Race and Ethnic Fairness

State: Nebraska Report 1

Committee/Report Name: The Nebraska Minority and Justice Implementation Committee was established in 2003 because of a recommendation in The Nebraska Minority and Justice Task Force Final Report.

Number of Members: 41 Implementation Task Force Members

Number of Subcommittees: No Subcommittees

Chair/Co-Chair: Two Chairs- Linda R. Crumb, J.D., Assistant to the Chancellor for Equity, Access, and Diversity Programs of the University of Nebraska-Lincoln; and John M. Gerard, J.D., judge, Nebraska Supreme Court.

Methods Used: In addition to summarizing the major findings made in the Final Report, this Report discusses the progress made by the Implementation Committee and other justice agencies and organizations since the release of the Final Report. The Implementation Committee also revised some of the recommendations of the Task Force. The changes are shown in red in the findings and recommendations below.

Revised Recommendations

Perception

Public

Findings

1. Minority group members tend to believe relatively uniformly that members of other minority groups receive unfair treatment. This is especially the case among black respondents, who are more negative about court fairness toward any minority group. Generally speaking, Native American and Hispanic perceptions closely parallel one another, with Hispanic respondents being somewhat more positive.

2. Nebraska respondents tend to have different views than the national sample. Specifically, white respondents in the Nebraska sample are less likely to believe that minorities receive unfair treatment than are whites in the national pool. Conversely, a substantially higher percentage of blacks in the Nebraska pool believe they and members of other racial and ethnic groups are treated unfairly.

Recommendations

1. Court employees, including administrators, judges, lawyers, and court personnel, should be made aware of the perceptions outlined in this study and the effects these perceptions have on the courts.

2. Significant efforts should be taken by the Nebraska State Bar Association, Nebraska Supreme Court, and Nebraska policymakers to promote legal services for Nebraska’s indigent. Specifically, the Nebraska State Bar Association should continue to actively encourage private lawyers to provide pro bono or reduced-fee services to those in need.

3. Sources should be found to fund a public service announcement (PSA) campaign designed at increasing awareness of and confidence in the courts, especially among minority groups.

Attorneys, Judges, and Court Staff

Findings

1. Minority and white Nebraska State Bar Association members and court personnel have markedly different perceptions regarding the treatment of racial and ethnic minorities by prosecutors and judges and in the overall court environment.

2. A substantial number of Nebraska State Bar Association members are more likely to believe that whites receive better treatment from the courts than do minorities.

3. Minority Nebraska State Bar Association members and court personnel are more likely than their white counterparts to believe that bias in the Nebraska justice system has remained the same or gotten worse over the past five years.

4. A substantial number of both white and minority court personnel and Nebraska State Bar Association members agreed that minorities receive different, potentially discriminatory, treatment in Nebraska’s courts; however, most Bar members and court personnel believe that Nebraska’s justice system treats minorities fairly.

Recommendations

1. The Nebraska Supreme Court should periodically direct an analysis of the decisions, disposition, and delivery of services provided by the criminal and juvenile courts of this state and by probation (such as setting of bond, sentencing, probation revocations, etc.) to determine if there are any effects on the decisions, disposition, or delivery of those services associated with treatment of race, ethnicity, gender, age or other demographic characteristics.

2. A formal education process should be designed, developed and repeated periodically by the Nebraska Supreme Court to address differences in perception between white and minority employees, and additional educational opportunities to promote diversity training and other educational opportunities as developed by the Judicial Education Committee. (See also Education: Judges, Recommendation #2; Education: Court Staff, Recommendation #2).

Access

Language

Findings

1. Data indicate that Nebraska’s demographics are quickly changing, causing an increase in the demand for interpreter services in the courts.

2. There is a shortage of qualified interpreters in the state. Since Nebraska joined the Consortium for State Court Interpreter Certification in 1999, six individuals have passed the certification test. There is also a need to increase and improve interpreter training courses in preparation for the certification tests.

3. Nebraska courts do not always make an attempt to first appoint a court-certified interpreter as is required by rule of the Nebraska Supreme Court.

4. Some confusion exists as to when interpreter services should be paid for by the state or county.

5. Nebraska does not pay for interpreter services for diversion. Some individuals may not have the means to pay for such services.

6. Translation of documents are not consistent across the state.

Recommendations

1. The Nebraska Administrative Office of the Courts should collaborate with schools of higher education to design a curriculum appropriate for pre- and post-certification education for interpreters.

2. The Administrative Office of the Courts should create a “screening phase” for certification applicants, so as to increase the likelihood of passage before extensive funds are spent on testing.

3. The Administrative Office of the Courts should seek additional funds for training through federal and nonprofit granting institutions.

4. The Administrative Office of the Courts should actively encourage those desiring to take certification tests in languages not currently offered in Nebraska to take those tests in other National Consortium for Racial and Ethnic Fairness in the Courts states that offer those particular tests so as to reduce costs in Nebraska.

5. The Administrative Office of the Courts should require records to be kept and summarized as to the number of requests made for interpreter services in each Nebraska county along with a breakdown of the number of times each language is requested.

6. Judges should be required to ask non-certified interpreters if they have read and agree to adhere to the Code of Professional Responsibility for Interpreters.

7. A policy should be adopted requiring that all judicial forms, documents, and videos used in court proceedings be drafted in English and translated into such additional languages as the Administrative Office of the Courts approves. All such translations should be made by qualified translators and approved by the Administrative Office of the Courts.

8. Interpreters should be encouraged to acquire an understanding of cultural variations that accompany language differences, so as to better assist non-English-speaking clients.

9. The Nebraska Supreme Court and Administrative Office of the Courts should consider hiring interpreters on a full time basis, where appropriate, in order to attract more and better interpreters.

10. The Administrative Office of the Courts should actively seek to partner with other governmental agencies to hire full time or to "share" language interpreters, where a need justifies such a partnership.

11. The Administrative Office of the Courts should continue to actively recruit bilingual staff and compensate them accordingly.

12. The Nebraska Supreme Court should require that county and district courts provide court-paid interpreter services to indigents outside of court in order to communicate with their court-appointed lawyers.

