Race and Ethnic Fairness
State:
Committee/Report
Name: The Oregon Supreme Court established the Oregon Supreme Court Task
Force on Racial/Ethnic Issues in the Judicial System on
Number of Committee Members: 18 task force members
Number of Subcommittees: No subcommittees
Chair/Co-Chairs: One
chair- Honorable Edwin J. Peterson, Former Associate Justice. One vice chair-M. Khalil Zonoozy, Director of International Student and Faculty
Services at
Methods Used:
Nine Public Hearings held throughout the state
Encouraged
Oregonians to tell the task force of their experiences in the courts and
observations regarding the treatment of minorities in the
Survey of
Surveyed 7,525 people with one of three surveys:
Main survey for lawyers, judges, court staff, and corrections personnel
Second survey for people in the juvenile justice system
Third
survey for language interpreters/translators in the
Topics and Recommendations
Access
Findings
1. The number of non-English-speaking litigants is rising at a rapid
rate.
2. Significant numbers of non-English-speaking litigants are
disadvantaged because they cannot understand the court system and its
decisions.
3. Interpreters are often not available in offices that are associated with the court system. For instance, few probation offices, drug and alcohol programs, and other treatment programs have bilingual resources. At times, interpreters are not readily available in the courtroom itself.
4. A strong perception exists in the non-English-speaking community
that many interpreters are not trained or are under trained. Sometimes court staff, friends or relatives with inadequate language translation
skills are used in an attempt to “get by” when a qualified interpreter
is not present.
5. No statewide system is in place to train, license or regulate
court interpreters.
6. Qualified court-appointed interpreters, who currently earn $25 per
hour, are underpaid, considering the skill required for their work and its
importance to the impartial administration of justice.
7. Simultaneous interpretation of oral testimony requires a high
level of training and skill. Mere proficiency in a foreign language, in and of
itself, does not qualify one to interpret in-court testimony from that language
or to that language.
8. The bar, courts and attorneys must give greater consideration to
the communication problems of non-English-speaking litigants and must
understand that even excellent interpretation does not obviate many of the
problems that arise because of cultural or class differences.
9. In a courtroom, not only is it essential that
the interpreter understand his or her role; it is also essential that all
persons in the courtroom understand the interpreter’s role.
Recommendations
1. We recommend that the Judicial Department prepare an explanation
of the court system and court process, drafted in simple format and language,
to be made available to the public. This document should address essential
issues including, but not limited to: the function and organization of the
court system, the role and responsibilities of court litigants, interpreters
and other participants, and appeal procedures. This document should be
translated into the foreign languages most frequently spoken in
2. Commonly used court forms should be translated into other languages. Small claims petitions, restraining order applications, forcible entry and detainer (FED) notices, plea petitions, diversion agreements, mediation documents and other forms to be determined by the State Court Administrator should be available not only in English, but also should be available in the foreign languages most commonly spoken in Oregon. All commonly used forms should include a question as to whether an interpreter is needed. In counties with a significant minority population, trial court administrators should post signs in appropriate foreign languages.
3. Trial courts should:
a. Increase the number of bilingual and bicultural court personnel who
have contact with the public;
b. Through a personnel plan, provide financial incentives to
employees who speak a second language and are called upon to use that language
in dealing with the public;
c. For employees and judges who are willing to take foreign language
courses, pay the tuition for the courses, if the language skills that are
learned can be used at work;
d. Actively recruit bilingual court personnel;
e. Annually monitor and report on the status of the effort.
4. The Chief Justice and State Court Administrator should forthwith implement 1993 Oregon Laws, chapter 687. The Chief Justice or State Court Administrator should forthwith appoint a committee to draft the court interpreters code of ethics. This same committee should also recommend testing, certification and oversight procedures regarding court interpreter qualifications. We recommend that the code of ethics be modeled after that used by the Registry for the Deaf or the Washington State Code of Conduct for interpreters.
5. Certified interpreter fees should be raised from $25 to $32.50 per
hour.
6. A uniform trial court jury instruction should be drafted regarding
interpreted testimony. The language of this jury instruction might be as
follows:
“All parties and witnesses testifying in open
court have the right to have their testimony articulated and heard. You are
about to hear a trial in which one or more of the parties or witnesses do not
speak English. Those parties or witnesses will be assisted by a court
interpreter. The interpreter is neutral. The interpreter has the responsibility
to translate from English to another language, or from another language to
English, truly and accurately to the best of the court interpreter’s ability
and training. “You must evaluate interpreted testimony in the same manner as
you would any other testimony. That is, you must not give interpreted testimony
any greater or lesser weight than if such testimony was not interpreted.
