Race and Ethnic Fairness
State:
Committee/Report Name: New York State Judicial Commission on Minorities, established in 1987. The final report was published April 1991. (KFN5950 .A84 1991)
Number of Committee Members: 18 Commission Members
Number of Subcomittees: No Subcommittees
Chair/Co-Chair: Franklin H. Williams, attorney
Methods Used: Methodologies include public hearings, public meetings, judges’ meetings, court administrators’ meetings, bar associations’ meetings, an anonymous complaint line was established, surveys were conducted, and empirical research was conducted.
Topics and Recommendations
Findings
1. There
is a general public perception of bias in the courts of the State of
2.
Vestiges of long standing discrimination by a variety of institutions and
entities against Blacks, Hispanics, Asian Americans and Native Americans
pervade their respective perceptions of their ability to achieve justice in the
courts of the State of
3. The lack of readily available information about the court system makes it difficult for all users of the court to negotiate the system.
4. The minority litigant who enters the courtroom may perceive the environment to be hostile, especially in the “ghetto courts.”
Recommendations
1. Informational brochures, written in easily understandable English, and translated into Chinese dialects, Haitian Creole, Korean and Spanish, should be published and made available in each clerk’s office and Office of Ombudsperson. These brochures should contain information relating to dispute resolution entities other than the courts.
2. There should be an Office of Ombudsperson in each court to assist all persons in understanding court processes, to secure interpretation services and to locate facilities (such as childcare facilities, where they exist). The Office of Ombudsperson would also notify all users of a court (i) that complaints about the court or about court personnel can be made to that office, and (ii) that the office would attempt to resolve all complaints expeditiously. (See also Complaints and Discipline, Recommendation #1)
Access
Findings
1. There are many barriers to greater utilization of the court system by minorities. Minorities often cannot afford counsel, confront serious language barriers and perceive the courtroom as a culturally alien and hostile place. (See also Access: Cultures, Finding #1; Access: Economics, Finding #1)
2. A wide variety of languages are spoken by linguistic minorities, whose access to the courts and opportunities for full integration in the courtroom processes in many courts is significantly impaired by the unavailability of interpreters.
3. The existing statutory scheme commits to the discretion of local court administrators the responsibility to determine the interpreter needs of their respective courts. There is no central entity that monitors the availability of interpreters or the planning process in which local court administrators engage in order to determine the numbers of interpreters needed.
4. Most courts maintain no data on the numbers of litigants requiring interpretation of court proceedings and are therefore unable to document the need for these services in submitting budget requests.
5. The quality of both full-time and per-diem interpreters is reported to be low in many courts.
6. In 1986 the Office of Court Administration sought to rectify the problem of poorly qualified interpreters through training sessions and development of competitive examinations for some languages. Lists of qualified interpreters are being disseminated to local courts.
7. Nevertheless, the evaluation of the competence of interpreters is all too often left to informal procedures, such as evaluation by judges, satisfaction of the parties, and appraisal by court personnel.
Recommendations
1. Existing court-tour programs sponsored by the Office of Court Administration should be expanded, taking into account the needs of “language minorities,” including Asian Americans, Haitian Creoles and Hispanics.
2. The Chief Judge should encourage and the legislature should enact a comprehensive statue that ensures that linguistic minorities have access to interpreters in court proceedings.
3. The Office of Court Administration should require local court administrators to maintain the data necessary to determine the interpreter needs of minority litigants within their respective jurisdictions and to allocate resources accordingly.
4. There should be a state office to prescribe the qualifications of full time and per diem interpreters; to ensure a uniform certification process; and to administer their training.
5. There should be a code of ethics to govern all persons who interpret court proceedings.
Findings
1. There are many barriers to greater utilization of the court system by minorities. Minorities often cannot afford counsel, confront serious language barriers and perceive the courtroom as a culturally alien and hostile place. (See also Access: Language, Finding #1; Access: Economics, Finding #1)
2. Native
Americans of the Indian nations located in
3. The governments of these nations are concerned that their sovereignty be recognized and, in accordance with that desire, they manifest varying degrees of willingness to participate in programs and activities sponsored by the state government.
4. Representatives of these nations believe that their right to govern Indian lands has been challenged in recent years by state court decisions.
5. Provisions of the Indian Child Welfare Act designed to protect the interests of Indian nations are not being uniformly honored by the courts.
6. Native Americans residing on Indian lands confront unique difficulties in meeting bail requirements because they do not hold individual title to the land they occupy. Representatives of at least one Indian government have sough unsuccessfully to have special arrangements recognized wherein the Indian Nation would guarantee payment of bail in case of default.