13. The Administrative Office of the Courts should create a review system to rate frequently used uncertified interpreters and periodically make unannounced reviews of uncertified interpreters in the courtroom setting.

14. A simple explanation of both civil and criminal court processes should be prepared in Spanish and other appropriate languages. This could be in written or video form.

15. The Administrative Office of the Courts should develop a Nebraska court-approved voir dire, such as the one developed by the NCSC, for use by judges to determine the qualifications of an uncertified interpreter.

Juries

Selection

Findings

1. The majority of Nebraskans believe that it is important that juries reflect the racial and ethnic makeup of the community. However, many respondents, especially minority respondents, believe that juries in general are not representative of their communities.

2. The majority of Nebraska court personnel believe that jury pools represent the community at large. Minority court personnel were less likely to agree that jury pools represent the community at large and much less likely to believe that racial and ethnic minorities are adequately represented on jury panels.

3. Minority lawyers and lawyers from diverse counties (Lancaster County, Douglas County, Sarpy County, etc.) of the state are substantially more likely to believe Nebraska’s jury pools underrepresent racial and ethnic minorities.

4. Although minorities in Nebraska are slightly more likely than whites to have been in a Nebraska court of law as a defendant or witness, whites are substantially more likely to have been called for and served on Nebraska juries.

5. Nebraska’s current method for compiling jury lists may have an adverse effect on minority participation.

6. Nebraska state statutes do not require periodic refreshing of jury lists.

7. Minorities in Lancaster County were underrepresented in the venires and on impaneled juries for both civil and criminal trials in the summer of 2002.

8. A majority of jurors from Douglas, Lancaster, and Hall Counties feel that juries should be reflective of the community.

Recommendations

Juries should be more reflective of the diversity of the community, and source lists for juries should be expanded to ensure such diversity.
The Nebraska Secretary of State should require that all persons registering to vote identify their race and ethnicity so that proper records can be kept of jury pool composition.
Jury commissioners should be required to collect and preserve racial and ethnic information on all persons selected for jury duty. This data should be reported yearly to the Administrative Office of the Courts.
Jury commissioners should be required to collect and preserve racial and ethnic information on all persons granted excuses and deferrals, reporting for jury duty, selected for voir dire panels, and seated on juries at both the county and district level. This data should be reported yearly to the Administrative Office of the Courts.
County and district court clerks should be required to collect and preserve racial and ethnic information on all impaneled jurors. This data should be reported yearly to the Administrative Office of the Courts.
Nebraska statute should require that jury pool lists be refreshed annually on a set date determined by the Administrative Office of the Courts.
A study should be commissioned to investigate the feasibility of using audio recordings to determine if errors or omissions are occurring in interpretation within the court system.
Establish a tier system to ensure that the most qualified interpreters are being utilized and that less qualified interpreters can receive training experience (also provides incentives to become certified).
The AOC should provide training and educational materials to Judges, court staff, attorneys and other entities on how, when and how many qualified interpreters should be used.
The AOC should develop a process for use by the courts to determine the qualifications of an uncertified interpreter prior that person’s entrance into the court system, and an oath that should be administered at trial.
Establish a mechanism that discourages individuals under the age of 19 from serving as court interpreters.
Update the list of court interpreters.
Adopt a rule of reciprocity with other consortium states.

Treatment and Verdicts

Findings

1. Although Nebraska state statutes ensure that employees’ wages are protected, there are currently no efforts to reimburse low-income jurors for child care or elderly care expenses incurred because of jury service.

Recommendations

1. Reimbursements should be made to low-income jurors for child care or elder care expenses incurred because of jury service.

Courtroom Experience

Judges

Findings

1. Minority Nebraska State Bar Association members are more likely than their white counterparts to believe that judges are more abrupt with minority counsel than with white counsel.

Court Staff

Findings

1. Court personnel and Bar members report having witnessed or that they were aware of inappropriate comments or jokes of a racial or ethnic nature, racial or ethnic slurs, and disrespectful and discourteous treatment of minorities. (See also Courtroom Environment: Lawyers/Others, Finding #1)

Lawyers/Others

Findings

Quality of Legal Representation

Findings

1. Over half of Nebraska’s counties have no public defender.

2. Nebraska’s minorities are substantially more likely than whites to use a public defender or assigned counsel.

Recommendations

1. Nebraska should adopt and enforce mandatory standards for the operation of county indigent defense systems that comply with the American Bar Association’s “Ten Principles of a Public Defense Delivery System.”

Legal Profession

Recruitment/Acceptance to Law School

Findings

1. Too few Nebraskans who are members of minority groups take the LSAT.

2. Too few members of minority groups apply to Nebraska’s law schools.

3. Too few Nebraskans who are members of minority groups matriculate at law schools in Nebraska.

4. Too few members of minority groups matriculate at Nebraska’s law schools.

5. Any effort to diversify Nebraska’s legal community must be a long-term effort that begins with enlarging the minority applicant and matriculate pools at Nebraska’s law schools.

6. Minority and white members of the Nebraska State Bar Association have noticeably different perceptions of the law schools’ efforts to diversify their student bodies.

7. There is a perceived and actual need for more diversity in the profession and the law schools. The law schools are a prerequisite for that diversification.

8. It would be beneficial to recruitment and education if the law schools hired more minorities as faculty and administration.

Recommendations

1. While the pool of potential minority law school students for Nebraska’s law schools is relatively small, the law schools should continue and increase efforts to attract minority applicants.

2. The Nebraska State Bar Association and the two law schools in Nebraska should make every effort to identify high school and college students from Nebraska’s minority population or those graduating from a Nebraska higher education institution, to inform them about the opportunities available with legal training, and to encourage them to apply to one of the state’s law schools.

3. The Nebraska State Bar Association, the Nebraska State Bar Foundation, and the law schools in Nebraska should make an effort to identify minorities who have been out of college for a period of time and may be interested in a legal career, to inform them about legal education and the legal profession, and to encourage them to apply to one of the state’s law schools.

4. The Nebraska State Bar Association should work with the law schools, Creighton and UNL alumni, minority practitioners, and other appropriate groups to attract more minority students.