Neither shall you give greater or lesser weight to interpreted testimony based
on your conclusions, if any, regarding the degree of English proficiency that
the interpreted party or witness has.”
In appropriate cases, this jury instruction should be given after the jury has been impaneled and before testimony is taken.
7. Governmental agencies should provide interpreters in administrative proceedings.
8. Interpreters should be provided in all court
proceedings, including court supervised arbitration and mediation.
Juries
Findings
1. American jury systems tend to over represent white, middle-aged,
suburban, middle-class people and under represent other groups.
2. The failure of juries to represent their communities fairly is
largely a function of the selection process. Drawing jury pools from voter
registration lists tens systematically to under represent a number of different
groups of people.
3. The disparity between those who are subpoenaed and those who
actually serve enhances the under representation of minorities on juries.
4. Jurors are too readily excused for reasons that are not
legitimate.
5. The service period in many counties is too lengthy and disruptive.
In addition, juror compensation is inadequate.
6. The perception of fairness can be critical, and it is difficult to achieve that without racial or ethnic diversity among the jurors who are deciding a case, particularly when one of the litigants is a member of a racial or ethnic minority.
7. While discriminatory challenges may be used to eliminate
non-minorities, they are perceived to be more frequently used to remove
minorities from the jury. Exercising peremptory challenges solely on the basis
of race, whether the juror is a minority or a non-minority, should not be
permitted.
8. More than 40 percent of all respondents (55 percent of minority respondents) believe that a minority litigant is less likely to win a personal injury suit. Almost 45 percent of all respondents (almost 60 percent of minority respondents) agree that a minority litigant who does win is likely to receive less compensation from a jury than a non-minority litigant would.
9. Forty-four percent of all lawyers and 30
percent of all respondents believed a criminal jury trial is more winnable by
prosecutors if the defendant is a minority, while over one quarter (27 percent)
of all lawyers and 18 percent of all respondents believed a criminal trial before
a judge is more winnable by prosecutors if the defendant is a minority.
Recommendations
1. Pursuant to authority granted by ORS 10.215(1), the Chief Justice should increase the number of minorities on the source list of persons called to serve on juries and implement changes permissible under existing law. Such changes might include the use of public utility customer lists, city directories, tribal rolls and income tax lists.
2. The 1995 Legislative Assembly should consider legislation to change the
method of selecting persons to be included in the “source list” for possible
jury service in order to include more minorities in the jury pool.
3. The Chief Justice, presiding judges, State Court Administrator and trial court administrators should shorten jury terms and implement one-day/one trial practices wherever practicable.
4. ORS 10.060 should be amended to increase juror compensation. This
change has also been proposed by the Multnomah Bar Report. In view of the
financial exigencies faced by the state, such legislation would be more likely
to receive legislative approval if combined with other procedural changes (such
as the one-trial/one-day system), if it can be demonstrated that more efficient
use of jurors would minimize the total cost of an increase in juror
compensation.
5. The Judicial Department (either the Chief Justice or presiding judges) should promulgate guidelines for stricter enforcement of excuse and deferral rules. The task force believes that excuses should be the exception, not the rule, and that service should be deferred rather than excused altogether.
6. The State Court Administrator or trial court administrators should
implement a follow -up procedure to contact jurors who do not respond to the
subpoena.
7. The Oregon State Bar, with the cooperation of the Office of the State Court Administrator and the Judicial Department, should be asked to lead an intensive public relations and education effort across the state, appropriate for all media, regarding the importance and significance of jury service, the critical importance of each individual juror, and the role juries play in our judicial system. In addition to such general themes, an effort should be made to communicate specific information, including the length of required service, the amount of compensation, and the fact that an employer may not retaliate when absence from the job is attributable to jury service. Local television and radio stations may be able to assist with the development of public service announcements or short programs. Other professional organizations (such as the Oregon Trial Lawyers Association, the Oregon Association of Defense Counsel, the Oregon District Attorneys Association, the Oregon Criminal Defense Lawyers Association and the Oregon Minority Lawyers Association) may be interested in providing volunteer participants, if not financial assistance. By itself, such a public relations effort cannot succeed in increasing the diversity of jury panels. In combination with the other changes proposed above, however, such a program could play an important role in improving public perceptions and attitudes about jury service and the justice system. The program likely will encourage participation, which increases diversity (socioeconomic as well as racial and ethnic) on jury panels.
