Race and Ethnic Fairness
State:
Committee/Report
Name: The Nevada Supreme Court established the Task Force for the Study of
Racial and Economic Bias in the Justice System December 30, 1992. The final
report was published
Number of Committee Members: 20 Task Force Members
Number of Subcommittees: 11 Subcommittees with members and non-members.
Pre-Arraignment Issues
Jury Issues
Sentencing Decisions
Post-Judgment Issues
Assignment of Counsel in Relationship to Client
Juvenile Matters
Methodology and Resources
Law Enforcement Liaison
Community Relations
Civil Justice Inquiry
Criminal Justice Inquiry
Chair/Co-Chairs: Kevin M. Kelly, Esq., Law Office of Kelly & Sullivan, Ltd.; Vice Chairs: Esther Langston, Ph.D., Professor, UNLV, Department of Social Work; David J. Gamble, Manager, National Council of Juvenile and Family Court Judges.
Methods Used: Like other task forces and commissions, the Task Force decided to collect information in a variety of ways—statistical research, interviews, public hearings, and forums at the University of Nevada, Las Vegas (UNLV) and University of Nevada, Reno (UNR). The primary objective of the committees and subcommittees was to examine and determine if racial and economic bias existed in the respective areas mandated by the Court. The focus of each committee and subcommittee was based on the following: discussions of the Task Force members at the general, committee, and subcommittee meeting; testimony received at the public hearings from members of the community; and guidance from the researchers at UNLV and UNR.
Topics and Recommendations
Perception
Findings
1. The
results of public surveys conducted for the Task Force suggest that a majority
of the residents in
2. According to the Judicial Assessment Commission report, “More citizens come into contact with the judicial system through their contact with limited jurisdiction courts, particularly through traffic cases, than through any other means. In fact, for many citizens this is their most common contact with government in general. The public’s perception of the courts and government in general is framed, to a large extent, by their experiences in these limited jurisdiction courts. Facilitating public access is important to help courts manage their workloads and to better serve the public. (See also Access: Other, Finding #3)
3. It has become obvious to Task Force members that the public’s perception of the justice system as a whole stems from its basic composition. That is to say that the personnel at all levels of the court system should adequately reflect the racial, ethnic, social-economic and gender diversity of the state itself and in particular the community it serves. At the current time no such documentation is compiled which would enable the standing committee to monitor the statistical composition of the aforementioned areas. (See also Court as Employer/Appointer: Hiring/Promotion, Finding #1; Measurement and Evaluation, Finding #3)
4. In nearly all cases there are dynamic differences in attitudes by the race of the resident, with African Americans far more likely to perceive racial inequity than White residents.
5.
6. The results of the public survey suggest that
residents in both
Recommendations
1. Initiate
quarterly public forums to discuss issues of law enforcement, prosecution,
criminal sentencing, and civil matters, and to openly discuss citizens’
concerns about criminal justice practices and policies in
2. Implement an educational program regarding the public’s perception in all available sources, including public service announcements on radio and television, advertisements on buses, or other public conveyances. Public seminars should be held by bar associations, local law enforcement agencies, and the courts alike to educate the public regarding the functions of the justice system. Encourage the involvement of the private sector.
Access
Findings
1. According
to recent projections by the state demographer, the Hispanic population is the
fastest growing segment in
2. “Booking and citation forms” do not include English or non-English ability. This information is presently not being collected and would be useful information as it relates to providing interpreters at intake services and public defender’s office. (See also Measurement and Evaluation, Finding #10)
3. The primary guardians of equal protection under the law for indigent defendants and non-English speaking members of the community are public defenders and court interpreters. Accordingly, the failure to adequately staff and support these court services is a major impediment to the achievement of equality in criminal processing. (See also Courtroom Environment: Quality of Legal Representation, Finding #2)
4. In many instances, counsel has not had the opportunity to review or have documents translated in the client’s language. In a number of cases the interpreter translates the entire document to the client outside the presence of counsel. (See also Courtroom Environment: Quality of Legal Representation, Finding #3)
Recommendations
1. Explore
a mechanism for an interpreting system that takes into account the generational
and cultural differences as they pertain to
2. Revise the “booking and citation forms” to include English or non-English speaking ability of arrestees. This information should be collected and reported on an annual basis to the standing committee for statistical purposes. In addition this procedure will identify individuals who are non-English speaking as soon as possible to facilitate in informing the district attorney, public defender, private counsel, and court interpreter. (See also Measurement and Evaluation, Recommendation #10)
3. Create a court interpreter’s office in each county to facilitate the non-English translation for those individuals arrested and detained.
