Race and Ethnic Fairness
State:
Committee/Report Name: The Minnesota Supreme Court Task Force on Racial Bias in the Judicial System was created in December 1990 and published its final report in May 1993. (KFM5908 .M56 1993)
Number of Committee Members: 37 task force members
Number of Subcommittees: 5 Subcommittees
Access, Representation and Civil Law
Criminal Process
Data Collection
Editorial
Juvenile and Family Law
Chair/Co-Chairs: Honorable Rosalie E. Wahl, Associate Justice,
Methods Used: The methodologies used included the commissioning of research studies, interviews, and public hearings at nine sites across the state. In addition questionnaires were sent to all 261 trial court judges and referees, over 4,000 attorneys, 860 victim services providers, and nearly 1,000 probation officers.
Topics and Recommendations
Perception
Findings
1. People of color often choose not to go to trial because of the perception that they will not receive a fair trial.
Access
Findings
1. Citizens with limited English speaking skills have the same rights and protections as any other citizen involved in the court system in both civil and criminal matters. It is imperative that these individuals understand fully their rights and responsibilities.
2. Currently there are no uniform standards for the training of language interpreters.
3.
4. Public defenders and county attorneys do not have adequate interpreters available to assist them with non-English speaking defendants, victims, and witnesses.
5.
Recommendations
1. The Supreme Court should recommend and the Legislature should establish and fund a State Board for Interpretive Services to propose standards and procedures for the training, professional conduct, certification, qualification, testing and adequate compensation of certified interpreters. In establishing standards and qualifications, the Board should consult with the affected communities. If such a Board is not recommended or established by the Legislature, the Supreme Court should establish an equivalent board.
2. The Legislature should define the term “qualified interpreter” to be a person who is certified by the state board for interpretive services.
3. The Supreme Court should recommend and the Legislature should establish a comprehensive statutory basis for providing adequate court interpretation and legal translation services for all people in need of interpreters. (Existing statutory provisions for the deaf and hearing impaired may serve as a model.)
4. The Supreme Court should adopt uniform standards to govern all phases of all interpreted court proceedings and determine responsibilities for paying the related costs.
5. The Supreme Court should adopt a policy that requires all judicial forms and documents used by people involved in court proceedings to be drafted in easily translatable English and to be translated into such additional languages as the state court administrator approves. All such translations are to be made by approved legal translators, and should be printed at levels of quality equal to that of the corresponding English versions.
6. The Supreme Court should adopt policies and programs to orient and sensitize all court personnel who deliver services to people in need of interpreters with regard to the importance and complexities of communicating with people of diverse linguistic and cultural backgrounds. This orientation should include instruction regarding techniques for working with a court interpreter as well as how to develop a better “ear” for communicating with people whose English may be heavily accented.
Findings
1. Tribal courts are often not recognized in court proceedings.
Juries
Findings
1. Jury pools rarely are representative of the racial composition of a community.
2. People of color have a general distrust of the criminal justice system and exclusion from jury services fosters that distrust.
3. The ethnic, racial and sexual makeup of a jury affects the outcomes of cases.
4. Grand and petit juries need people of color to truly reflect the whole community if the jury’s verdict is to reflect the community’s judgment.
Recommendations
1. Jury Management Rules should be amended to require that source lists for juries be expanded to include tribal eligible voter lists and lists of recently naturalized citizens.
2. Public education programs should be prompted to increase awareness about the purpose and function of the grand and petit juries.
3. The trial courts should educate themselves about the U.S. Supreme Court Batson decision and related cases, with an eye towards strict enforcement regarding preemptory challenges. Because of the cultural diversity of our community and bias held by many members of the community, the lawyers should be given ample opportunity to inquire of jurors as to racial bias.
4. The
Recommendations
1. Measures should be adopted to decrease the impact of hardships on potential jurors. For example, judicial districts should pay for drop in daycare for jurors who normally are not daycare users.