Recommendations
1. A formal commission should be established and provided with a broad mandate to study and develop ways to address issues of concern that arise between the state judicial system and Native Americans.
2. The Chief Judges should notify all state court judges of the absolute necessity of abiding by all provisions of the Indian Child Welfare Act. Judicial seminars on the Act are also recommended. In addition, a system of monitoring custody proceedings involving Indian children should be established to ensure that there is full compliance with the requirements of the Act.
3. A proposal should be developed, in consultation with Indian nation governments, for bail alternatives for Indian nation residents. Once developed, this proposal should be circulated to judges and to the governments of the nations for their approval.
4. Proposals and guidelines should be formulated
to permit attorneys and advocates certified to practice in Indian nation court
systems to be called on by state court judges as “friends of the court” when
matters of Indian law or custom may be involved in a case. The Commission
believes that, where appropriate, the use of persons trained in Native American
court systems is needed to ensure that the requisite expertise on Native
American issues and concerns will be adequately presented in
Findings
1. There are many barriers to greater utilization of the court system by minorities. Minorities often cannot afford counsel, confront serious language barriers and perceive the courtroom as a culturally alien and hostile place. (See also Access: Language, Finding #1; Access: Cultures, Finding #1)
Juries
Findings
1. Minorities are significantly underrepresented on many juries in the court system.
2. This underrepresentation contributes to public perceptions of unequal treatment of minorities by the courts.
3. There is reason to believe that minority underrepresentation affects jury outcomes in ways that disadvantage minority litigants.
4. The point or points at which minorities tend to be excluded from the jury selection process are not well understood, in part, because data concerning racial identity are not collected from potential jurors.
5. Just
as OCA has no mechanism in place to monitor the racial representativeness of
juror pools, it has no mechanism in place to correct juror pools with a
disproportionately low number of minorities. This inability contrasts with OCA’s ability to monitor juror pools for gender
representativeness, an ability that has permitted
6. The net effect is that the court system labors under a perception of inequality in jury selection without means to refute or remedy the situation. Nevertheless, the Commission has identified several practices which is believes require corrective steps.
7. OCA relies on just three lists—operators of motor vehicles, registered voters and individuals to whom state income tax forms are mailed—to compile its master juror source list. While the use of these lists individually and exclusively has been held by the courts not to discriminate against minorities, as a practical matter, they do not yield sufficient minority representation on jury pools. Commissioners of jurors already possess the discretion to develop additional procedures to ensure that juries will come from a fair cross section of the community, but such additional procedures are not widely used.
8. The Commission’s review of the overall response rates of the general public to jury notices indicates that this is another point at which minority/non-minority disparities may arise. Overall response rates are very low, and differences in the response rate of minorities and non-minorities may result in an underrepresentation of minorities in jury pools. Practical and budgetary constraints prevent extensive reliance on judicial remedies to increase the jury notice response rate, but administrative steps are available and have been instituted in a number of counties to increase the response rate.
9. Despite case law prohibiting the practice, a perception exists among some litigators that the exercise of race-based peremptory challenges in criminal cases continues to be used to exclude minorities from juries.
10. In addition to being underrepresented on juries, there is reason to believe that minorities are disadvantaged as litigants and witnesses by the failure of the voir dire process to uncover racial bias among prospective jurors. Many litigators believe that questions about racial feelings are frequently answered dishonestly, and these perceptions are reinforced by social science research findings. Because of social pressure, prospective jurors may be less likely to respond honestly to questions about racial bias that are posed by someone in authority or in a group setting. Many litigators report that it is common for judges, who are clear authority figures in the court, to participate actively in voir dire questioning and for the questioning to be conducted in groups.
Recommendations
1. Additional lists (e.g. utility bills, library address lists, high school graduates lists) should be used to identify potential jurors in order to insure that minorities are included on master juror source lists in proportion to their number in the population.
2. The OCA should encourage appropriate entities to make public service announcement emphasizing the importance of jury service.
3. Jury commissioners should expand or adopt a practice which permits jurors to be “on call” by telephone to encourage jury service.
4. Commissioners of jurors should inquire about race in the questionnaires they send to identify citizens who qualify for jury duty. Data compiled from these questionnaires should be monitored to determine minority representation on the master juror source list. If minority representation falls below levels roughly proportionate to their numbers in the community, special initiatives should be undertaken to correct the imbalance.
5. Judges should exercise heightened scrutiny to ensure that peremptory challenges are not used improperly in the voir dire process.
6. Judges should be discouraged fro engaging in group questioning of potential jurors regarding their racial feelings, and rather than doing it themselves, they should be encouraged to permit counsel to conduct this questioning.