5. Develop and implement a policy requiring the public defender to identify non-English speaking individuals and the language spoken. (See also Courtroom Environment: Quality of Legal Representation, Recommendation #5)
Findings
1. The quality of representation depends on the relationship between the youth offender and his or her attorney. Continuing Legal Education courses would be offered to provide privately retained counsel, district attorneys, and public defenders with current information concerning race, ethnicity, culture, and generational issues. Access to the courts and counsel is currently determined by the economic status of the youth offender and parents. (See also Courtroom Environment: Quality of Representation, Finding #1; Juvenile Justice, Finding #6)
Findings
1. There
exists in the State of
2. Currently there is no single source to monitor or establish procedures to be utilized by the legal community to ensure fairness and equality to the access of justice, even though criminal justice agencies have resources and the commitment to rigorously examine sources of disparity in their current practices. (See also Measurement and Evaluation, Finding #1)
3. According to the Judicial Assessment Commission report, “More citizens come into contact with the judicial system through their contact with limited jurisdiction courts, particularly through traffic cases, than through any other means. In fact, for many citizens this is their most common contact with government in general. The public’s perception of the courts and government in general is framed, to a large extent, by their experiences in these limited jurisdiction courts. Facilitating public access is important to help courts manage their workloads and to better serve the public. (See also Perceptions: Public, Finding #1)
Recommendation
1. Adopt the following recommendation contained in the Judicial Assessment Commission report: “It is recommended that the State Court Administrator’s Office [Administrative Office of the Courts] be obligated to created a support system for assisting limited jurisdiction courts by providing grant writing, counseling and funding. It is also recommended that the limited jurisdiction courts consider increasing the number of hours they are open for business to more effectively accommodate public access.”
Juries
Findings
1. A public education campaign encouraging the community to respond to jury summonses will help to achieve juries that are racially and ethnically diverse. Public services announcements on television and radio would provide information to the public stressing the importance of responding to a jury summons. Advertisements in local newspapers would also get the message across to the public. Brochures and posters would be disseminated and displayed in public offices. It’s also important to inform the public on how jury lists are derived and how to get placed on the jury source list.
2. Another method to increase participation is to coordinate efforts with the local school districts encouraging jury service to junior and high school students in government and civic classes. Juror education in high school government and civic classes could be emphasized.
3. By
considering additional methods for expanding jury pools, the courts are more
likely to be inclusive of those members of the community that are
disenfranchised from the primary list presently being used. For example,
4. A
review of NRS 6.020 (automatic exemptions from jury service) revealed that
-Federal or state officer.
-Judge, justice of the peace, or attorney at law.
-County clerk, recorder, assessor, sheriff, deputy sheriff, constable, or police officer.
-Locomotive engineer, locomotive fireman, conductor, brakeman, switchman, or engine foreman.
-Officer or correctional officer employed by the department of prisons.
-Employee of the legislature or the legislative counsel bureau while the legislature is in session.
-Physician, optometrist or dentist who is licensed to practice in this state.
Significantly, one-half of the states have eliminated all
exemptions for jury duty.
5. ABA Standard Thirteen adequately covers juror and calendar management in order to make effective use of jurors including: achieving optimum use of jurors; minimizing inconvenience to jurors; determination of the minimally sufficient number of jurors needed by the courts for trials; and coordination of jury management and calendar management. By reducing the financial considerations that will go along with reporting to jury duty, more members from the public will respond to a jury summons.
6. A
form is used by the jury commissioner in
7. A number of issues relating to efficient use and management were raised at the symposium. The ABA Standards would serve as both a starting point and a resource for this committee. A number of states have already adopted the standards with modifications.
8. Discrimination was less common, but still pronounced during intermediate stages of proceedings. Additionally respondents felt voir dire proceedings (67.5%) and jury verdicts (82.5%) were stages in which racial bias was more likely to occur. Sentencing decisions were also though to be influenced by racial bias (67.5%). (See also Juries: Verdicts and Awards, Finding #1; Courtroom Environment: Quality of Legal Representation, Finding #11o; Criminal Justice: Outcomes, Finding #11)
Recommendations
1. Disseminate public service announcements, brochures, newspaper advertisements, and posters encouraging jury service.
2. Examine means for the expansion of jury source lists.
3. Eliminate all statutory exemptions contained in Nevada Revised Statutes—NRS 6.020.
4. Study means to improve juror utilization statewide by ensuring that jurors time is not wasted, that trial time commence as scheduled, and trial breaks be limited to the time set by the court. Additionally, the courts should consider not having any law and motion calendar on any day in which a jury trial is to commence.
5. Monitor racial and ethnic composition of jury panels and those responding to a jury summons. (See also Measurement and Evaluation, Recommendation #8)
6. Create a separate committee to study jury compensation, including but not limited to: per diem, child support, and parking. This committee should be composed of judges, jury commissioners, employers, and attorneys.
7. Encourage the judiciary to review and adopt the 1993 American Bar Association Jury Standards pertaining to juror use and management.
Findings
1. Discrimination was less common, but still pronounced during intermediate stages of proceedings. Additionally respondents felt voir dire proceedings (67.5%) and jury verdicts (82.5%) were stages in which racial bias was more likely to occur. Sentencing decisions were also though to be influenced by racial bias (67.5%). (See also Juries: Selection, Finding #8; Courtroom Environment: Quality of Legal Representation, Finding #11o; Criminal Justice: Outcomes, Finding #11)
Courtroom Experience
Findings
1. The quality of representation depends on the relationship between the youth offender and his or her attorney. Continuing Legal Education courses would be offered to provide privately retained counsel, district attorneys, and public defenders with current information concerning race, ethnicity, culture, and generational issues. Access to the courts and counsel is currently determined by the economic status of the youth offender and parents. (Access: Economics, Finding #1; Juvenile Justice, Finding #6)
2. The primary guardians of equal protection under the law for indigent defendants and non-English speaking members of the community are public defenders and court interpreters. Accordingly, the failure to adequately staff and support these court services is a major impediment to the achievement of equality in criminal processing. (See also Access: Language, Finding #3)
3. In many instances, counsel has not had the opportunity to review or have documents translated in the client’s language. In a number of cases the interpreter translates the entire document to the client outside the presence of counsel. (See also Access: Language, Finding #4)
4. Video
conferencing is not being utilized between the
5. Most frequently, and in particular at the justice court level, the time set for preliminary hearings is the first time counsel meets their client.