8. Every potential juror should receive an orientation (perhaps by
videotape) that not only describes the jury process, but that also includes a
succinct statement of the reasons why it is essential for every potential juror
to disclose any predisposition to judge a party or assess a witness based
solely on racial or ethnic grounds.
9. The oath given to potential jurors should include specific reference to the obligation to disclose to the court, during the jury selection process, their own bias against a racial or ethnic minority (including a specific group if appropriate), and the obligation to decide the case free from ethnic or racial bias.
10. Prior to the voir dire examination, when requested by a party or when a court believes it is appropriate, a trial court should conduct an initial voir dire of potential jurors designed to elicit any evidence of bias against a racial or ethnic minority that may affect the juror’s deliberations.
11. The Council on Court Procedures and the legislature should amend ORCP 57D, adding the following as grounds for a challenge for cause: any evidence which would reasonably suggest that the juror may possibly reach a decision based in w hole or in part on racial or ethnic bias against a party or a potential witness.
12. The Judicial Department should seek the following proposed legislation
(codifying Batson/Edmundson):
Section 1: Section
2 of this Act is added to and made a part of ORS chapter 10 or ORCP 57:
Section 2: (1) A party in a civil or criminal trial may not
exercise peremptory challenges primarily on the basis that jurors to be
challenged belong to a particular cognizable group with respect to race or
ethnicity. A rebuttable presumption exists that
peremptory challenges do not violate this subsection.
(2) If a party believes the adverse party has exercised peremptory
challenges on a basis prohibited under subsection (1) of this section, the
party so believing may move for a mistrial before the jury is sworn and outside
of the presence of potential jurors. The moving party has the burden of
establishing:
(a) That the prospective jurors excluded belong to a cognizable group
with respect to race or color; and
(b) That there is a likelihood that the adverse party has challenged
the potential jurors primarily on the basis that they belong to the cognizable
group.
(3) If the court finds that the circumstances as presented by the
moving party create a likelihood that the adverse party is challenging
prospective jurors primarily on the basis that they belong to the cognizable
group, the burden shifts to the adverse party to show that the peremptory
challenges in question were not exercised primarily on the basis of membership
by the prospective juror in a cognizable group. If the adverse party fails to
meet the burden of justification as to the questioned challenges, the
presumption that the challenges do not violate subsection (1) of this section
is rebutted.
13. The Oregon State Bar and Oregon Supreme Court should promulgate disciplinary rules that the use of a peremptory challenge to excuse a juror solely on the bas is of race or ethnicity is unethical.
14. The
“Lawyers in proceedings before
the court shall refrain from manifesting, by words or conduct, bias or
prejudice based upon race, sex, or socio-economic status, against parties,
witnesses, counsel or others. This section, however, shall not preclude
legitimate advocacy when race, sex, religion, national origin, disability, age,
sexual orientation, socioeconomic status, or other similar factors, are issues
in the proceedings.”
Courtroom Experience
Findings
1. Witnesses complained that judges and juries begin the trial
process with built-in biases against the credibility of minority witnesses and parties.
Others expressed concern that judges and juries simply do not understand
differences in demeanor that may be attributable to cultural differences and
not truthfulness.
2. References to race, when not directly relevant to the resolution of a case, are dangerous because they perpetuate, and can exploit, the stereotype that minorities are likely to commit crimes.
3. Task force survey results indicate that a vast majority of
respondents have either “never” or “rarely” observed any disrespect or discourtesy
toward minority witnesses or litigants. Nevertheless, a significant number of
respondents said they have observed such behavior. Of the minority survey
respondents, for example, 10.1 percent said that court personnel “usually”
stereotyped minority witnesses or litigants. More than a third (37.7 percent)
of the minority respondents also complained of having seen racial or ethnic
“stereotyping” in the courtroom “sometimes” or “often.” Of related concern is a
perception that court personnel do not communicate well with minorities.