Courtroom Experience
Findings
1. Individual cases are assigned to judges in either of two ways—by random wheel selection or outside of a wheel. The great majority of both white and minority judges perceive the case assignment process to be fair, but a significant number of minority judges disagree. Their complaints include charges that high profile cases are not fairly assigned.
Findings
1. Court personnel are frequently disrespectful and discourteous to minority litigants, family members and witnesses. They refer to them by derogatory terms such as “skell” (defined as “bum, worthless person, trash, nigger”).
Findings
1. Nearly
half of all litigators surveyed by the Commission reported experiences of unfair,
insensitive or otherwise different treatment of minority attorneys, litigants,
jurors or witnesses in
2. The confidence of minority litigants in the court system is undermined by the speed with which their cases are frequently decided, a phenomenon known as “assembly line justice.”
3. Many minority litigators believe that they are treated with less professional courtesy and respect in the courts than their white counterparts. They report that they are more likely to be asked whether they are attorneys, to be required to pass thorough screening devices, and to be questioned about their credentials. Moreover, they are less likely to be accorded the respect by judges, other attorneys, jurors, and non-judicial personnel. Many minority judges are also aware of the less than professional courtesy extended to minority litigators.
Findings
1. Since minorities are disproportionately represented among low-income segments of the population, the availability of legal representation to individuals with low incomes significantly affects the availability of legal representation to these minority group members.
2. There
has been a growing recognition in
3. Nevertheless, measures currently in place are inadequate to ensure competent, let alone equal, legal representation for the minority poor.
4. Evidence from Commission surveys of judges and litigators also supports the conclusion that minorities are more likely than Whites to suffer from inadequate legal representation.
5. On the civil side, the growth of the Legal Services Corporation during the late 1960s and 1970s held promise for extending a range of basic legal services to the poor, but cutbacks, in its funding and rage of permissible activities during the 1980s, have enlarged the gap between available resources and existing needs.
6. Laudable efforts have been made within the state to make up for lost federal funding, but they have not been sufficient to close the existing deficit in services.
7. On the criminal side, and in some civil matters, attorneys are provided as a matter of right to indigent defendants, either by government contract with providers of legal services such as the Legal Aid Society or by court appointment of individual attorneys.
8. In recent years, the share of al such legal services provided by court-appointed counsel has grown.
9. A concerted effort is needed to expand the quantity and improve the quality of legal services available to minorities.
Recommendations
1. Attorneys who represent the indigent on an ongoing basis—public defenders, the Legal Aid Society and 18-B attorneys—should be certified for this representation. Certification would require completion of specified courses, including courses in criminal procedure and general litigation. A course in diversity sensitivity training should also be required. Commercial organizations, such as the Practicing Law Institute, should be encouraged to provide these courses at reduced rates for those seeking certification, and for those who have been certified and who are seeking renewal.
Legal Profession
Recruitment/Acceptance
to law school
Findings
1. There
is a marked shortage of Native American attorneys practicing in
2. Minority students participate in all stages of the recruitment and admission process at only a few schools.
3. No school has a full-time minority recruitment director or coordinator, i.e., an individual whose sole responsibility is recruitment of minority students.
4. Four schools maintain no data on the number of minority applicants and thus are unable to measure systematically the effectiveness of outreach strategies; three schools maintain only aggregated data on minorities as a single category rather than from distinct groups.
5. At some schools, some applicants for admission (including some minority applicants) are reviewed separately from other candidates on the basis of factors in addition to LSAT and GPA scores that the schools consider helpful in determining whether the student will be able to succeed in law school.
6. There is general agreement that more money is needed and that lack of scholarship funds deters minority enrollment.
7. Eight schools provide academic orientation programs prior to the start of first semester classes. There program are generally open to all students who believe that they need additional assistance.
8. Most schools provide individual or small group tutorial assistance to minorities.
9. Some minority students consider tutorials unduly burdensome. Students universally condemn programs that delay tutorial assistance until after a student has fallen into academic difficulty.
10. Student satisfaction seems greatest in schools which offer a maximum of academic support either before the start of school or early in the semester. Highly institutionalized, formal academic support systems in which professors participate seem to elicit the most enthusiastic student response.
11. Failure of faculty and administration to condemn swiftly and conclusively racist behavior contributes to minority students’ sense of isolation and intimidation.
12. Minority retention rates vary markedly among the schools.
13. Academic performance is the central concern for minority students, most of whom see financial worries and social conflicts as onerous distractions from academic pursuits.
14. Most schools have yet to recognize that all courses need to be reviewed to ensure historical accuracy, which would, by necessity result in cultural inclusion.