6. Due
to financial constrains, case loads, and resources of individuals, Public
Defender Offices (certainly in
7. Indigent defendants are provided little time to consider their options at the preliminary hearing, plea hearing, trial, and probation and parole stages of proceedings.
8. The public defender’s system, including all indigent counsel (i.e. track attorneys, court appointed attorneys, special public defender) should be reviewed by an independent entity in order to evaluate the following area: salary and promotion structure of the office; the assignment, equalization, and monitoring of the caseloads of each individual public defender; degree of efficiency in the utilization of investigators and other support staff; the adequacy of any training programs for incoming attorneys in the office; and efforts of the office to recruit minority and women lawyers and staff. (See also Court as Employer/Appointer: Hiring and Promotion, Finding #5)
9. Investigation of the facts of the case while they are still fresh is often crucial to a favorable disposition for the client, and such investigation and client contact, including the prompt assignment of an attorney should not be postponed on the basis that the next formal court date is some time in the future.
10. The
constitutional right to appointment of counsel at all stages, especially
arrest, is of little meaning if there is in fact no attorney available.
Additionally, in
11. UNLV
researches undertook a survey in the Public Defender offices in
a) As of June 1997 an attorney in the Public Defender’s Office averages approximately 95 open cases.
b) Approximately one-half of those surveyed reported that their initial contact with a client- arrested and released into the community- would typically occur within five days of arrest.
c) For those clients who remained in custody, contact was made more quickly; however, frequently the initial contact would take place in the courtroom prior to the proceeding.
d) Over the course of an entire criminal proceeding, most public defender reported typically spending only about two to three hours of total contact with the typical client.
e) Nearly one in five respondents reported only an hour or less of contact with an assigned client.
f) The vast majority of cases in the public defender’s office are typically resolved through plea bargaining agreements. Of their current case loads, public defenders expected less than five percent would be adjudicated through a trial.
g) Plea bargaining was not seen as detrimental to their clients’ interest; rather, nearly three-quarters of public defenders believed that, through plea bargaining, their clients got about what they deserved.
h) Most public defenders do not believe that the funds provided to defend those accused of crimes is equal to that provided to the prosecution.
i) One specific consequence of this under funding appears to be a lack of investigators in the public defenders office. A majority of the respondents in the survey (82.5%) reported that there were not an adequate number of investigators assigned to their office. This lack of investigators was felt to have significant and negative impact on the quality of counsel that could be provided by the public defenders office.
j) Public defenders also reported that local prosecutors typically overcharged criminal suspects in order to gain leverage for future plea bargaining negations.
k) A majority of public defenders believed that if a client is retained in custody the prosecutor would be more likely to eventually obtain an unfavorable plea bargaining agreement from a defendant.
l) Most public defenders believe that there is pressure from the court to encourage clients to accept plea negotiations.
m) The vast majority of public defenders (90%) who responded to the survey reported having handled a case in which the outcome was affected by the defendant’s race. (See also Criminal Justice: Outcomes, Finding #10)
n) Based
on their experiences in
o) Discrimination was less common, but still pronounced during intermediate stages of proceedings. Additionally respondents felt voir dire proceedings (67.5%) and jury verdicts (82.5%) were stages in which racial bias was more likely to occur. Sentencing decisions were also though to be influenced by racial bias (67.5%). (See also Juries: Selection, Finding #8; Juries: Verdicts and Awards, Finding #1; Criminal Justice: Outcomes, Finding #11)
Recommendations
1. Examine the relationship between counsel and their juvenile clients. (See also Juvenile Justice, Recommendation #1)
2. Increase financial support for the respective Public Defender’s Offices in order to secure additional attorneys, investigators, and staff. Due to financial constraints, Public Defender’s Offices are in dire need of additional staff and resources.
3. Require the following in order to ensure that counsel in providing “effective assistance of counsel”:
a) Establish
video conferencing between the respective
b) Recommend that the public defenders’ offices be required to document frequency and time spent with clients and to differentiate between in-custody and out-of-custody contact.
c) Recommend that judges document in the court record the amount of time a lawyer spent with the defendant prior to accepting a plea bargain.
d) Require public defenders to have adequate contact with their client prior to the first appearance.
e) Mandate that attorneys not be allowed to withdraw from a case in a potential punishment of life imprisonment or death after the preliminary hearing without overwhelming justification.
f) Develop and implement a policy pertaining to counsel’s “readiness” prior to proceeding with a case.
g) Ensure that the public defender’s office is accountable by ensuring that the investigation and preparation of a client’s case begin reasonably and promptly after arrest.