Approximately a third of all survey respondents indicated that they had
“sometimes” or “often” observed court personnel, judges or lawyers having
difficulty communicating with minority witnesses or litigants due to cultural differences.
The figure is substantially higher (52.8 percent) among minority respondents.
4. Empirical studies suggest that white jurors
have more trouble distinguishing African-American faces than white faces and
that white jurors tend to assume less favorable characteristics of
African-American witnesses and defendants. The task force knows of no such
studies of
Recommendations
1. Judges should be aware of racial stereotypes lurking beneath references to race. Accordingly, judges should refer to race only when necessary to the disposition of the case.
Legal Profession
Recruitment/Acceptance
to law school
Findings
1. Although the number of minority applicants to
2. All three
3. The three
4. The number of bilingual attorneys is believed to be small in comparison
to the number of non-English-speaking litigants. One method of remedying this
problem is to increase the number of bilingual law students and afford them an
opportunity to pursue a legal career in
5. The
average percentage of minority students who graduated from
6. All three
7. The Bar offers a Professional Partnership Program designed to provide a bridge between minority students and members of the professional legal community.
8. The minority passage rate of
the bar is significantly lower than the non-minority passage rate.
9. The Bar, in conjunction with the three law schools and a distinguished
group of legal employers, offers the First-Year Honors Program. This program is designed to provide summer
job opportunities for minority law students in
10.
Recommendations
1.
2. Organizations that provide funding and scholarships, such as the Oregon
Law Foundation, should increase their efforts to provide funds to
3. Law schools should commit more of the money they obtain from their fund
raising efforts to programs targeting minority students and applicants.
4. Still greater efforts must be made to enlarge the pool of
5. Each law school should address the lower graduation rates among minority law students. This should include an objective evaluation of the scope and effectiveness of each school’s academic support programs.
6. Each law school should endeavor to guarantee academic support, from
matriculation to graduation, for those minority students who need it; at a
minimum, providing academic support for all first-year courses and all “bar
exam courses.”
7. We encourage each law school to consider weighing bilingual skills in the admissions process.
8. To help eliminate racial/ethnic bias in the legal system, law school
curriculum should place a greater emphasis on cultural differences and
disparate treatment of minorities in the judicial system by encouraging faculty
to incorporate in their course materials discussions of the legal issues that
particularly affect minorities. For example, in a course on criminal procedure,
a professor might discuss whether minorities are stopped by the police based
solely on race. These issues should also arise in clinical programs and law
school competitions. For example, in a client counseling competition, students
might be required to represent non- English-speaking persons or persons
unfamiliar with the
9. In addition to revising their curricula, law schools should also offer
several lectures or presentations each year that directly focus on how cultural
differences affect legal rights. Non-minority students and faculty should be
required to participate and attend.
10. Minority alumni from all three schools should
continue to take an active role in providing support and counseling to law
students. Minority
Findings
1. A significant percentage of all respondents believe that minority lawyers receive disparate treatment in their legal careers. A significant number of all respondents believe that minority lawyers find it harder to get jobs and to be promoted after they get a job.
2. The perception that affirmative action “cheapens” a law degree may “adversely affect the careers of minorities whether or not they were admitted under affirmative action programs.”
3. The percentage of minority
attorneys in the largest law firms in
4. Few minority lawyers occupy positions of responsibility in the Oregon State Bar or in bar related organizations.
Recommendations
1. In order to encourage more minority Oregonians to consider legal
careers, the Oregon State Bar and the legal profession must assume lead
roles. Grade school and high school
students should be exposed to persons in a legal career. Lawyers should
participate in a variety of programs to teach minority youth about the legal
system. The Oregon State Bar should
initiate a partnership with
2. Law schools should encourage law students and faculty to commit
themselves to “pro bono” work directed toward encouraging minority youth to
consider a legal career by participating in the high school program as guest
speakers and mentors.
3. Law firms, state agencies and other employers of lawyers should
evaluate their hiring practices to avoid bias in the hiring process. The Oregon
State Bar should have a program to assist law firms, including education in
“how to insure that you r hiring practices are free of racial and ethnic
bias.” Managing partners in law firms
and representatives from the
4. The
Civil and Family
Findings
1. The few number of comments addressed to problems arising in civil litigation probably can be attributed to two factors: on the one hand, an overrepresentation of minorities at the charging level in the criminal justice system (regardless of the cause; and, on the other, an underrepresentation of minorities in civil litigation.