15. Many minority students are troubled by the avoidance of any race-specific discussions or by a lack of acknowledgement of the different perspective and life experiences that minorities bring to the study of law.
16. While schools have made few efforts to examine curricula from a minority perspective, there seems to be a growing awareness, among students and faculty alike, that racial sensitivity should be part of a lawyer’s competency and training.
17. Relatively few minorities are on law review/legal journals. At some schools this is because there are so few minorities in the school.
18. As of the summer of 1989, three schools had developed either an affirmative action program or a diversity consideration for membership on at least one of the school’s student-run scholarly journals.
19. During 1989 minorities were disproportionately underrepresented among adjunct and part time faculty. Thus schools are not achieving commensurate diversification among that group of instructions which constitutes the largest pool of instructors.
20. Paralleling law school competition for minority students, competition for faculty is affected by school reputation and environment, financing, a limited candidate pool, and applicant qualification.
21. Minorities
are passing the
22. The entire legal community—law schools, private and public sector law entities, bar associations, as well as the New York State Board of Law Examiners—has a stake in increasing minority pass rates.
23. Structured bar examination programs organized and run by non-profit groups such as bar associations have been shown to increase minority pass rates.
24. The
25. Minorities are not adequately represented among contract graders and staff of the New York State Board of Law Examiners.
Recommendations
1. Concerted efforts should be undertaken to increase the number of Native American attorneys in the state. These efforts should include the recruitment and encouragement of high school and college level Native Americans to consider legal careers; and assisting Native Americans engaged in legal study to complete successfully the process leading to bar admission. Qualified Native American candidates for judicial appointments should be identified and recommended.
2. The Commission recommends law schools develop a mechanism which would ensure a systematic approach to minority issues so that all policies, activities, and initiatives at the law school are reviewed with an eye toward minority input and a concern for minority impact.
3. The Commission recommends ongoing and routine data collection and analysis regarding minority applications, acceptances, admissions, placement, and bar passage. Only though such systematic data collection and analyses can a law school conduct ongoing self-assessments regarding how well it is meeting its goal of improving minority education.
4. The Commission recommends outreach to high schools, including visitation programs, big brother/sister programs, and special presentations to encourage minority student interest.
5. The Commission recommends outreach to other audiences (e.g., paralegals) which have large minority populations.
6. The Commission recommends use of Candidate Referral Service lists to contact all minorities who take the LSAT. Such mailings should include a brochure that is specific about the minority experience at the law school.
7. The Commission recommends law schools have contacts with college advisory offices and minority student organizations, which make it clear that the law school is interested in recruiting minority students.
8. The Commission recommends that law schools visit historically black colleges and other colleges with high minority representation.
9. The Commission recommends law schools sponsor minority law forums to which accepted students are invited, as well as systematic outreach through telephone calls and mailing to encourage enrollment of those who have been accepted.
10. The Commission recommends law schools have administrative support for minority student organizations to make it possible for them to be involved in all aspects of recruitment, admission and enrollment including making funds available for brochures, travel, telephone calls, receptions, and other special events.
11. The Commission recommends law schools offer pre-law summer programs.
12. The Commission recommends law schools undertake a curriculum review that creates a climate in which all professors understand the importance of an “inclusive” curriculum. American law is, in central and crucial respects, a product of racial and ethnic conflict and an accommodation to racial and ethnic differences. Students should be taught about these matters because it is impossible to understand American law without exploring these issues. All faculty should receive assistance in developing materials that illuminate the effects of race and ethnicity upon legal decision-making and the effects of legal decisions upon racial and ethnic minorities. Some faculty may need assistance in understanding that race-blind discussions are often factually misleading, and may leave minorities feeling invisible or alienated. Other faculty may need assistance in becoming comfortable with race-conscious discussions. These issues should be the subject of faculty retreats, seminars or extended meetings.
13. The Commission recommends law schools review law school programs to ensure that there are no unjustifiable barriers to minority participation and that minority students are actively sought out for inclusion. Minority student organizations should receive timely information regarding openings and submission deadlines for all such programs and should do special mailings and hold special forums and workshops to encourage minority student participation and to provide substantive assistance where needed.
14. The
15. The
Commission recommends that law schools in
16. Schools
should create a special tutorial program for graduating students who may be
likely to have difficulty in passing the bar examination. The program should
aim to create a relationship between the school and these students that will
last until the bar examination is taken. An excellent model is the tutorial
program conducted by the Association of the Bar o the City of
17. The state an/or the legal profession should make financial resources available to eligible bar examination candidates so that they will not have to be employed while they study for the examination.
18. Applicants who fail the bar examination should be informed by the New York State Board of Law Examiners, that the time results are communicated, that repeat takers have been found to have an increased chance of passing.