5. Develop and implement a policy requiring the public defender to identify non-English speaking individuals and the language spoken. (See also Access: Language, Recommendation #5)
6. Require the public defender’s office in each county to institute a formal training of incoming lawyers. Specifically, each office shall establish a student/mentor program for all new admittees and/or attorneys having less than five jury trials which would require, for the first six months that new admittees practice law only with an experienced attorney of at least three years.
7. Require that public defenders see their clients within 48 hours of arrest. Implement a policy that ensures clients are able to contact their attorney by telephone.
8. Ensure that indigent persons are entitled to effective assistance of counsel at all stages of the criminal justice process, including post conviction proceedings especially for offenses punishable by death or life imprisonment.
9. Require that any participation by judges in criminal negotiations be on the record including any “in chambers” conversations between a judge and counsel.
Legal profession
Recruitment/Acceptance
to law school
Findings
1. At
a public hearing convened by the Task Force, members from the audience provided
testimony noting that a law school in
2. The lack of a law school in
Recommendations
1. Encourage
the 1997 State Legislature to support and fund a law school in
2. Encourage the administration of the UNLV law
school to establish specific programs that require the students to participate
in programs designed to provide legal services to
Education
Recommendations
1. Create cultural sensitivity training programs and require judges, court administrators, court bailiffs, and court clerks in each county and in each court to attend on an annual basis. (See also Education: Court Staff, Recommendation #1)
Recommendations
1. Create cultural sensitivity training programs and require judges, court administrators, court bailiffs, and court clerks in each county and in each court to attend on an annual basis. (See also Education: Judges, Recommendation #1)
Recommendations
1. Implement school mentorship programs with bar
associations and local law enforcement agencies throughout the state providing
the opportunity at the earliest ages for students to learn how they can help in
equalizing the administration of justice in
Criminal Justice
Findings
1. On average, African American and Hispanic arrestees were slightly younger and less likely to have finished high school.
2. Males were disproportionately represented in the sample across all racial groups.
3. The
overall perception of the general public regarding police and prosecutorial
practices is that Whites fare better than non-Whites. Approximately 2/3 of the
respondents in both
4. Citizen’s complaints about police misconduct are one measure of the quality of police activity in a jurisdiction. The monitoring of trends in reports of police brutality, harassment, and discourtesy and the disposition of these allegations by race of the officer and citizen provide an indication of potential police-citizen conflict that may ultimately undermine the effectiveness of policing and public support for law enforcement practices.
5. Increasing numbers in the Hispanic, African American, and Asian American communities translates into more contact with state and local law enforcement officials. Additionally, for those police officers working in an ethnic community, specific cultural training should be created before those officers begin working in that community.
6. The earliest involvement of an attorney is absolutely necessary to avoid unnecessary and prolonged detention of arrestees.
7. Based on their experiences in
Recommendations
1. Continue to update sensitivity/cultural training fro all police academy recruits and officers, including all administrators from sheriffs to sergeants.
2. Collect and distribute to the standing committee bi-annual data from Police Department’s review systems on police misconduct. The data should include the race and gender of both the officer and complainant along with the nature of the complaint to identify potential bias.
3. Recommend that any citizen review boards be independent of the agencies they review. Such review boards should be given clear jurisdictional guidelines to avoid conflict with other reviewing bodies such as the civil service review boards.
Findings
1. Living arrangements, residential stability and employment are given substantial weight in determining whether arrestees are granted non-bail release.
2. The majority of arrestees across all racial groups reported having a phone in their residence (having a phone is considered by intake services as a measure of stability).
3. Few of the arrestees in the sample were married, a finding particularly true for African Americans.
4. African
Americans were more likely to have prior conviction and/or a pending charge in
5. The most frequent type of release granted to arrestees was release on own recognizance (OR). Approximately 1 in 5 arrestees were released under intensive supervision. Slightly less than 1/3 of the sample was not recommended for non-bail release, and thus required to make monetary bail to obtain a release.
6. Compared to African Americans or Hispanics, White arrestees were more likely to be released on their own recognizance. Minorities in the sample were more likely than whites not to be recommended for OR release or intensive supervision, and thus be required to raise sufficient cash to obtain release pending further proceedings.
7. Controlling for other statistical variables, the findings of the analysis revealed that African Americans were nearly twice as likely to be retained on monetary bail as Whites.
8. The
finding of a race factor in pre-trial release decisions in
9. Studies of criminal justice processing in other jurisdictions indicate that conviction and sentencing decisions are strongly influenced by the defendants pretrial release status, with defendants either denied “release on their own recognizance” or unable to make bail more likely to be convicted than persons who gain pretrial release. Any system of pretrial release based on one’s financial ability to pay denies equal justice and institutionalizes bias against poor defendants.
10. “Recommendation Criteria for Release on Recognizance” forms utilized by Intake Services have not been reviewed or validated to determine if they are accurate predictors of risk to the community.
11. Standard bail practices/schedules should be reviewed on a case-by-case basis. The non-violent offenses and multiple charges arising from a single act or course of conduct need to be filtered out in order for a decision to be made on setting bail.