Courtroom Experience
Findings
1. Sometimes judges do not take minorities, defendants and non-defendants, seriously or treat them with respect.
2. Parties asserting Native American treaty rights encounter general hostility from non-Indian judges, attorneys and other justice system officials. (See also Courtroom Environment: Court Staff, Finding #1; Courtroom Environment: Lawyers/Jurors/Others, Finding #2)
Findings
1. Parties asserting Native American treaty rights encounter general hostility from non-Indian judges, attorneys and other justice system officials. (See also Courtroom Environment: Judges, Finding #1; Courtroom Environment: Lawyers/Jurors/Others, Finding #2)
Findings
1. Prosecutors sometimes make disparaging remarks about people of color in the presence of defendants.
2. Parties asserting Native American treaty rights encounter general hostility from non-Indian judges, attorneys and other justice system officials. (See also Courtroom Environment: Judges, Finding #1; Courtroom Environment: Court Staff, Finding #1)
Quality
of Legal Representation
Findings
1. Public Defenders, whose client loads are top-heavy with people of color, are sometimes seen by people of color as uncaring and disparaging. They often cannot give their cases the time and attention they require.
2. While
making up only 6% of
3. The lack of resources for legal aid programs is a major barrier to access to representation for people of color.
Recommendations
1. The state and counties should improve the public defender system by:
a. Increasing the level of funding.
b. Adopting
and funding the
2. The Legislature should appropriate a higher level of funding to legal aid programs to enable them to increase legal representation for people of color, particularly with respect to family law, housing, public benefits, immigration, discrimination, and education matters.
3. The Supreme Court, the Minnesota State Bar Association, Minnesota Minority Lawyers Association, other minority law associations, and legal aid providers should strengthen their commitment to motivating private attorneys to provide pro bono or reduced-fee services, or otherwise financially support representation to people of color.
Legal Profession
Recruitment/Acceptance
to law school
Findings
1. There is insufficient information to determine how applicants to the bar from communities of color fare in comparison to white applicants with respect to pass/fail rates on the bar examination.
2. Common perceptions exist in the legal community that minority applicants are discriminated against in the test administration or grading process. These must be addressed through further study.
Recommendations
1. The
2. The Supreme Court should study the bar examination process to determine if any of the following specific areas of concern affect pass fail rates: English as a second language; unequal quality of education received prior to law school; financial status (i.e. needing to work during law school and during preparation for the bar); availability and/or efficacy of minority-focused tutoring programs; possible bias in some elements of law school curricula; possible bias in private bar preparation program curricula; the impact of poverty; the particular law school attended, LSAT scores, law school rank, etc.
3. The Board should make every effort to hire more minority graders and should continue to seek bar exam questions from minority law professors.
4. The Board should review the training of graders and include cultural diversity issues in its training. Graders’ performance should continue to be reviewed for grading disparities.
Findings
1. Minority attorneys are seriously underrepresented in both prosecution and criminal defense offices across the state.
2. Investigative personnel, who influence attorneys’ perceptions of the strength of their cases—on both sides—are predominately white.
3. It appears that few employers take adequate steps to recruit, hire, retain, and promote minority attorneys.
Recommendations
1. Prosecution and defense offices should take all necessary steps to improve the recruitment, retention, and promotion of people of color.
2. These efforts should extend to support personnel and victim advocates whose views shape attorneys’ perceptions of their cases.
3. A model recruitment policy and program for law firms and other employers to use in hiring and recruiting minority attorneys should be developed my the MMLA and other minority bar associations in conjunction with the MSBA.
4. The MMLA and other minority bar associations in conjunction with the MSBA should provide recruitment and hiring practices seminars and materials to assist law firms and other employers in adopting racially neutral hiring practices. These seminars should be CLE approved.
5. Law firms and other employers should internally review their mentor relationships and systems to make sure that adequate mentoring programs are available to minority attorneys.
