts should be required to maintain records of all appointments to fee-generating positions by type of position, race/ethnicity of the appointee and the amount of fee eventually generated. This data should be reported to the State Court Administrators Office on a regular basis. These appointment records should include all indigent defense appointments, guardian-ad-litem, next friend, special fiduciary, and all other court –appointed counsel whether or not fees are paid from public moneys or other sources.
2. Bar Associations should develop mechanism for educating the local bench about the availability and qualifications of minority attorneys for appointment. This can include sponsoring opportunities for judges to meet and participate in social, educational and professional activities with minority attorneys; the identification of qualified minority attorneys available for appointments in multi-county districts; and the sponsoring of special informational programs by the bar to discuss the barriers to full participation of minority lawyers in the appointment process.
3. Courts should also develop and sponsor outreach programs to encourage minority attorneys to accept appointments in districts where there are no longer minority practitioners. These programs may include special compensation for mileage when extensive travel is required and creation of local initiatives to assure that minority attorneys are afforded full and equal access to the benefits of the profession.
4. The number of minorities appointed to mediation panels should be increased through the use of the following mechanisms:
· Consistent, established objective criteria for appointment;
· A clear, advertised and available application process
· Public access to mediation statistics profiling selection and panels; and
· Inclusion of minority representatives as plaintiff, defense, and neutral mediators
Courts should monitor any agencies to which they refer cases for mediation for racial and ethnic diversity and should decline referrals to any agency which does not fairly utilize mediators from racial and ethnic minorities. Where mediators are routinely appointed by individual judges, efforts should be made to report and review those appointments based upon the same considerations.
5. To the extent that courts, either by practice or Court Rule, refer cases to Alternative Dispute Resolution, assignments as mediators, arbitrators or special masters shall be accessible to counsel regardless of race, ethnicity or gender. The referring court or judge has the affirmative obligation to ensure that any private agency receiving such assignments utilizes lawyers from racial and ethnic minorities and from both genders.
6. Appointing agencies should establish standards for conduct of mediation panels, arbitrators and special masters and make these individuals aware that discrimination is not acceptable in any form or manner in the discharge of their duties.
7. Courts, through their Chief Judges, should appoint referees, magistrates, and quasi-judicial personnel in numbers which accurately reflect the racial/ethnic demographics of the population they serve.
8. The appointing authority should increase the representation of racial/ethnic minority populations in quasi-judicial positions.
9. The Supreme Court should use its appointive powers to place minorities in leadership positions and to facilitate advancement within the leadership ranks of the bar. Specifically the number of Supreme Court appointees to the Board of Commissioners should be increased by at the very least restoring the number the five. Additionally, the Court’s policy prohibiting reappointment of their appointees to the Board of Commissioners should be revised to permit appointments for at least two terms, thereby enabling appointees to run for election for State Bar office including the presidency. (See also Legal Profession: Hiring and Promotion, Recommendation #1)
Findings
1. Minority presence is inadequate both in numbers and in terms of geographic distribution on the benches of the State.
2. The Departments of Social Services and Correction have significant minority service populations, but very few minority Administrative Law judges. This disparity affects the perception of fairness.
Recommendations
1. Progress must be continued toward a representational bench throughout the State through the appointive authority, and by the support and recruitment of minority candidates for the bench.
National Center for
State Courts
300 Newport Avenue
Williamsburg, VA 23185
Phone (800)616-6109 Fax (757)564-2022
Questions or Comments - email research@ncsc.dni.us
Copyright © 2004 The National
Center for State Courts. All Rights Reserved.