12. Current
practices in
13. Plea bargaining is often considered a “necessary evil”, but the reliance upon this form of case disposition may have numerous adverse consequences, such as circumventing the legislative intent of mandatory sentences and covering up abuses of an arrestee’s civil rights by unlawful police practices. Without close monitoring of plea negotiations and the establishment of standard plea negotiation guidelines, this form of case disposition provides numerous opportunities for disparities in who gets a particular type of plea concession. Studying this gap between alleged and convicted charges for those convicted by plea provides a means of assessing disparities in this stage of criminal processing.
14. Over 90% of criminal convictions occur as a result of a plea bargain.
Recommendations
1. Appoint a committee consisting of judge, defense attorneys, prosecutors, sociologists, penologists, criminologists, and law enforcement officials, to examine the methods employed in releasing arrestees on own recognizance to ensure that the least restrictive condition of release is employed.
2. Encourage judges to consider the provisions of the federal system under the Bail Reform Act, which provide that an individual should always be considered for release unless the prosecutor, with clear and convincing evidence, demonstrates that conditions or a combination of conditions cannot be met which will ensure the individual’s appearance at all future court appearances.
3. Increase the use of third party releases to allow for a greater percentage of release of minorities and to decrease reliance on financial ability.
4. Increase intensive supervision programs for borderline arrestees to lessen the impact of economic considerations on those less likely to afford monetary bail.
5. Consider release into halfway houses of individuals awaiting court proceedings in order to maximize opportunities for continued employment and minimize the risk of being terminated from their employment.
6. Increase the use of house arrest and consider waiving of fees based on financial ability to pay.
7. Collect data to be provided to the standing committee, police, prosecution and judges identifying arrestees released by age, race, gender, jurisdiction, and language ability to assist in re-designing a release system which is not dependent upon a defendant’s ability to afford bail. (See also Measurement and Evaluation, Recommendation #9)
8. Validate
the
9. Scrutinize initial charging practices to prohibit “stacking” of charges and to make sure that alleged charges are reasonable given the circumstances of the case to prevent unreasonable bail.
10. Encourage the Nevada State Legislature to review the feasibility of setting bail for the most aggravated, single offense rather than setting bail on the basis of stacking charges arising from a single act or course of conduct.
11. Require that all criminal defendants be formally charged within 48 hours of arrest whenever possible. Continuances beyond 48 hours should be granted by the court only if “good cause” has been demonstrated. “Good cause” shall be enunciated fully on the record and evaluated completely by the Court. These charges should be reviewed by district attorney team chiefs and/or civil review boards. This recommendation, along with all of the proposed recommendations, would be monitored and evaluated by the standing committee.
12. Examine the differences between initial charges filed and convicted to determine the nature and potential magnitude of racial and economic differences, if any, in plea negotiation outcomes. To formalize the process, increase the number of settlement conferences in criminal cases.
13. Request the Nevada State Legislature to conduct a study reviewing the feasibility of increasing the use of issuing citations or summonses rather than jailing individuals for non-violent felony offenses. The legislature should also study the feasibility of charging municipalities for house arrestees in county facilities.
14. Create a system within the District Attorney’s office in each county, and City Attorney’s office of each city, to monitor charging practices and to report such findings annually to the standing committee.
Findings
1. Slightly over 1/3 of the residents agreed with the statement, “prosecutors recommend more severe sentences for African American defendants.”
2. The majority of residents believe that (i) African Americans are more likely to be convicted than white suspects who commit the same crimes; (ii) poor defendants get longer prison sentences than middle class defendants; and (iii) African American jurors are more lenient toward African American defendants than White defendants.
3. The Probation Success Probability Scale (PSP) is the primary tool for Probation Officer’s recommendation of the appropriate sentence in the Pre-sentence Investigation Report. Given that judges follow the recommendation in the PSI in nearly 95% of the cases, it is imperative that the items used in the PSP scale actually predict risk of unsuccessful probation.
4. There are major racial differences in the scoring of particular items in the PSP scale. If these items do not predict success on probation but are used to determine one’s sentence, racial bias to the detriment of non-white defendants are perpetuated in the justice system.
3. The following issues were identified and should be considered with reviewing the format used in the PSP scale:
a) Prior Criminal History—Combine “times in jail” with “prior incarcerations” to reduced perceived double impact of the same basic issue. Add a weapons section to reduce the possibility of violent offenders receiving probation.
b) Present Offense—Eliminate “plea bargaining benefits for the applicant.”
c) Social History—Combine employment, employability, and financial sections as they are all closely interrelated and when kept separate form economic bias; eliminate the military consideration; and adjust the family situation criteria to include “and other support systems.”
d) Pre-Sentence Adjustment—Replace the two criteria entitled, “attitude toward supervision” and “attitude toward offense” with “receptivity to supervision.”