Education
Recommendations
1. The Supreme Court should require all judges, court administrators, clerks, probation officers, attorneys, social workers, bailiffs, and other court personnel to receive training on victims’ rights as well as cultural diversity training. (See also Education: Court Staff, Recommendation #1; Education: Lawyers, Recommendation #1)
2. All current judges, attorneys, social workers, guardians ad litem, and other court personnel should receive education and training to increase their sensitivity to cultural and racial issues, including training in the provisions of the Indian Child Welfare Act and Native American treaty rights issues. (See also Education: Court Staff, Recommendation #2; Education: Lawyers, Recommendation #3)
Findings
1. Little emphasis is placed on providing predominately white justice system employees with the training needed to help them understand and respond appropriately to the cultures and communities of the people of color with whom they are involved.
2. The poor representation of people of color and inadequate training combine with other systemic problems to create common instances of biased and insensitive treatment and patters of adverse impact on minorities involved in the justice system.
Recommendations
1. The Supreme Court should require all judges, court administrators, clerks, probation officers, attorneys and other court personnel to receive training on victims’ rights as well as cultural diversity training. (See also Education: Judges, Recommendation #1; Education: Lawyers, Recommendation #1)
2. All current judges, attorneys, social workers, guardians ad litem, and other court personnel should receive education and training to increase their sensitivity to cultural and racial issues, including training in the provisions of the Indian Child Welfare Act and Native American treaty rights issues. (See also Education: Judges, Recommendation #2; Education: Lawyers, Recommendation #3)
Findings
1. There is very little cultural-diversity training required of prosecutors, defense lawyers and investigators on both sides.
2. There is a lack of multi-cultural skills training in specific areas, for example, how to prepare a minority defendant or victim to testify as a witness.
3. Ethical standards applicable to lawyers on both sides have generally been silent on issues relating to racial bias.
Recommendations
1. The Supreme Court should require all judges, court administrators, clerks, probation officers, attorneys and other court personnel to receive training on victims’ rights as well as cultural diversity training. (See also Education: Judges, Recommendation #1; Education: Court Staff, Recommendation #1)
2. Statewide
organizations such as the County Attorneys Association, State Board of Public
Defense, Criminal Justice Institute, and
3. All current judges, attorneys, social workers, guardians ad litem, and other court personnel should receive education and training to increase their sensitivity to cultural and racial issues, including training in the provisions of the Indian Child Welfare Act and Native American treaty rights issues. (See also Education: Judges, Recommendation #2; Education: Court Staff, Recommendation #2)
Findings
1. Many people of color being brought into the judicial system do not understand nor do they receive an adequate explanation of their rights and resources available to them.
Civil and Family
Findings
1. People of color experience a disproportionately large number of civil legal problems due to racial discrimination and poverty.
Findings
1. The juvenile justice system fails to elicit data on the racial and cultural background of children brought into the system, which thwarts the proper application and enforcement of laws designed to protect the heritage of such children.
2. There is an urgent need for family based services to prevent the disproportionate removal of minority children from the home.
3. Children from communities of color are grossly overrepresented in the foster care system.
4. There is a systematic failure to comply or to document compliance with laws regarding protection of racial or cultural heritage in foster care placement.
5. There is a failure to engage affected communities of color in the foster care placement process, including a failure to recognize functional and significant relationships within their families.
6. A significant percentage of attorneys, judges, and court personnel are unfamiliar with the Indian Child Welfare Act and the Minority Heritage Preservation Act.
Recommendations
1. The Department of Human Services should develop a written notice of rights that social service workers must provide in appropriate languages to parents or custodians at the earliest possible time, such as the initial meeting or at an emergency removal, which will explain to the family their legal rights, and also refer the family to the appropriate ombudsperson and any other appropriate service or agency. In the case of Native Americans, this must include the right to have the tribe intervene and the right to have the matter brought to a tribal court.
2. The
Legislature should develop and fun full-time, culturally specific independent
minority legal advocacy programs statewide, such as the
3. The Courts should more actively pursue recruitment and retention of minority guardians ad litem on a statewide basis and all guardians should be adequately compensated.
4. The Legislature should redirect state resources from out of home placement programs to family and community based programs, including culturally specific placement alternatives, to the greatest extent possible without endangering the ability of the state to meet the appropriate needs of the children.