2. The task force heard testimony
indicating that minority litigants lack sufficient knowledge about the civil
justice system. Moreover, many
minorities believe they can obtain little if any help from it, and frequently
may be unrepresented by counsel. More than half of all survey respondents (and
more than two-thirds of minority respondents) agreed that minority litigants
“use the courts less.” Correspondingly, more than 80 percent of all respondents
(and only slightly less than 80 percent of minority respondents) believed that
minority litigants distrust the legal system more than do non-minority
litigants. Almost three-fourths of all respondents (and slightly more of the
minority respondents) agree that minority litigants are less likely to
understand the legal system.
3. Several witnesses at hearings emphasized the need to translate court
forms into commonly used foreign languages, particularly in forcible entry,
small claims and abuse prevention matters, where litigants often are
unrepresented by counsel.
4. Many witnesses stated that true accessibility to the legal system
requires the availability of bilingual court staff. A system is truly
accessible when simple questions can be asked and answered regardless of the
racial, cultural or linguistic background of the questioner.
5. Several witnesses pointed out that even English-speaking members of racial or cultural minorities may need a form of “interpreter” just as much as persons who don’t speak English.
6. Accessibility issues arise also in relation to administrative remedies such as workers’ compensation. The task force heard testimony that Hispanics who are injured on the work site are not told about workers’ compensation benefits and frequently have no knowledge of their rights. Even if they know that benefits might be available, some Hispanic workers fear retribution and are reluctant to report that injuries are work related, witnesses said. Even if these hurdles are overcome, lack of qualified interpreters and bilingual attorneys create ongoing difficulties. Even where interpreters are available, attorneys often do not have the necessary language skills and cultural understanding to evaluate their clients’ claims and communicate adequately with experts and referees.
7. More than two-thirds of all respondents (and 80 percent of minority respondents) reported instances of lawyers having difficulty communicating with minority witnesses or litigants because of cultural differences that are not language-related. More than half of all respondents (and almost two-thirds of minority respondents) have observed instances of lawyers’ stereotyping witnesses or litigants because of their race or ethnic origin. More than half of all respondents (two-thirds of those who had an opinion), and more than 60 percent of minority respondents (three out of four of those with an opinion) believed that cross-cultural diversity training for all legal personnel would help attain fair treatment.
8. Six percent of all respondents (and more than 20 percent of minority respondents) stated that they observed courts showing disrespect or discourtesy toward minority litigants more than “rarely.”
9. Fewer than nine percent of respondents believed that child support awards are enforced less vigorously for minority than for non-minority children; slightly less than 15 percent believed that the courts treat domestic violence cases more seriously when non-minorities are involved.
10. Attorneys handling workers’ compensation claims for minority claimants sometimes lack the necessary cultural understanding to evaluate adequately their clients’ claims and to communicate adequately with experts and referees.
11. Fewer than 25 percent of all respondents (but almost 45 percent of minority respondents) believe that juries will award less compensation to minority plaintiffs than to non-minorities.
Recommendations
1. The Chief Justice should ask the Uniform Trial Court Rules Committee
(or other appropriate body) to consider a rule to the effect that relevant
documents in languages other than English may be accepted by the court so long
as they are accompanied by certified translations, or are themselves
translations of English documents which are in the file.
2. The
3. ORS 656.056 should be amended to require all employers subject to the Workers’ Compensation Act, who know or should know that one or more employees do not speak English or read English, to post notices in the appropriate foreign languages that inform workers of their rights and to provide claims forms in the appropriate foreign languages. The law also should be changed to require the Workers’ Compensation Division of the Department of Consumer and Business Services to prepare such notices and forms for use by employers when appropriate and to notify employers of their availability. The legislation might include provisions that non-complying employers, as well as their insurers, who fail to post the notices should not be able to avail themselves of time limitations in the Act, if the failure of a worker to file a claim results from the failure to post the notices. The legislature should also consider such legislation in other areas of the law.
4. The
5. As a part of the Mandatory Continuing Legal Education requirement, the Oregon State Bar and Supreme Court should require all lawyers to certify completion of at least three hours of cross-cultural diversity training during each reporting period. The bar should also certify appropriate cross cultural diversity training programs to meet this requirement.