5. The Nebraska State Bar Foundation should consider assisting in efforts to supplement scholarships and assistance already provided by the law schools to minority students.

6. The Nebraska State Bar Association, the Bar Foundation, Nebraska’s two law schools, and the region’s ethnic bar associations should work together to provide a coordinated and targeted campaign to minority students of various ages to encourage pursuit of a career in the legal profession.

7. Among other factors, each Nebraska law school should consider applicants with diverse backgrounds and life experiences that could contribute to a multicultural student body.

8. The Nebraska State Bar Association and Nebraska Supreme Court should continue to work with the law schools to provide effective orientation, mentoring, and academic support programs.

9. The Nebraska State Bar Association and Nebraska Supreme Court should work more closely with the law schools to promote adequate clerking opportunities for minority law students.

10. Law school classes should cover racial and ethnic bias and discrimination as they affect law practice, treatment of fellow professionals and treatment of court participants.

11. The law schools, the Nebraska State Bar Association, the Bar Foundation, and the Nebraska Supreme Court should include a fair representation of minority participants in law school, Bar and court activities, events and programs.

12. Law schools in Nebraska should annually evaluate the graduation rates following matriculation among minority law students in determining the scope and effectiveness of the school’s academic support programs.

13. Entities that affect access to the profession, such as the law schools, Nebraska State Bar Association, and Nebraska State Bar Commission, should collect and maintain appropriate statistics delineated by race and ethnicity (i.e. placement and employment data).

14. Nebraska’s law schools should continue efforts to increase the diversity of their teaching faculty and administration.

Hiring and Promotion

Findings

1. Minority and white members of the Nebraska State Bar Association have noticeably different perceptions of career opportunities in the state, including those related to mentoring, retention, and promotion.

2. Nebraska’s legal profession is not reflective of the state’s racial and ethnic diversity.

3. White and minority members of the Nebraska State Bar Association have differing experiences in finding and retaining employment, which could be reflective of racial and ethnic hiring bias.

4. Minority Bar members believe that there are fewer opportunities in private firms for minority law school graduates and that little effort is made to recruit and retain those minority Bar members who are hired.

5. Minority Bar members believe they have fewer opportunities for mentoring than their white counterparts.

6. Minority Bar members are less satisfied with networking opportunities than their white counterparts.

7. Minority Bar members are less likely to be satisfied with their professional advancement opportunities. Minority lawyers are also far less likely to believe that equal opportunities exist for advancement within the Nebraska legal profession.

Recommendations

1. Law firms and other employers of lawyers should broaden their recruiting and hiring criteria to weigh measures of a candidate’s ability in an attempt to increase the likelihood of hiring minority candidates.

2. Law firms and other employers of lawyers should strive to eliminate behaviors that might be perceived as discriminatory or otherwise offensive to minority persons.

3. When possible, law firms and other employers of lawyers should include minority lawyers on interview, selection, and hiring teams.

4. Law firms should participate in clerkship programs that seek to place minority law students as summer associates, with the goal of expanding the range of criteria upon which the law firm may judge the likelihood of the student’s ultimate success with the firm.

5. The Nebraska State Bar Association should create a section to address race and ethnicity in the law. Among other activities, this section should develop, maintain, and disseminate a voluntary directory of practicing minority lawyers.

6. The Nebraska State Bar Association should encourage the further development of mentoring programs for lawyers.

7. The Nebraska State Bar Association should consider recommending equal employment opportunity policies for all lawyers in Nebraska.

8. Nebraska court clerks or court administrators should collect and maintain court appointment records delineated by the type of appointment, race and ethnicity of the lawyer or appointed party, and the judge who made the appointment. This data should be reported to the Supreme Court on a periodic basis.

Education

Judges

Recommendations

1. The Nebraska Supreme Court and the Nebraska State Bar Association should develop and administer training to improve multicultural competence and recognition of differences for judges and all other court personnel. In addition, other agencies not under the management or control of the Nebraska Supreme Court should develop and conduct similar training. These agencies would include, but not be limited to, public defenders, prosecutors, and law enforcement agencies. (See also Education: Court Staff, Recommendation #1; Education: Lawyers, Recommendation #1)

2. A formal education process should be designed, developed and repeated periodically by the Nebraska Supreme Court to address differences in perception between white and minority employees and additional educational opportunities to promote diversity training and other educational opportunities as developed by the Judicial Education Committee. (See also Perception: Attorneys, Judges, and Court Staff, Recommendation #2; Education: Court Staff, Recommendation #2)

3. The Administrative Office of the Courts should provide diversity and cultural training for all judges and court employees, both at the time of their hiring and at interval periods. (See also Education: Court Staff, Recommendation #3)

Court Staff

Recommendations

1. The Nebraska Supreme Court and the Nebraska State Bar Association should develop and administer training to improve multicultural competence and recognition of differences for judges and all other court personnel. In addition, other agencies not under the management or control of the Nebraska Supreme Court should develop and conduct similar training. These agencies would include, but not be limited to, public defenders, prosecutors, and law enforcement agencies. (See also Education: Judges, Recommendation #1; Education: Lawyers, Recommendation #1)

2. A formal education process should be designed, developed and repeated periodically by the Nebraska Supreme Court to address differences in perception between white and minority employees and additional educational opportunities to promote diversity training and other educational opportunities as developed by the Judicial Education Committee. (See also Perception: Attorneys, Judges, and Court Staff, Recommendation #2; Education: Judges, Recommendation #2)

Lawyers

Recommendations

1. The Nebraska Supreme Court and the Nebraska State Bar Association should develop and administer training to improve multicultural competence and recognition of differences for judges and all other court personnel. In addition, other agencies not under the management or control of the Nebraska Supreme Court should develop and conduct similar training. These agencies would include, but not be limited to, public defenders, prosecutors, and law enforcement agencies. (See also Education: Judges, Recommendation #1; Education: Court Staff, Recommendation #1)

Public

Recommendations

1. Local bar associations and courts should engage in outreach programs with leaders of local immigrant and culturally diverse communities to help educate their members as to the role and processes of the Nebraska court system.