19. The
20. The
21. Since minority law graduates are likely to continue, for some considerable time, to enter into or function in the profession as solo practitioners or member of small minority firms, law schools should consider adding courses to the curriculum which seek to inform and educated students about the managerial, business and ethical problems of solo or small firm practice.
Findings
1. All schools promulgate an anti-discrimination policy to prospective employers.
2. Only three schools do not allow prescreening of applicants for on-campus interviews.
3. Many students—minority and otherwise—are precluded from gaining employment due to criteria such as academic performance and/or law school activities. Employers generally take a narrow view of “qualification” rather than a broader view.
4. Most, but not all, schools make some special efforts to assist minority students in job placement activities.
5. The greatest variability in job placement is not among races but among schools. Three schools place more than 60% of their graduates in firms with 50 or more lawyers; one school places more than 40% of its graduates in such firms, and the remaining 11 schools place less than 25% of their graduates in similarly sized firms. Thus it is not that minorities at the majority of schools are not being placed in large firms. At most schools relatively few graduates enter large firms.
6. At all but two schools, placement rates in government jobs are higher for minorities than for whites.
7. Many interviewees felt that minorities disproportionately choose public sector employment, not as their preferred field, but because of limited opportunities for minorities in the private sector.
8. Schools with the highest clerkship placement rates tend to place their minority and white graduates in clerkships at comparable rates. High minority clerkship placement rates at other schools tend to disguise that fact that those schools, having exceedingly small minority student bodies, achieve a high placement rate only by virtue of the small number involved.
9. Minority
representation in the legal profession lags far behind the representation of
minorities in the general population. In 1980 there were 62,032 lawyers in
10. There is widespread agreement among the majority of judges and litigators in every race/ethnic group, including Whites, surveyed by the Commission, that increased representation of minorities among lawyers appearing in New York State Courts is important.
11. Most law firms/organizations have no systematic program for increasing their complement of minority attorneys. Moreover, there are myriad problems relating to hiring criteria and practices that impede minority hiring.
12. The
larger firms in
13. There is a large gap between the respective perceptions of white and minority, particularly black, litigators in relation to hiring opportunities. Most black litigators believe their credentials have to be extraordinary in order to be hired; by contrast large numbers of white litigators believe that hiring standards are lowered for minority attorneys.
14. The absence of race and ethnic data on the New York State attorney registration form makes it impossible to determine the validity of the perception that minorities are overrepresented in particular types of practice (e.g., solo and government practice).
15. The majority of litigators in each minority group feels excluded from opportunities for advancement and that they lack mentors. Many feel that they receive less feedback about their work and that they are assigned less complex cases.
16. There has been a history of exclusion of minorities from membership in certain established bar associations. Some of these bar associations have made recent efforts to rectify the situation by establishing committees on minorities in the profession. The Commission’s data show that minority litigators are joining these bar associations and participating in committees in the same proportions as whites.
17. Minority litigators, especially Blacks, reported much higher rates of dissatisfaction with their opportunities in the legal profession than did white litigators.
Recommendations
1. The Commission recommends development, by the placement office, working with the office of minority affairs and with the minority student organizations, or a series of mechanisms and activities designed to assist minority students.
2. The Commission recommends networking by faculty hiring committees with minority alumni, other minority professionals and minority organizations in order to identify potential law teachers. More assertive outreach will not only identify a wider pool of potential teachers but will also convey to the minority community the seriousness and sincerity of the effort. This in turn will eventually encourage more minority lawyers to apply for teaching positions. There should be a particular effort to increase the number of minorities in adjunct positions.
3. Organizations
which employ lawyers, e.g., law firms, corporations and government agencies,
should adopt strategies to increase minority representation within their
respective firms/organizations. The Commission recommends expansion of
initiatives such as the PALS program in
4. Legal employers should adopt structured outreach and recruitment to (a) increase their visibility in the minority legal communities though a structured outreach program; (b) consider, in making hiring decisions, a broader range of skills and predictors of success; and (c) create environments supportive to minorities.
5. Information regarding attorney positions in both private industry and in government should be widely disseminated.
6. Firms/organizations should increase the number of minority attorneys in their employ. They should review their interviewing processes to purge them of any techniques which may discourage minority applicants, and reevaluate their hiring criteria which would result in a more diverse work force. Firms should make direct and explicit statements that qualified minorities are actively desired as members of the firm so that minority candidates do not deselect themselves from firms with few minority attorneys. Firms/organizations should avoid reliance on hiring criteria such as LSAT scores and grades.
7. Law firms should consult with minority partners and organizations composed of minority lawyers with respect to the hiring and employment practices of the firm.