5. The Department of Human Series should increase recruitment and licensing of foster care families within communities of color and state aid should be available to bring relative placement homes into compliance with state licensing requirements, where denial is based upon grounds other than personal fitness.
6. The Legislature should establish foster care associations, independent of, but under the auspices of, the various minority councils within each community of color. Such associations should include foster care providers and serve as part of the licensing recruitment and review process of the Department of Human Services. Adequate state funding should be provided for such associations.
Criminal Justice
Findings
1. In Hennepin County, people of color are arrested and charged at levels far in excess of their percentage of the population. They are also much more likely to have their cases dismissed when compared to whites.
2. Prosecutors
in
3. No
statistical information is available to determine if
4. Law
enforcement agencies in
5. State law does not require affirmative action efforts by local law enforcement agencies and no state agency monitors their affirmative action efforts.
6. Citizens across the state perceive that the procedures for making complaints against law enforcement officers are inaccessible, difficult to understand or nonexistent.
7. The hiring, initial training and continuing
education of police officers does not effectively provide officers with the
communication skills and cultural awareness to serve diverse
Recommendations
1. The Supreme Court, through a future Community/Law Enforcement Relations Commission should conduct a statewide study of all law enforcement and county and/or city attorney offices’ arrest and charging policies and procedures to determine if people of color are disproportionately arrested and charged on an insufficient basis.
2. The Legislature should require that all law enforcement agencies, country and/or city attorney offices keep statistics regarding annual arrests by type of offense, with a breakdown by municipality, race, age, gender and dispositions.
3. The Legislature should require each county attorney’s office to compile statistics concerning the race, age, and gender of citizens forfeiting property to the police. The State Auditor should publish this information in an annual Forfeiture Accounting Report.
4. The forfeiture statute should be amended to establish a $300 minimal threshold value of property to be forfeited as described in Minn. Stat. § 609.5314. Forfeited non-contraband property should be returned to those people who are arrested and not charged as well as to those people who are charged but not convicted of an offense.
5. The Supreme Court should establish and the Legislature should fund an initiative to develop long term plans to address problems in minority community-police relations.
6. Police recruitment, education and in-service training must be reoriented to ensure that officers have the skills needed to interact effectively and supportively with the diverse communities whom they serve. Innovative “real world” rather than classroom bound programs to provide officers with the experiences necessary to interact effectively with communities of color should be developed.
7. The Legislature should require that a significant percentage of forfeiture funds be used to fund programs, such as summer jobs in law enforcement, to encourage minority youth who are interested in pursuing law enforcement careers.
8. The POST Board should develop programs in management training on diversity issues for supervisory personnel which specifically address recruiting and managing a culturally diverse workforce and assuring that law enforcement services are delivered fairly and equally throughout a culturally diverse community.
Findings
1. Many people of color and a significant percentage of prosecutors, judges, and public defense lawyers perceive the court system as biased against people of color in the setting of bail and pretrial release on a statewide basis.
2. Extensive
studies have shown that race of the defendant is a statistically significant
factor when offense severity level is held constant in the setting of bail and
pretrial release in
3. Racial disparity occurs at a number of points in the release process:
a.
b. People
of color are being held in custody prior to trial in
4. Bail
evaluations based on objective criteria are not conducted in over 40% of
5. The
modified VERA scale, formally used in
6. There is tremendous variation among victim advocacy services (where they exist at all) throughout the state. Variation, and in many cases, the complete lack of these services, affects charging, negotiation, and sentencing practices.
7. Prosecutorial offices have few, if any, written standards on plea negotiation.
8. Some judges and attorneys believe that the
race of the defendant and victim affect plea bargaining in
Recommendations
1. Prosecutors, judges, and bail evaluators should be mandated to attend cultural diversity training as well as special skills straining in the area of racially and culturally neutral bail determinations.