Criminal Justice

Arrests

Findings

1. In Nebraska and elsewhere, minorities are disproportionately arrested in relationship to their percentage in the general population and compared to their white counterparts.

2. Nebraska law enforcement agencies arrest blacks at a disproportionately higher rate than is found nationally or in any of the states in Nebraska’s region.

3. Nebraska’s law enforcement agencies have no established policy for recording race and ethnicity.

Recommendations

1. An appropriate commission or task force should be created to investigate the disproportionately high minority arrest figures among Nebraska’s law enforcement agencies. In addition, Nebraska law enforcement agencies (police, sheriff, state patrol) under the leadership of the Nebraska Crime Commission or some other suitable state agency should make a concerted and sustained effort to determine whether race or ethnicity plays an improper role in arrests, and, if so, take specific and concrete action to address the matter.

Pretrial

Findings

1. Not all Nebraska counties offer diversion and, among those that do provide diversion, these services vary.

Recommendations

1. Nebraska courts should investigate the advisability of fully implementing a system based not on monetary bond but on conditions of pretrial release that would reasonably assure the appearance of the defendant and safety of the community.

2. The Nebraska Legislature should establish guidelines to ensure equal access to adult diversion programs and to assure the confidentiality of information concerning participants in diversion programs.

Outcomes

Findings

1. A substantial number of Nebraska State Bar Association members and court personnel believe that minority defendants are more likely to be charged, convicted, and sentenced to longer terms than white defendants.

Incarceration

Findings

1. In Nebraska and elsewhere, minorities are disproportionately incarcerated in relationship to their percentage in the general population and compared to their white counterparts.

2. In Nebraska, the disparity between minority and white narrows from arrests to incarceration so that Nebraska incarcerates adult minorities at about the same rate as surrounding states.

Court as Employer/Appointer

Hiring/Promotion

Findings

1. In obtaining data, the decentralized nature of the Nebraska district courts made it difficult to collect data regarding the number of minority employees employed by the district courts, the grievance procedures, the number of complaints filed in the past year, and the hiring policies and procedures for each district court.

2. In obtaining data, the centralized nature of the Nebraska county courts allowed for the thorough and timely collection of data regarding the number of minority employees employed by the county courts across the state, the grievance procedures in place, the number of complaints filed in the past year, and the hiring policies and procedures for each county court.

3. Nebraska’s racial and ethnic minorities are either absent or substantially underrepresented as employees at every level of the state’s court system.

4. Minority candidates are more likely to seek and learn of job opportunities through friends, networking and multiple means than through advertising or other traditional means.

5. There is no regular review to evaluate the diversity of the state’s court employees.

6. Significant differences in perception exist between white and minority court personnel concerning the nature of the hiring process and the likelihood of minorities receiving preferential or discriminatory treatment, both in hiring and while on the job.

Recommendations

1. The court systems and all individuals hiring court personnel should adopt aspirational goals to have a workforce that is reflective of a diverse community. Responsibility for attaining such objectives should be delegated to appropriate administrators and job performance evaluations should include a review of individual performance in attaining such goals.

2. The court systems should adopt, publish and enforce comprehensive policies for assuring equal opportunity and recruitment of minority employees. Monitoring systems should be established at all levels and administered to assure adherence to such policies to ensure that diversity commensurate with that of the community is being achieved.

3. All Nebraska court employment specifications and policies should be reviewed and updated to encourage bilingual skills and multicultural knowledge where such capabilities would better serve the public, and such skills should be appropriately compensated.

4. The Nebraska court systems should have, as a performance goal, an ongoing effort to recruit qualified minority applicants for managerial and supervisory positions.

5. A variety of means should be used to inform minority candidates of employment opportunities. These means should include, but not be limited to, multilingual advertisements placed in ethnic centers, churches, and other locations where minorities will be reached. All advertisements should emphasize that the court systems are equal opportunity employers.

Judicial Selection

Findings

1. Racial and ethnic minorities are underrepresented in Nebraska’s judicial system.

2. There is no regular review to evaluate the diversity of the state’s judicial nominating commissions.

3. Nebraska’s judicial nominating commissions are not reflective of the diversity of the legal community.

4. There exists no data to assess the diversity of the governor’s judicial nominating commission appointments.

Recommendations

1. Judicial nominating commissions and the governor should take proactive steps to ensure a state judiciary that is reflective of the communities it serves.

2. The Nebraska Supreme Court and the Nebraska State Bar Association should encourage diversity on the judicial nominating commissions and require that records be kept of the race and ethnicity of commission members.

3. The Supreme Court and the Nebraska State Bar Association should develop and administer training to improve multicultural competence and recognition of differences for those lawyers and laypersons who serve on judicial nominating commissions.

4. The governor should consider factors such as race and ethnicity when making appointments to the judicial nominating commissions.

5. The Nebraska State Bar Association, the judicial nominating commissioners, and community legal organizations and leaders should strive to identify, encourage and support qualified minority judicial applicants.

Juvenile Justice

Findings

1. Minority youth are disproportionately detained in the state of Nebraska, regionally, and nationally in relationship to their percentage in the general population and compared to their white counterparts.

2. Minority youth are disproportionately placed in out-of-home placement in the state of Nebraska in relationship to their percentage in the general population and compared to the white counterparts.

3. Due to a number of factors, including those related to language and resource barriers, minority youth are less likely to participate in juvenile diversion services.

4. Not all Nebraska counties offer diversion and, among those that do provide juvenile diversion, these services vary.

5. Few juvenile diversion programs keep records of race and ethnicity.

6. There exists a perception that juvenile diversion programs are not as available for minority youth as they are for white youth.

Recommendations

1. Nebraska should continue efforts to identify and eliminate the barriers that lead to disproportionately high minority youth arrests and incarceration relative to their percentage in the population and compared to their white counterparts.

2. The Nebraska Legislature should establish guidelines to ensure equal access to juvenile diversion programs and to assure the confidentiality of information concerning participants in diversion programs.

Nebraska should continue efforts to identify and reduce the barriers to full and equal access to juvenile diversion.

Other Topics

Complaints and Discipline

Findings

1. There is no uniform method in the Nebraska district courts for the processing of discrimination complaints and there exists no uniform affirmative action or equal employment opportunity policies.