8. Mentoring processes for minorities who are currently employed in firms/organizations should ensure that minorities are receiving as much support as their white counterparts in the competition for professional advancement.
9. The work environment of minority attorneys employed by government should be improved through a program that would include mentors, standardized evaluations, feedback, diversity training and a review of promotional practices to assure there is no operative bias against minorities ascending to supervisory roles.
Education
Recommendations
1. To the extent that the Office of Court Administration has not implemented programs of sensitivity training for judges and non-judicial personnel, it should implement them. Training should include, as a critical component, a program of “cross-cultural competence,” which would include: (a) the capacity to understand and appreciate different values, languages, dialects, cultures and life styles; (b) a capacity for empathy that transcends cultural differences; (c) avoidance of conduct that may be perceived as demeaning, disrespectful, discourteous or insensitive to persons from other cultural groups; and (d) a critical understanding of stereotyped thinking and a capacity for individualized judgment. (See also Education: Court Staff, Recommendation #1)
2. Judicial training programs should include a review of alternatives to incarceration, especially with respect to circumstances common among minority defendants. (See also Criminal Justice: Outcomes, Recommendation #1)
3. Educational
material and seminars should be developed for judges and other appropriate
judicial personnel regarding the historical and legal bases of the sovereignty
of Indian nations located in
4. All judicial personnel should receive more mandatory diversity training to enhance their cross-cultural competence.
Recommendations
1. To the extent that the Office of Court Administration has not implemented programs of sensitivity training for judges and non-judicial personnel, it should implement them. Training should include, as a critical component, a program of “cross-cultural competence,” which would include: (a) the capacity to understand and appreciate different values, languages, dialects, cultures and life styles; (b) a capacity for empathy that transcends cultural differences; (c) avoidance of conduct that may be perceived as demeaning, disrespectful, discourteous or insensitive to persons from other cultural groups; and (d) a critical understanding of stereotyped thinking and a capacity for individualized judgment. (See also Education: Judges, Recommendation #1)
Recommendations
1. The judicial outreach program that is being conducted by the Office of Court Administration on a pilot basis to communities, and the voluntary judicial mentoring of high school students should be continued and expanded.
Civil and Family
Findings
1. A widespread perception exists that minorities tend to receive smaller awards in civil cases than similarly situated non-minorities in counties with low minority populations.
2. An extensive body of social science research tends to confirm that juror behavior in civil cases in affected by racial considerations in ways that disadvantage minority litigants.
3. There
is one study conducted in
4. The Commission’s analysis of data from a
study of housing courts in
Recommendations
1. The Commission recommends that the Office of Court Administration collect racial data on litigants in civil cases, (a) to prepare a study on this subject to determine whether there is a disparity in civil case outcomes and damage awards based on race, and (b) to consider distribution of the study to judges for the monitoring of the consistency of awards to minority and non-minority litigants in civil cases.
Criminal Justice
Findings
1. The Commission adopts the findings of the Enforth Report that the present pretrial processing system from arrest to trial is characterized by inordinate delays due to the following factors: increased arrests, holding space limitations and an antiquated and overburdened system of record keeping.
2. Bail considerations may be based, in part, on the value systems of judges who lack cross-cultural sensitivity to the familial and cultural realities of minority life-styles
3. The procedures for the return of cash bail are confusing, complex and unnecessarily difficult.
Recommendations
1. Judges should review their bail and sentencing decisions to ensure that they are fair and not influenced by racial or ethnic stereotypes.
2. The Office of Court Administration should adopt a judicial training program that reviews the bail statute, to highlight the available alternatives to money bail.
3. Proof of exoneration should result in the automatic return of cash to the rightful party.
Findings
1. There is a perception, supported in some aspects by research findings, that there is a disparity that can be attributed only to race in the rate of convictions and types of sentences
Recommendations
1. Judicial training programs should include a review of alternatives to incarceration, especially with respect to circumstances common among minority defendants. (See also Education: Judges, Recommendation #2)
2. Sentencing statistics concerning the race of victim, defendant and complainant should be maintained along with case outcomes and should be published by the Unified Court System in cooperation with the New York State Division of Criminal Justice Services.
Court as employer/appointer
Findings
1. Some Native Americans who came before the Commission are hesitant to take the oaths of office required for certain types of employment within the judicial system (as well as other professions). Based on their view of sovereignty, they fear that swearing allegiance to a “foreign” constitution may undermine their status as Indian-nation citizens.
2. By any measure, minorities are grossly underrepresented in supervisory and other high level administrative positions within the court system.