4. The Judicial Assessment Commission report noted the following:
“ Although the document is merely
advisory to the court, the fact is that judges follow the recommendations in
the PSI in the vast majority of cases (75-95 percent), which suggests that it
is the crucial determinant of sentencing in
5. Presently the PSP scale is not available to defense counsel.
6. The
indeterminate sentencing structure used in
7. The following excerpt is from the Judicial Assessment Commission report:
“First, for many potential offenders, incarceration has limited deterrence value and education, treatment, and rehabilitation is more effective. Second, prison is extremely costly, if not the most costly sentencing option. Third, it is simply becoming a reality that at some point the demand for prison space may be impossible to meet. The criminal justice system must continue to be innovative in finding creative and effective alternatives to imprisonment of offenders of nonviolent crimes.” Id at 38. (See also Criminal Justice: Incarceration, Finding #1)
8. Individuals surveyed, however, tend to disagree that (i) African Americans get longer prison sentences than Whites and (ii) juveniles who are a minority member are given harsher treatment by the juvenile courts than white juveniles. (See also Criminal Justice: Incarceration, Finding #2)
9. Alternatives to incarceration such as boot camps, drug courts, different levels of supervised probation, and diversion programs have become increasingly popular. However, it is currently unknown whether these programs are being utilized in a non-discriminatory manner and whether they can be used to reduce racial and economic disparities in incarceration rates. (See also Criminal Justice: Incarceration, Finding #3)
10. The vast majority of public defenders (90%) who responded to the survey reported having handled a case in which the outcome was affected by the defendant’s race. (See also Courtroom Environment: Quality of Legal Representation, Finding #11m)
11. Discrimination was less common, but still pronounced during intermediate stages of proceedings. Additionally respondents felt voir dire proceedings (67.5%) and jury verdicts (82.5%) were stages in which racial bias was more likely to occur. Sentencing decisions were also though to be influenced by racial bias (67.5%). (See also Juries: Selection, Finding #8; Juries: Verdicts and Awards, Finding #1; Courtroom Environment: Quality of Legal Representation, Finding #11o)
12. Nationally,
it is well established that African Americans and other minorities are over
represented among those on death row. In 1995, African Americans comprised over
40% of those awaiting execution. When other minority groups were included, the
non-white composition of death row inmates reached approximately 43% (BJS,
1996). These figures should be interpreted in light of the fact that 13% of the
13. In
14. More
recently, according to
White Males- 42(50%)
African American Males- 31 (37%)
Hispanic Males- 8 (10%)
Asian American Males- 1 (1%)
Cuban Males- 1 (1%)
African American Females- 1 (1%)
In short, minority offenders now constitute half those on death row.
15. During
the 2.5 year period of the study, 12 of the 16 counties in
16. The District Attorneys who had eligible cases for seeking the death penalty reported that they gave little or no weight to the racial, ethnic, and social economic factors associated with the defendant or the victim. One respondent reported that the minority racial or ethnic group status of the victim carried slight or moderate importance. In addition, other respondents pointed out that if the racial or ethnic status of the victim were a factor in the crime—as in a hate crime—the factor would be of maximum importance. Another District Attorney rated the defendant’s membership in a minority racial or ethnic group as having maximum importance, without comment or explanation.
17. Research revealed that some of the six District Attorneys in counties with eligible homicides used very formal methods, others used less formal ones that included consultation with others, and one District Attorney indicated that the decision was made acting alone. In none of the counties with eligible cases did the District Attorneys indicate that they took all eligible cases forward as death penalty cases.
18. Without
the kind of structured interviews used in this study to collect the information
presented here, the Task Force could do no more than speculate or generalize
based on the anecdotal information about what the District Attorneys in
Recommendations
1. Create and continue to update cultural sensitivity training for all state and local/juvenile and adult justice related agencies to ensure that cultural proficiency and competency are enhanced.
2. Empirically validate the primary instrument used in the Pre-Sentence Investigation Report to determine the recommended sentence for convicted felons, the Probation Success Probability Scale. The validation of these instruments should be undertaken by an independent organization other than the Department of Parole and Probation.
3. Require that defense counsel be granted access to the PSP scale and be afforded the opportunity to prepare a written response to the judge for consideration during sentencing. Review of the report by defense counsel provides a cross check on the accuracy of information and allows counsel to prepare a written response.
4. Recommend that legislators and criminal justice officials should clearly articulate the specific purposes for punishment of criminal defendants (e.g., deterrence, selective incapacitation, rehabilitation, retribution).
5. Recommend that the State Legislature, or if it is in existence, the Governor’s Sentencing Commission, study and consider the adoption of sentencing guidelines (such as adopted by Minnesota) as a means of eliminating racial, economic and geographical disparities.
6. Examine alternatives to incarceration such as boot camps, drug courts, different levels of supervised probation, and diversion programs to determine whether they are being utilized in a non-discriminatory manner and whether they can be used to reduce racial and economic disparities in incarceration rates. (See also Criminal Justice: Incarceration, Recommendation #1)
7. Adopt the following Judicial Access Commission recommendation: “[The Department of] Parole and Probation should administer transitional housing, day treatment centers, assessment centers and expand its use of electronic monitoring, intensive supervision and counseling services.” Id at 37.
8. Encourage the legislature to revise the death penalty statues in order to mandate uniformity within the state of the decisions and methods for seeking the death penalty for those eligible pursuant to N.R.S.200.033.