2. Prosecutors and police officers should be sensitized to the issue of summons/tickets being disproportionately sent to whites, and the criteria for being mailed a summons or ticket should be examined to ensure they are race neutral.
3. The Hennepin County Pretrial Services Point Scale should be used by prosecutors, judges, and evaluators as a model in developing neutral pretrial release tools based on factors which relate only to pretrial failure to appear and risk of pretrial crime.
4. Each county should be required to conduct bail evaluation/supervisory release studies.
5. The Supreme Court Advisory Committee on Rules of Criminal Procedure should amend Rule 6.02 to expressly authorize the posting of a refundable ten percent (10%) of the face value of an unsecured bond to the court. This procedure would be consistent with the federal system and Rule 341 (g)(2) of the Uniform Rules of Criminal Procedure (1987) and Standard 10-5.3(d) of the American Bar Association Standards for Criminal Justice (1985).
6. Supervisors of prosecutors and defenders in every jurisdiction should discuss with their staff attorneys the potential for race influencing plea bargains.
Findings
1. Probation officers are disproportionately white in comparison to their clientele.
2. More training for probation officers on cultural sensitivity skills is needed.
3. There are not enough culturally-specific/sensitive treatment programs to meet the need.
4. There appear to be racial disparities in sentencing recommendations which may point to bias in the presentence process.
5. There are racial disparities in the likelihood of service presentence jail time, as well as in the length of total jail time served when pretrial jail time is included.
6. There
is racial bias in sentencing in
7. Certain criminal legislation has a disparate impact on people of color.
Recommendations
1. Counties should hire more probation officers who are people of color. (See also Court as an Employer/Appointer: Hiring/Promotion, Recommendation #2)
2. The Supreme Court should encourage the creation of more culturally specific treatment programs, and probation officers and judges should be encouraged to divert appropriate people of color into such programs.
3. Counties should hire and encourage contracted service providers to hire more chemical dependency assessors who are people of color. (See also Court as an Employer/Appointer: Hiring/Promotion, Recommendation #3)
4. Judges and probation officers should be mandated to attend cultural diversity training as well as special skills training in the area of racially and culturally neutral sentencing determinations.
5. The
6. Each judicial district should implement a continuing program for diversion of first time drug offenders into treatment. For people of color, when possible, the treatment should be culturally specific/sensitive. Monitoring should be done by the chief judge of the judicial district with periodic reporting to the chief justice.
7. The appropriate legislative committee(s), where practicable, should review legislation for any differential treatment which could result from enforcement. Without such review for discriminatory impact, unintended but nevertheless racially biased outcomes can result.
8. The
9. The State Court Administrator’s Office in conjunction with the Sentencing Guidelines Commission should study and evaluate sentencing disparities in order to identify and eliminate those based on race.
Findings
1. People of color had consistently higher imprisonment rates compared to whites in the categories of aggravated robbery, criminal sexual conduct, weapons offensives, and second degree assault commitments.
2. People of color were more likely than whites to have a jail sentence imposed even though they were convicted of the same offense and had similar criminal histories.
Court as
employer/appointer
Recommendations
1. Each office responsible for hiring prosecutors, public defenders, law clerks, court reporters and other court personnel should actively recruit and hire more people of color for these positions.
2. Counties should hire more probation officers who are people of color. (See also Criminal Justice: Outcomes, Recommendation #1)
3. Counties should hire and encourage contracted service providers to hire more chemical dependency assessors who are people of color. (See also Criminal Justice: Outcomes, Recommendation #3)
4. All job applications, tests, and oral examinations should be modified to allow applicants an opportunity to demonstrate they posses the ability to work with and understand others in a culturally and racially diverse community.
5. Similarly, candidates for promotion should be required and given the opportunity to demonstrate the ability to create and/or manage a culturally diverse workforce.
6. The ability to communicate in a foreign language should be considered a preferred or required qualification; which would depend upon community needs and agency resources.
7. Expanding existing ties with the communities the justice system serves is essential. Community participation/leadership should be a preferred qualification for hiring/promotion at all levels. Involvement in minority communities is a plus.