3. Whites comprise 82% of the entire non-judicial work force of 12,000 employed.
4. A draft Affirmative Action Plan developed for OCA for non-judicial employees by an independent consulting firm in 1979 was not adopted by OCA because no one at OCA took the initiate to see that it was approved.
5. The EEO office within the OCA has been relegated to a second class status and as a consequence, there ahs been a pronounced underrepresentation of minorities in many non-judicial job categories, particularly within the critical policy-making categories.
In 1989, this Commission issued an Interim Report to Chief Judge Wahctler bringing to his attention the underrepresentation of minorities in the non-judicial work force, the lack of an affirmative action plan, and the second-class status of the EEO office.
6. Following the issuance of this report the Unified Court System prepared an analysis of the representation of minorities in the non-judicial workforce (“a utilization analysis”), which found acute underrepresentation of minorities in the official/administrator job category and underrepresentation within the judicial work force as a whole.
7. In 1989 Chief Judge Wachtler appointed a task force to remedy the racial imbalance found in this utilization analysis, and asked this Commission to assist the task force to develop a specific program to increase outreach, recruitment and hiring of minorities—and women—as part of a work force diversity program.
8. In December 1989 the Task Force issued its report with its recommendations for rectifying the underrepresentation of minorities—and women—disclosed in the utilization report.
9. The Commission adopts the finding sand applauds the reform efforts of the Task Force and Chief Judge Wachtler in responding positively to the concerns of the Commission as set forth in its Interim Report, but believes there are still areas where the diversity plan and its implementation are incomplete, such as the underrepresentation of minorities as court officers.
10. The present testing system in certain job titles is not producing a diverse work force.
11. There is a perception among some that notices of promotional and enhancement opportunities for non-judicial personnel are not generally given to minorities.
12. An opportunity exists for increased minority participation in contracting with the UCS. A majority of administrative judges do not contract for any services and among the few who do directly contract for such things as data processing, equipment maintenance, security services, record storage and the like, none is specifically aware of the contracts with any minority owned businesses.
13. UCS contracting authorities are becoming more sensitive to the possibilities and need for increasing minority participation in court contracting.
Recommendations
1. Alternative methods should be explored for increasing the employment of Native Americans within the court system, methods sensitive to concerns held by certain Native Americans regarding the taking of an oath of office.
2. The implementation commission recommended by this Commission should monitor the EEO efforts of the Unified Court System (among other things).
3. The judges within the Unified Court System should use their discretionary ability to hire employees to diversify their own work force, for example, in connection with the hiring of law clerks.
4. The Unified Court System should continue to review and develop alternatives to testing in job classifications requiring testing and to allow for the consideration of an individual’s past performance. Whether non-judicial employees are selected on the basis of written examinations or on the basis of other measures, cross-cultural competence should be one of the skills for which candidates are tested.
5. The Unified Court System should monitor its testing system in job classifications requiring these test on a continual basis to ensure that it is fair to all applicants and inclusive of all eligible minorities.
6. To the extent that the following measures have not already been adopted by the Unified Court System, the following procedures should be adhered to: job opportunities in the Unified Court System should be made available to all; notices of vacancies should be disseminated state-wide; all eligible employees for particular jobs should be notified; no job vacancy should be filled until the time for application has expired and, where appropriate, the closing date should be extended; a statement should accompany each notice that no informal choices will be made; and finally, the EEO unit of OCA should monitor this process.
7. Increasing and ensuring minority contracting opportunities should be made an integral part of the comprehensive UCS “Workforce Diversity Program” and a specific aspect of the EEO Director’s job. This program sets forth a series of management initiatives aimed at broadening the pool of qualified candidates for positions in the court system. The goal of the Program is to achieve a truly diverse non-judicial work force. The Program requires each judicial district, court or OCA office to appoint an EEO Staff Liaison to assist in conducting outreach and recruitment efforts to implement the Program.
8. To the extent the OCA Minority and Women-owned Business Enterprises policy does not so provide, the following should be adopted:
a) An information campaign should be instituted in minority business circles to apprise prospective bidders of contracting opportunities. Extensive use should be made of trade publications accessible to minority enterprises.
b) Diversity training should sensitize UCS contractors to the need for minority participation and encourage them to include minority businesses on lists of potential contractors when bids are being solicited.
c) Goals and timetables should be established, similar to those required under the “Workforce Diversity Program,” including both annual and longer range goals based on the degree of underutilization of minority contractors. The EEO office should assist in providing information necessary to establish these goals and timetables. The EEO Director should gather statistics and other information providing evidence of past discrimination to justify a compelling interest in applying whatever remedies are deemed appropriate.
d) Executive Order No. 21 should be adopted. This articulates the state policy regarding the opportunity for full participation in our free enterprise system by traditionally, socially, and economically disadvantaged persons, which is essential if we are to obtain equality and improve the functioning of our state economy. The order encourages the greatest possible participation of minority businesses in all state contracts and directs efforts to provide technical and management assistance to minority owned enterprises.
e) There
should be monitoring of the diversity program of all subcontractors whether
private or municipalities and a “best efforts” requirement to diversify when
contracting for security outside the
f) The OCA should identify and utilize minority-operated banks for monies received by UCS in the first instance.
g) Officials should seek out minority professionals for consultation and personnel services contracts.
h) OCA should actively solicit the participation of minority contractors in the construction of court facilities.