Recommendations

1. A formal discrimination complaint procedure should be developed by all court systems and communicated to all employees of the court systems in personnel manuals given to all employees and on announcements posted in court offices.

Measurement and Evaluation

Findings

1. Nebraska’s county and district courts do not collect and maintain sufficient computerized demographic data to allow for statistical analysis of racial and ethnic minorities in the court system.

2. Nebraska does not maintain a database to study the discretion of Nebraska’s prosecutors as it relates to race and ethnicity.

3. Few diversion programs keep records of race and ethnicity.

4. There exists inconsistent and inadequate record keeping of diversion programs and no centralized database to collect information on those offered diversion.

Recommendations

1. The Nebraska Supreme Court and other applicable courts should adopt policies that maximize the use of age, race, ethnicity, gender, and other demographic data in criminal and juvenile court and probation records systems so that the decisions, disposition, and the delivery of services provided by the courts and probation can be analyzed to determine whether there are any effects on the delivery of those services associated with treatment of race, ethnicity, gender, age, or other demographic characteristic.

2. To the maximum extent possible, automated systems operating in law enforcement, prosecution, courts, probation, and corrections should be designed so that data can be shared with other systems. In places where that integration of automated systems is not yet possible, the prosecutor should be required to prepare a “criminal cover sheet” for all county and district court criminal cases. A similar cover sheet should be used for juvenile cases. These cover sheets should be standardized to include such information as the race, ethnicity, gender, age, or other demographic data of the defendant, and the original charge or charges.

3. The Administrative Office of the Courts should coordinate the collection of data, educate court participants, and continue to research areas of potential bias in the court, in order to create continuous oversight of the Nebraska criminal and juvenile court system.

Implementation Measures

Access

Language

Findings

Through surveys of Nebraska’s court personnel and the NSBA’s membership, and through testimony obtained through pubic hearings across the state, the Task Force assessed the current state of interpreter services in Nebraska’s court system. Nebraska’s demographics are quickly changing, causing an increase in the demand for interpreter services in the courts. At the time of the Task Force’s investigation, Nebraska had only six certified court interpreters for 93 county and district courts. The demand is heightened by the need for interpreter services throughout the legal process including probation and diversion services. Among others, additional testimony revealed concerns with: the quality of interpreting and translated documents; interpreters not being required to take an oath; and whether interpreter services should be paid for by the state or county.

Progress

1. The Administrative Office of the Courts (AOC) has translated protection order forms into Spanish and is in the process of developing a version in Vietnamese.

2. In order to provide qualified interpreters, the AOC has taken steps to establish an interpreter certification program in conjunction with Southeast Community College and has provided workshops and training programs for current court interpreters. Additionally, the Nebraska Association of Translators and Interpreters conducts an annual training session.

3. To date, Nebraska has 11 certified court interpreters. (At this time last year there were only 6).

4. The Nebraska Supreme Court Rules Relating to Court Interpreters was amended in September 2003 to discourage individuals under the age of 19 from serving as court interpreters.

5. The Nebraska Supreme Court Rules Relating to Court Interpreters was amended in September 2003 to require interpreters to have read the Code of Professional Responsibility for Interpreters, and to take the Interpreter Oath prior to interpreting in the Nebraska courts or the Nebraska State Probation System.

6. The AOC is in the process of updating the Interpreter Registry.

Future Effort

1. The Implementation Committee is developing a proposal to establish a Nebraska-based legal telephone interpreting service. By establishing a Nebraska-based legal telephone interpretation service, Nebraska can not only overcome the geographic challenges of providing interpreter services but it can also ensure free access to qualified court interpreters in many languages. While there are legal obstacles which must be overcome before Nebraska could benefit from telephonic interpreting in the courtroom, the Implementation Committee hopes that by providing this service to court personnel and attorneys, it can increase non-English speakers’ access to and confidence in the justice system.

2. The AOC will continue to assess the accuracy of its translated documents and compile a list of standardized forms that need to be translated. Newly translated documents will be disseminated to the courts.

3. A working group has been established to address issues of community education. The group will develop initiatives to inform the public about court systems and processes.

To better assess the need for interpreter services, the AOC will keep necessary records to determine the number of requests for interpreter services by district and by language.

Culture

Findings

1. At the request of Hon. John Gerrard, this Subcommittee will work toward the passage of LB 315 with respect to statutory changes affecting Notary Publics and their ability to hold themselves out as immigration experts. There has been a problem with the unauthorized practice of law by “Notarios” – individuals who hold themselves out as Notary Publics and specifically advertise that they provide immigration services. Notarios have helped immigrants complete applications for a green card or work permit, even though that individual may not be qualified, and fees are taken regardless of the likelihood of success on the application.

Progress

1. The Attorney General’s office is currently gathering information on the issue.

Future Effort

1. The Subcommittee will work with the Secretary of State’s office to determine whether there are remedies already available to address this issue.

2. The Subcommittee will offer to testify at future hearing dates on this bill.

3. The Subcommittee will also publish an article in the Nebraska State Bar Association magazine, The Nebraska Lawyer, regarding a study that revealed that disproportionate numbers of immigrants are being detained in Nebraska county jails. The article will include a sidebar that provides information about volunteer services around the state available to immigrants in need of legal assistance.

Juries

Selection

Findings

1. Perceptional data gathered by the Task Force indicate that the majority of Nebraskans believe that it is important that juries reflect the racial and ethnic makeup of the community. However, many respondents, especially minority respondents, believe that juries in general are not representative of their communities. Data support this perception; although minorities in Nebraska are slightly more likely than whites to have been in a Nebraska court of law as a defendant or witness, whites are substantially more likely to have been called for and served on Nebraska juries.

2. In its Final Report, the Task Force identified several structural factors which may inhibit racial and ethnic minorities’ participation on juries: how jury pool lists are compiled; juror qualification guidelines; counties that have not periodically updated their jury pool lists; and payment for jury service.