9. Require the district attorneys provide to the standing committee Task Force or other appropriate body a detailed description of the procedures followed in reaching a decisions as to whether to prosecute a homicide as a capital case. This description should include how the office of the district attorney determines its decision and who participates in that process. A standard reporting format should be developed for this description, and should included, at least, the following: (1) Who participates in the decisions reached by the district attorney’s office at all phases of the process that leads to an ultimate decision to prosecute a homicide as a capital case. Individuals who participate in the process should be identified by name and position. Phases of the decision process include the identification of statutory aggravating circumstances, the decision to charge them or not, as well as the decision to request the death penalty in cases with identified aggravators. (2) The nature of the participation of each of the individuals as participants in the process. (3) In the case of a process that involves one or more individuals other than the district attorney, whether the process is a formal, written policy of the office or informal practice. (4) What factors are taken into account in addition to the statutory aggravating circumstances listed in the NRS, in deciding to prosecute a homicide that is deemed to have one or more aggravating circumstances? (5) Whenever a change in policy or practice occurs, a revised description should be supplied to the standing committee. This revised description should explain the reasons for the changes made. The reporting of this information should be consistent for collection and reporting purposes.
10. Require annually that district attorneys provide to the standing committee detailed descriptions of each homicide in their counties for the preceding calendar year. This report should include social and demographic information on any defendants and the victims, as well as other information described in Criminal Justice: Outcomes, Recommendation #9 and #11. If appropriate, other criminal justice system agencies may be used as supplemental sources of the required information. The reporting of this information should be consistent for collection and reporting purposes.
11. Require
the standing committee to publish annually a report on the death penalty in
12. Adopt the American Bar Association Section of Individual Rights and Responsibilities/Section of Litigation Standards regarding death penalty cases established in February of 1997.
13. Encourage the District Attorneys throughout the state, in conjunction with the annual District Attorneys’ meeting, to discuss and share procedures for capital cases in order to ensure that the process is fair and consistent throughout the state. The Task Force specifically recommends the format used by the Clark County District Attorney’s Office as an initial starting point in formulating such uniform procedures.
Findings
1. The following excerpt is from the Judicial Assessment Commission report:
“First, for many potential offenders, incarceration has limited deterrence value and education, treatment, and rehabilitation is more effective. Second, prison is extremely costly, if not the most costly sentencing option. Third, it is simply becoming a reality that at some point the demand for prison space may be impossible to meet. The criminal justice system must continue to be innovative in finding creative and effective alternatives to imprisonment of offenders of nonviolent crimes.” Id at 38. (See also Criminal Justice: Outcomes, Finding #7)
2. Individuals surveyed, however, tend to disagree that (i) African Americans get longer prison sentences than Whites and (ii) juveniles who are a minority member are given harsher treatment by the juvenile courts than white juveniles. (See also Criminal Justice: Outcomes, Finding #8)
3. Alternatives to incarceration such as boot camps, drug courts, different levels of supervised probation, and diversion programs have become increasingly popular. However, it is currently unknown whether these programs are being utilized in a non-discriminatory manner and whether they can be used to reduce racial and economic disparities in incarceration rates. (See also Criminal Justice: Outcomes, Finding #9)
Recommendations
1. Examine alternatives to incarceration such as boot camps, drug courts, different levels of supervised probation, and diversion programs to determine whether they are being utilized in a non-discriminatory manner and whether they can be used to reduce racial and economic disparities in incarceration rates. (See also Criminal Justice: Outcomes, Recommendation #6)
2. Require the Governor’s Sentencing Commission, if it is in existence, to report annually to the standing committee, judiciary, and the executive and legislative branches of government, the rate of incarceration by race and gender, and incarceration rates based upon ability to afford retained counsel.
3. Implement
an independent study on the predictors of recidivism among
4. Study case processing and case outcomes for different groups of offenses (i.e., robberies, burglaries, drug cases, larcenies, and weapon offenses) to empirically determine the nature and magnitude of disparities.
Court as
employer/appointer
Findings
1. It has become obvious to Task Force members that the public’s perception of the justice system as a whole stems from its basic composition. That is to say that the personnel at all levels of the court system should adequately reflect the racial, ethnic, social-economic and gender diversity of the state itself and in particular the community it serves. At the current time no such documentation is compiled which would enable the standing committee to monitor the statistical composition of the aforementioned areas. (See also Perceptions: Public, Finding #3; Measurement and Evaluation, Finding #3)
2. The
September 1994 report submitted by the Judicial Assessment Commission entitled,
“Simplifying the Maze: A Long Range Strategic Plan for
“Diversity—Courts, institutions and communities are not well-prepared for the increased social diversity of the future. Group conflicts and racism can be expected to be resolved by the courts.” Id at 9.
And,
“Changing Workforce—The composition of the workforce will have increasing proportions of women, minorities and immigrants. It will also be an aging workforce with increasing numbers of older workers desiring and/or needing to extend their working life.” Id at 10.
The format for reporting this information could be decided by
the standing committee and become part of the annual report submitted to the
Nevada Supreme Court. This information is necessary to ensure that our public
workforce is representative of
3. As
4. According
to recent projections by the state demographer, the Hispanic population is the
fastest growing segment in
5. The public defender’s system, including all indigent counsel (i.e. track attorneys, court appointed attorneys, special public defender) should be reviewed by an independent entity in order to evaluate the following area: salary and promotion structure of the office; the assignment, equalization, and monitoring of the caseloads of each individual public defender; degree of efficiency in the utilization of investigators and other support staff; the adequacy of any training programs for incoming attorneys in the office; and efforts of the office to recruit minority and women lawyers and staff. (See also Courtroom Environment: Quality of Legal Representation, Finding #8)
Recommendations
1. Encourage the courts, local law enforcement agencies, and state and local juvenile justice related agencies to strive toward a diverse workforce.