8. Various agencies within the system should be required to have affirmative action programs as recommended in other sections of this report.
Recommendations
1. More minority judges should be appointed to the bench.
Findings
1. The failure of the justice system to keep sufficient and accurate race-specific data has the effect of wrongly shifting the burden of proving the juvenile justice system operates in a biased manner to the minority defendants is processes.
2. Communities of color are distrustful of the juvenile justice system and that distrust is based upon actual and perceived bias, including the absence of minority personnel within the system itself. Many people of color perceive white system personnel as indifferent or hostile to cultural differences.
3. Minority juveniles are detained at a significantly higher rate than whites, and detention has a direct relation to the seriousness of the disposition.
4. Minority
first-time offenders are removed from the home in greater
5. Even where alternatives to removal are available, few of these alternatives offer culturally specific programs to help minority juveniles.
Recommendations
1. The Supreme Court should require courts to collect accurate race-specific data on all people being brought into juvenile court.
2. All state and local agencies should make significant efforts in the recruitment, training, retention, and promotion of minority personnel within the juvenile justice system. These efforts should be directed toward providing personnel in proportion to the client community, and not be based solely upon demographic representation of communities of color in the population at large.
3. The Department of Corrections should develop objective detention criteria for use in all detention decisions. The State Public Defenders Office should develop procedures for challenging the detention decision; and the Legislature should develop and fund alternatives to detention for minority juveniles.
4. The Legislature, in cooperation with affected state agencies and local government, should develop and fund culturally specific programs for minority youth for both in-home and out-of-home placements which will emphasize the acquisition of skills most needed by minority juveniles in order to give them the best possible chance at rehabilitation and prevent their return to the juvenile justice system.
5. The Courts should use great care so as not to be influenced by the pre-adjudication determination in making a final disposition. This merits further study by the Juvenile Justice Task Force of the Supreme Court.
6. All appropriate state and local agencies should make significant efforts in the recruitment, training, retention, and promotion of minority personnel within the juvenile justice system. In particular, in the case of delinquency, minority probation officers are in a better position to understand the juvenile in the social context of his or her community and to make more informed recommendations on an appropriate disposition.
7. The Legislature should authorize and fund a task force to comprehensively study the issue of “gangs”, including the concerns discussed above with input form all affected constituencies, including representative groups from communities of color, professional in the juvenile and criminal justice system, law enforcement official, and qualified social science experts.
Recommendations
1. The Supreme Court, through the Implementation Committee, should create a process to address complaints about issues of race involving the judiciary.
Findings
1. Little data is kept on crime victims, and generally does not include race.
2. There is little public awareness of victims’ rights.
3. There is inadequate awareness of victims’ rights in the law enforcement community.
4. Women of color who are crime victims often become victims of the justice system due to insensitive, inadequate services at every stage.
5. Given the disproportionately high number of people of color who are crime victims there are too few minority victim service providers in the system.
Recommendations
1. The state should require a victim services program in every county to be funded with state funds.
2. More minority victim service providers should be hired, retained, and promoted within the justice system.
3. The Supreme Court should require all judges, court administrators, clerks, probation officers, attorneys and other court personnel to receive training on victims’ rights as well as cultural diversity training.
4. State law should require the collection of data on the race of victims in police incident reports and on the Sentencing Guidelines’ worksheets.
Findings
1. Racial bias incident reports have increased faster than reports of any kind since 1988 when records started being kept.
2.
3. Even though the POST Board is required to offer a course on identifying and responding to bias-motivated crimes, police officers are not required to take it.
Recommendations
1. The Legislature should extend the time period during which the Attorney General must provide bias crime training to prosecuting attorneys on a continuing basis.
2. The appropriate supervisory authority should subject law enforcement personnel to discipline where they fail to follow the notification requirements of Minn. Stat § 611.A et seq.
3. To the extent permissible by law, the Minnesota Sentencing Guidelines Commission should amend the sentencing guidelines to recognize bias motivation as an aggravating factor in felony prosecutions.
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