Progress

1. Major progress was made toward making jury pools more representative of their communities when an amendment to LB19 (the Civil Procedure Bill) was passed on May 19, 2003. Amendment 1527 requires that jury pool lists be updated on an annual basis. The Implementation Committee has received anecdotal evidence that this legislative change has already made a significant impact on diversifying Nebraska’s juries; however, there have been complaints about the increased cost to local governments. The Subcommittee is evaluating whether a uniform system or software might be available to help minimize the cost of refreshing jury pool lists.

Future Efforts

1. One way the state can ensure that all racial and ethnic groups have an equal chance of being called to participate on juries is to expand the source lists from which juries are compiled. Currently, NEB. REV. STAT. §25-1628 (Reissue 1995) requires Nebraska counties to combine both voter registration lists and driver’s license registration lists to create the master list from which prospective jury pools are made. Several other states’ research efforts have concluded that various groups within the population are not equally likely to be registered to vote or drive, thereby systematically excluding minorities from the opportunity to serve on juries. In the future, the subcommittee will investigate the utility of including additional source lists to compile the prospective jury pool. However, it is the Subcommittee’s position at this time that the impact of Amendment 1527 should be evaluated after a reasonable period of time to determine whether the required annual refreshing of jury pool lists has sufficiently accomplished the goal of creating jury pools representative of the community.

2. To investigate the extent to which juries are representative of their community and whether the current system of jury compilation systematically excludes racial and ethnic minorities, data need to be collected at each stage of the jury selection process. The Subcommittee is exploring several options including the development of a uniform jury questionnaire, which would collect race and ethnicity data on a detachable portion for research purposes. Pursuant to Neb. Rev. Stat. § 25-1629, the jury commissioner shall mail a juror qualification form to each proposed juror. The Subcommittee would like to make this questionnaire uniform across the state so that race and ethnicity information could be collected.

3. In order to investigate the extent to which juries are representative of their community and whether the current system of jury compilation systematically excludes racial and ethnic minorities, the Implementation Committee or other designated agent will need access to demographic data collected about jury pools, venires and impaneled juries for the purposes of research. This would require a statutory change to Neb. Rev. Stat. § 25-1629 and § 25-1635 to authorize access to information for research purposes as authorized by the Nebraska Supreme Court or its agent.

4. The subcommittee is also investigating several options to reduce the burden of jury service on low income jurors for childcare or elder care expenses.

Courtroom Experience

Quality of Legal Representation

Findings

1. Public defenders and assigned counsel hold a unique position in the state’s criminal justice system. They serve as lawyers for defendants unable to afford a private lawyer. Because a higher percentage of minorities than whites are poor and thus unable to afford a private attorney, minorities are more likely than whites to need the services of a public defender or assigned counsel. The quality of the legal services provided by public defenders or assigned counsel will affect how minorities are treated in the criminal justice system.

In a 1993 study of Nebraska’s indigent defense system there were three major findings regarding the quality of indigent defense services in the state of Nebraska. First, the study found a lack of uniformity and consistency in the delivery of indigent defense services. Second, funding primarily at the county level was inadequate to meet indigent defense needs. Finally, there was a lack of written standards and guidelines for the operation of indigent defense programs. Since 1993, there have been no further inquiries to determine whether these findings remain true.
The American Bar Association has enumerated 10 principles for a public defense system. In short, the ABA finds that public defenders should be well-educated, be independent, have access to adequate resources, have reasonable caseloads, and have the time to effectively defend those without means to fund their own defense. In 2001, the Nebraska legislature created a mechanism and provided funding for the development and implementation of standards for county indigent defense systems. The standards were developed for felony cases, but no other standards were agreed to before the Nebraska Legislature defunded the project in 2002

Progress

1. The Implementation Committee has partnered with the Nebraska Commission on Public Advocacy to test the efficacy of the 2001 standards through a pilot project. Although only at the beginning stages, the Commission on Public Advocacy is in the process of updating the 1993 assessment of indigent defense systems by developing a report on the current status of indigent defense systems in Nebraska

Future Efforts

In order to prove the efficacy of the developed standards for indigent defense systems, the working group has partnered with the Commission on Public Advocacy to develop a 2-3 year pilot project. The project will compensate counties 40% for fully implementing the developed standards for indigent defense systems. The working group is currently seeking grant money to fund the pilot project.
Although standards for felonies have already been established, the working group would like to bring a group of juvenile justice experts and practitioners together to develop standards for juvenile representation.

Legal Profession

Recruitment/Acceptance to Law School

Findings

1. The Final Report concludes that Nebraska is facing a “pipeline” issue. In short, the law schools’ ability to recruit, admit, and graduate minority students directly affects the likelihood that Nebraska’s legal community will be reflective of the growing diversity in the state. By extension, the success of the law schools to diversify likely will lead to more minority lawyers and ultimately more minority judges in the state.

Progress

Through a grant from the Law School Admissions Council, the University of Nebraska College of Law developed a summer Pre-Law Institute in 2003. The Institute targets students who are traditionally underrepresented at the University of Nebraska College of Law and within the legal profession in Nebraska. A total of 29 diverse students attended the four-week summer program in 2003. The Pre-Law Institute provided students with an introduction to legal study and its analytical and writing demands; exposure to the many roles of the law and lawyers in society; and instruction on the process of applying to law school and obtaining financial aid. The general goal of the program is to orient students to the special nature of legal study and to excite them both about law school itself and about life in the law beyond law school. In addition, the program established two mentoring relationships for each student, one with a lawyer involved in academics and one from outside academics. Students’ evaluations showed general satisfaction with the program. Moreover, pre- and post-session evaluations showed improvements (although not statistically significant) in students’ LSAT and writing scores. In addition to nurturing and developing interest in the law among a broadly diverse group of students, the Pre-Law Institute was also developed in hopes of increasing the diversity of the University of Nebraska College of Law and ultimately the legal profession in Nebraska. Although it may take some time to adequately assess to what extent the program is successful in increasing diversity, the program shows promise in accomplishing this goal. In fact, the Law School Admissions Council has extended funding for the Pre-Law Institute for four additional years.