Findings
1. Information
is the key. By providing information to each branch of government and policy
makers at both the state and local levels, more efficient and effective
policies will be the result. The courts, state legislators, county
commissioners, and city councils will continue to be informed on important
issues relating to
2. By
involving representative from local law enforcement in the Governor’s Juvenile
Justice Commissions grant cycle process, the innovation and creativity of their
active involvement will only benefit
3. A compilation of promising grass roots early diversion and intervention programs and approaches will serve as a resource to local law enforcement officials and community leaders throughout the State. These programs would also serve as successful models that could also be disseminated to the parents and guardians.
4. A concern that has been expressed relates to qualifications for acceptance in the early diversion and intervention programs for juveniles. Although recidivism rates may be low for a particular program, the participants may only e one-time offenders. A review of programs and allocation of resources along with a review of the seriousness of the offense should take place. This would address the needs of two-time and three-time offenders. The health and public safety of the State’s local communities should not be comprised under any circumstances. Other states may have programs that have been successfully implemented.
5. More funding needs to be allocated toward recreation programs. Also, more cooperation and collaboration between youth providers and alternative methods involving parents and guardians should be encouraged. The development of programs that organize the community and pool resources should be considered.
6. The parents of youth offenders are not always available. Other alternatives need to be identified and made available to law enforcement. This would serve in the best interest of both the child and the community.
7. The quality of representation depends on the relationship between the youth offender and his or her attorney. Continuing Legal Education courses would be offered to provide privately retained counsel, district attorneys, and public defenders with current information concerning race, ethnicity, culture, and generational issues. Access to the courts and counsel is currently determined by the economic status of the youth offender and parents. (See also Courtroom Environment: Quality of Representation, Finding #1; Access: Economics, Finding #1)
8. According
to recent projections by the state demographer, the Hispanic population is the
fastest growing segment in
9. Demographic
information must be monitored on a regular basis and disseminated to the
respective state and local juvenile justice related agencies in order to
respond appropriately to the various needs of
10. Does
the certification of a juvenile as an adult have a disproportionate impact on
minority youth offenders? In order to ensure that minority youth are not being
certified disproportionately as adults in
11. Alternative
sentences for juveniles may provide additional options to judges when
determining a sentence. These alternatives could be included in the compilation
of early intervention and diversion programs. However, alternative sentences
should not compromise the health and public safety of
12. According to recent information concerning juveniles in the justice system, the increase of the number of female youth offenders continues at an alarming rate. Historically, early intervention programs have tended to focus on male youth offenders. It’s important for policy makers, law enforcement, and juvenile justice services providers to implement programs that ensure that female youth offenders are being provided with comparable opportunities and resources.
13. An efficient tracking system is essential in order to monitor juvenile offenders by race, gender, offense, and geographical data in which the offense was committed. State and local juvenile justice related agencies will be in a position to assume a proactive role with this information. This would provide them with the tools necessary for allocating resources to neighborhoods that are considered “at-risk” (i.e., early intervention and diversion programs). The State Legislature, county commissions, and city councils need to be provided with information relevant to the budgetary consideration concerning youth offenders. (See also Measurement and Evaluation, Finding #*8)
14. It is necessary to encourage the Nevada Supreme Court, the Governor, the State legislature, county commissions, and city councils to adopt resolutions requiring state and local governments to take steps ensuring that all personnel are culturally proficient and competent.
Recommendations
1. Develop an ongoing liaison between the Nevada Supreme Court Task Force, or the reconstituted standing committee, and the Governor’s Juvenile Justice Commission.
2. Continue to exchange information between the Task Force and Commission as it relates to juvenile matters.
3. Inform the Nevada Supreme Court, Governor, State Legislature, and most importantly the community of the collaboration and coordination that has taken place between the Task Force and Commission concerning juvenile justice issues—a systemic approach.
4. Ensure that law enforcement agencies are involved in the Governor’s Juvenile Justice Commission grant cycle involving early diversion and intervention programs and measures to address disproportionate minority youth confinements.
5. Compile
a list of promising, grass-roots early intervention and diversion programs and
disseminate the list to
6. Propose joint cultural diversity programs that strive toward achieving cultural proficiency and competency of the participants. The joint training will take place between law enforcement, parole and probation officers, and child services and community leaders including state legislators, county commissioners, and city council members.
7. Create diversity training programs that strive to achieve cultural proficiency and competency for personnel associated with state and local juvenile justice related agencies. Identify and address shortcomings of the courts and state and local juvenile justice related agencies regarding this issue.
8. Examine practices for the feasibility of releasing juvenile to parents at the point of arrest.
9. Examine the relationship between counsel and their juvenile clients. (See also Courtroom Environment: Quality of Legal Representation, Recommendation #1)
10. Explore
a mechanism for an interpreting system that takes into account the generational
and cultural differences as they pertain to
11. Disseminate demographic information regarding race, gender, culture, and economic status of youth offenders and their parents and legal guardians to local law enforcement and state and local juvenile justice related agencies, including but not limited to: the judiciary, public defender, and district attorney, in order for them to make informed decisio