Findings
1. Relatively few litigators in any racial group have applied for a fiduciary appointment; among those who have, most received an assignment. The Commission has no evidence that minorities are less likely to receive assignments once they have applied. The absence of race data on fiduciary assignments, however, makes it impossible for the court system to monitor the access of minority attorneys to fiduciary appointments.
Findings
1. There is a perception that minorities are underrepresented in the state judiciary in comparison to the available pool of qualified attorneys. Minorities are underrepresented on the bench in many of the courts in comparison to their share of the overall population.
2. There is a particular need for more minority judges in upstate districts.
3. There is a pool of minority applicants for judgeships who have been rates as qualified but who have not been appointed.
4. The Commission reached no conclusion as to whether the elective or appointive process of judicial selection is likely to produce more minority judges. However as they presently function, both methods can be improved to insure adequate representation of minorities in the state judiciary.
5. Minorities are underrepresented on both bar association judicial screening panels and on official judicial screening and nominating panels, responsible to appointing authorities.
6. Judicial screening panels sponsored by bar associations have little or no control over the pool of potential judges they are asked to evaluate.
7. The great majority of bar association judicial screening panels give little or no weight to racial/ethnic diversity of the judiciary in evaluating judicial candidates.
8. There is no centralization of information regarding the availability of quasi-judicial positions (e.g., referees), resulting in insufficient dissemination of such information. Thus, such positions remain largely unknown to the minority bar.
Recommendations
1. The Commission makes no recommendation about which method of judicial selection—appointive or electoral—should be preferred.
2. Appointed officials and political leaders have the power to and should achieve increased representation of minorities on the bench.
3. More minorities should be included on judicial nominating and screening panels. These panels should actively strive to inform all potentially qualified minority attorneys of judicial vacancies and encourage their interest and application. Persons screened should be examined for racial and ethnic biases and for cross cultural sensitivity. A prior record of superior service to minority communities should be viewed as a positive factor is assessing a candidate’s qualifications for judicial office.
4. A concerted effort should be made to sensitize all persons with responsibilities in the judicial selection process to the importance of greater racial and ethnic diversity in the state judiciary.
5. Minority
judges in
6. More minority judges should be appointed to supervisory and administrative positions within the judicial system.
7. Information regarding the availability of quasi-judicial positions should be made routinely available.
8. The Commission recommends the adoption of random selection of judges to preside over all criminal cases.
Findings
1. There is a perception among black litigators that minority attorneys are more likely than white attorneys to be disciplined by a grievance committee or disciplinary committee of the Appellate Divisions of New York State. Moreover, more black, in contrast to other minority, litigators reported knowing minority attorneys who had been disciplined. The absence of race data on disciplined attorneys makes it impossible to confirm these reports.
2. Minorities are underrepresented on the staff of the New York State Commission on Judicial Conduct and only one of the Commissioners thereon is a minority.
3. The Commission on Judicial Conduct does not have an internal statistical base for tracking types of complaints received as to those cases which remain confidential.
4. There is no adequate mechanism for registering complaints regarding instances of racial and ethnic disparagement by members of the non-judicial work force in the court system.
Recommendations
1. There should be an Office of Ombudsperson in each court to assist all persons in understanding court processes, to secure interpretation services and to locate facilities (such as childcare facilities, where they exist). The Office of Ombudsperson would also notify all users of a court (i) that complaints about the court or about court personnel can be made to that office, and (ii) that the office would attempt to resolve all complaints expeditiously. (See also Perception: Public, Recommendation #2)
2. The
3. The Commission on Judicial Conduct should give complaints of racial bias high priority and keep records of its investigations and disposition of charges in a manner permitting analysis of whether there were any patterns of racial or ethnic discrimination.
4. The Unified Court System should adopt a complaint system to deal with complaints of discrimination within the Unified Court System, and promulgate and publicize a system of sanctions for this behavior.
Findings
1. The facilities of many courts used mainly by
minorities—particularly the so-called “ghetto courts” of the City of
Recommendations
1. The City of
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