Future Efforts

1. There are currently several programs designed to attract minority youth to pursue a career in the legal profession in Nebraska. The Subcommittee would like to build a continuum among the various programs (those sponsored by the NSBA, the Bar Foundation, Upward Bound programs, the law colleges’ “Law Day” events, etc.) which would track minority involvement in these programs from middle school through law school. The purpose of tracking is 1) to evaluate how programs are working and 2) to nurture the interest minority youth have expressed in pursing a career in the law. The idea is that students involved in middle school programs can later be invited to junior high and high school events and programs, while maintaining contact through periodic newsletters.

Hiring and Promotion

Findings

1. The Task Force examined opportunities for minorities in Nebraska’s legal profession by collecting data from Nebraska’s law schools, administering a survey of NSBA members, and conducting focus groups with affected parties. Results show that Nebraska’s legal profession is not reflective of the state’s racial and ethnic diversity. Additionally, minority and white members of the NSBA have noticeably different perceptions of career opportunities in the state, including those related to mentoring, retention and promotion. More specifically minority Bar members believe that there are fewer opportunities in private firms for minority law school graduates, and that there are fewer mentoring, networking and professional advancement opportunities for minority legal professionals. Finally, data indicate that racial and ethnic minorities are underrepresented in Nebraska’s judicial system and that Nebraska’s judicial nominating commissions are not reflective of the diversity of the legal community.

Future Efforts

1. In conjunction with the NSBA, the Implementation Committee will coordinate a Diversity Summit for legal employers (law firms, general counsel, government organizations, etc.). Among other things, the Summit will bring legal employers together to discuss diversity issues and best practices in hiring and retention.

2. The Subcommittee will develop a program to provide judicial clerkship opportunities to first-year minority law students at the two Nebraska law schools. Many other states have developed similar programs. The Subcommittee believes that by providing these types of opportunities, minority law students may be more likely to view Nebraska as a viable place to practice after graduation, and would illustrate that the Nebraska Bar appreciates the value of diversity and is willing to take measures to ensure diversity in the profession.

Education

Court Staff

Findings

1. Data collected through public hearing testimony and through surveys of Nebraska court personnel and NSBA members report instances of inappropriate conduct by judges, lawyers, court personnel and probation employees. Furthermore, survey data indicate that minority court personnel and Bar members have markedly different perceptions of bias in the Nebraska justice system. These findings indicate a need for multicultural education throughout the court and legal system. A working group has been established to develop and administer training to improve multicultural competence.

Progress

1. One of the primary goals of the working group is to raise awareness of the Final Report and its findings. In addition to the 2003 town hall meetings, the Task Force and Implementation Committee have received substantial media coverage. The working group has also been working to raise awareness among court personnel and the legal profession. For instance, the Implementation Committee has several articles forthcoming in legal professional magazines/newsletters discussing the importance of the findings made in the Final Report.

2. The second major goal of the working group is to develop and administer training to improve multicultural competence. Although the working group is still in the design stage of this initiative, the Nebraska Crime Commission’s Disproportionate Minority Confinement subcommittee recently conducted multicultural training across the state for Nebraska’s Juvenile Justice System. Their curriculum, designed by JAG Consulting, Inc., demonstrates how public and private entities working with juveniles can integrate cultural competence tenets immediately within their organizations and transform those fundamental principles into behaviors, practices and policies that are implemented in a pragmatic, consistent manner. Since September 2002, over 300 people across the state participated in the 8 hour training session. The Nebraska Crime Commission’s DMC subcommittee will be offering a shorter, more directed training program in 2004.

Future Efforts

1. Efforts to educate the public, the court system and the legal profession about the Final Report and its findings will continue. This will involve presentations to various groups such as: district and county judges associations, juvenile judges, local/district bar associations and specialty bar associations such as NCDAA, and the Nebraska County Attorneys Association, court personnel, and communities across the state.

2. The working group will develop targeted diversity education programs directed toward the judiciary, court personnel and attorneys.

3. In collaboration with other Implementation Committee subcommittees, the working group will help to coordinate the 2004 Diversity Summit. Among other programs, diversity training will be offered as a program for Bar members attending the Diversity Summit.

Criminal Justice

Pretrial

Findings

The bond system currently used by the state of Nebraska depends on the ability to pay. In the state of Nebraska, 1 out of every 19 whites earns below the poverty rate. By contrast, 1 in 5 blacks, 1 in 5 Native Americans, and 1 in 10 Asians earn below the poverty rate. Hence, in general, racial and ethnic minorities are less likely to have the resources to pay bond amounts or post the bond set by the court.
One of the recommendations of the Final Report was that Nebraska investigate the advisability of fully implementing a system based not on monetary bond but on conditions of pretrial release that would reasonably assure the appearance of the defendant and the safety of the community. A working group has been established to develop the concept of a pilot pretrial program which is not based on monetary bond.

Progress

1. The pilot project is still in the developmental stages. Prosecutors, law enforcement officials and judges have been meeting with and advising the working group in this endeavor.

2. In its investigation of the current bail/bond system, the working group identified an additional equal access issue. Namely, non-English speaking individuals may not be able to understand the bail/bond process. To address this the working group is developing a brief packet of information which will be translated into several languages, explaining: the individual’s status and what will happen next in the court process; a questionnaire to be filed out by the individual, relaying information to the judge for consideration of a personal recognizance bond; a bond schedule; and advisement of penalties if the individual fails to appear.

Future Efforts

1. Development of the pilot project will continue while the working group seeks funding for the project.

Incarceration

Findings

1. Through a careful examination of arrest and incarceration data from both state and federal agencies, the Task Force concluded that members of racial and ethnic minorities are disproportionately charged, convicted, and incarcerated in Nebraska compared to their white counterparts. A working group has been established to identify and reduce the causes that lead to disproportionately high minority incarceration.

Progress

1. The working group has gathered and reviewed prior research on disproportionate minority confinement as well as information on programs designed to reduce the disproportionate confinement of minorities.

Future Efforts

1. The working group is investigating the feasibility of establishing a Racial Justice Institute, similar to the Juvenile Justice Institute. The Racial Justice Institute would be responsible for the continued scientific investigation of race in the justice system and for providing technical assistance to the Legislature and the administrative agencies in the State of Nebraska.

2. The working group is developing a proposal for a research study examining the impact of race on charging decisions in felony cases.

Court as Employer/Appointer

Hiring/Promotion

Findings

1. In an effort to determine to what extent court staffs reflect the racial and ethnic diversity of the communities which they serve, the Task Force examined the demographic profile of the Nebraska state court system. Additionally, the Task Force explored the hiring, retention and promotion patterns for minorities in the state. Data revealed that across virtually every level of employment, minorities are underrepresented in Nebraska’s courts. Minorities are also more concentrated in support staff positions with little autonomy, less compensation, and are more likely to hold part-time positions than their white counterparts.

Progress

1. The Implementation Committee critically reviewed and revised the recommendations made in the Final Report and presented its formal recommendations to the AOC in February 2004.

2. A copy of the Final Report was sent to every judge in the state of Nebraska.

3. The AOC’s Equal Opportunity Employment policies were reviewed by the Nebraska Equal Opportunity Commission.

4. The AOC has expanded its efforts to publicize open court positions to Nebraska’s Hispanic/Latino population.

Future Efforts

1. The Subcommittee has pledged its support to the AOC in implementing the formal recommendations it made in February 2004.

2. Since the clerks of the Nebraska district courts are elected by their respective counties, the personnel of district courts are not subject to supervision by the AOC. The Subcommittee may consider the feasibility of extending its recommendations to the Nebraska district courts.

Juvenile Justice

Findings

1. In the Final Report, there were three major findings regarding diversion services in the state of Nebraska. First, the study found that not all Nebraska counties offer diversion and, among those that do provide diversion, these services vary. Second, few diversion programs keep records of race and ethnicity. Finally, there is inconsistent and inadequate record keeping of diversion programs and no centralized database to collect information on those offered diversion.

Progress

All of the Task Force’s findings were addressed to some extent in 2003 with the passage of Legislative Bill 43. LB 43 provides standards for the establishment of juvenile pretrial diversion programs and requires every juvenile pretrial diversion program to report information to the Nebraska Crime Commission. Among other things, programs are required to report in a uniform fashion: the race and ethnicity of those referred and those enrolled in juvenile pretrial diversion programs; reasons why referred youths did not enroll; the offense for which a juvenile was referred; and when and how the case was closed.
Data from Lancaster County’s juvenile justice system show that minority juveniles are less likely to enroll in pretrial juvenile diversion programs. Although there are many potential reasons for not enrolling in diversion programs, one reason may be that the process of enrolling is unclear. Lancaster County has revised the letter it sends to juveniles who are referred to pretrial diversion in easy to understand language. The working group hopes that similar efforts can be made across the state.

In an effort to ensure that non-English speaking juveniles are not discouraged from enrolling in juvenile pretrial diversion programs, a postcard providing a phone number to call if the juvenile needs interpreter services will be included with the letter sent to all juveniles referred to diversion in Lancaster County. The statement will be translated into 4-5 languages. The working group hopes that similar efforts can be made across the state.

Future Efforts

A working group has been established to continue to improve equal access to diversion programs. The working group is hopeful that LB 43 has addressed many of the concerns with juvenile pretrial diversion programs. The working group’s future efforts will therefore focus on pretrial diversion programs for adults. Future efforts include:

Data Collection: The working group will work with the Nebraska County Attorneys Association to obtain data on adult diversion programs across the state including: screening criteria; the demographic profiles of those being referred to adult diversion programs; the demographic profiles of those enrolling in adult diversion programs; whether and how often language interpreters are needed/used; the costs of diversion and whether or not payment plans are available for low income referrals, etc.
Program Standards: Pending the results of data collection efforts, the working group will investigate the utility of working with the Nebraska County Attorneys Association to develop standards for adult diversion programs.

Other Topics

Complaints and Discipline

Findings

1. The Task Force explored instances of inappropriate conduct by judges, lawyers, court personnel and probation employees. Court personnel and Bar members report having witnessed or being aware of inappropriate comments or jokes of a racial or ethnic nature, racial or ethnic slurs, and disrespectful and discourteous treatment of minorities.

Progress

1. The AOC’s formal discrimination complaint procedure were reviewed by the Nebraska Equal Opportunity Commission.

Measurement and Evaluation

Findings

1. One of the difficulties encountered by the Task Force in its two-year investigation was the lack of and incompatibility of data across the justice system (law enforcement, the courts, and corrections). For instance, some agencies collect race and ethnicity data separately, others collect only race data, and still others collect a combination. It is, therefore, difficult to use available data sets in tandem to illustrate the likelihood that an arrest will end in incarceration as a function of race and ethnicity. A working group has been established to address the complete and consistent collection of data on race/ethnicity in the justice system.

Progress

1. In January 2004, Senator Ernie Chambers introduced LB 1068 on behalf of the Minority and Justice Implementation Committee. The bill authorizes the Nebraska Supreme Court or its agent, to have access to presentence reports for the purpose of research. Access to presentence reports will allow the Supreme Court to periodically direct an analysis of the service provided by the courts of this state and by probation (such as setting of bond, sentencing, probation revocations, etc.) to see if there are any effects on the delivery of those services caused by race or ethnicity.

Future Work

1. To address the incompatibility of data, the working group will be pressing for the adoption of a uniform definition of race and ethnicity across justice institutions. Adopting a similar definition will not only allow Nebraska to obtain more accurate data on race and ethnicity but will enable the state to make accurate regional and national comparisons.

2. To address the lack of data on race and ethnicity gathered by the court system the working group is developing “criminal cover sheets” to be filled out by prosecutors in all county and district court cases. Cover sheets will be standardized to include the demographic profile of the defendant as well as information useful to the prosecutors and clerks such as: the case number; the original charge or charges; whether charges were filed in county or district court; etc.

3. The working group will continue to analyze the current systems of data collection across justice agencies to determine if changes can be made to provide for complete and consistent collection of data with respect to race, ethnicity, gender, age and other demographic data. Formal recommendations will be made to Nebraska’s Criminal Justice Information Systems (NCJIS) Advisory Committee, which coordinates data sharing and use of information technology among criminal justice agencies.

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