6. The State Court Administrator should develop
forms (to be filed with the initial appearance) asking civil litigants in all
cases to provide information, including race and ethnic origin, for
demographic, statistical and record keeping purposes. The administrator should
also be requested to develop a computerized record for this information, which
would support searches using variables that include racial and ethnic origin
and would be available to members of the public. (The task force notes ORS
18.425, which requires all attorneys to file, in every civil action for
personal injuries, a civil action reporting form. This might be an avenue to
obtain the information.)
Criminal Justice
Findings
1. A large number of witnesses complained of police stops, citations or arrests based solely on the color of a person’s skin.
2. Witnesses complained of a lack of civility, or outright hostility,
from law enforcement officers for no apparent reason other than their color.
3. Witnesses complained of the extent to which law enforcement
officers appear more incline to use unreasonable force or deadly force against
minorities than against white suspects.
4. Arrest data compiled by the State of
Recommendations
1. The Chief Justice should recommend to the Governor:
a. That all Oregon State Police officers be required to receive
cross-cultural awareness training, including training on the extent to which cultural
differences may be relevant in investigations and other law enforcement
activities;
b. That the Board on Public Safety Standards and Training be required
to offer similar training as a prerequisite to certification.
2. All law enforcement agencies—state, county,
and city—should implement a hiring program designed to attract minority and
bilingual police officers.
Findings
1. Research in other jurisdictions suggests that racial and ethnic
minorities—particularly African Americans and Hispanics—are much more likely
than whites to be charged with felonies, especially if the victim is white.
2. Many
3. Charging practices no doubt vary considerably from county to
county; no uniform charging guidelines exist at this time.
4. A number of witnesses believed that race was a factor in
prosecutorial charging decisions. Witnesses testified that persons of color are
more likely to be charged with crimes than whites engaged in the same
activities and that persons of color are more likely to be charged with more
serious crimes than whites engaged in the same activities. Witnesses also
testified that the color of the victim appears to be a factor taken into
account by prosecutors: if the victim is white, the prosecutor is more likely
to charge than if the victim is not.
5. The task force considers unacceptable the nearly complete absence
of any limitations on the prosecutor’s charging authority.
6. Task force survey results show that about half the respondents
(47.8 percent) said that minority defendants are less likely than non-minority
defendants to be released without bail pending trial. A third of survey
respondents felt that minority defendants are more likely to have higher bail
set for them. Among minority respondents to the survey, the percentage o those
who believe that minorities are less likely to be released on their own
recognizance is substantially higher (65.2 percent). Similarly, more minority
survey respondents (55.5 percent) said that minority defendants are likely to
have higher bail set for them than non-minority defendants.
7.
Recommendations
1. District attorneys should be required to collect and report to the Criminal Justice Council data on the variable of race in all charging decisions.
2. The
legislature should direct the Criminal Justice Council to develop uniform
charging standards to be used by all prosecutors in
3. The Chief Justice should require trial judges, in rendering pretrial
release decisions, to use uniform forms that include the race of defendants.
4. The legislature should direct the Criminal Justice Council to study and report the extent to which the race of a defendant affects the outcome of a pretrial release decision, either in the decision whether to release on personal recognizance or in the conditions of release.
5. The Chief Justice should propose that ORS 135.230(6)
be amended to include the following as a “release criterion”: “the defendant’s
ability to provide cash, stocks, bonds or real property to secure a promise to
appear in court.”
Findings
1. The perception exists that minorities are more likely to receive greater sentences than non-minorities upon conviction of the same offences and are more likely to receive a sentence of prison than probation.
2. Although racial disparity has been reduced significantly, it still exists under the state’s sentencing guidelines. That disparity appears to be more pronounced when judges retain discretion to depart from the presumptive sentences contained in the grid. In such cases, Hispanic offenders appear to be treated more severely than African-American offenders, and African American offenders more severely than white offenders.
3. Obtaining explanations for departures from the presumptive sentence is complicated by the unavailability of the judges’ stated reasons. Although judges are required to state their reasons on the record, that information is not readily available without ordering a transcript in each case. The guidelines reporting form submitted by the court in each case records only a few categories of bases for departure decisions, and those categories are too broad to provide any meaningful explanations.
4. Not all counties are reporting sentencing decisions as required while others are reporting only partially hampering the ability of the Sentencing Guidelines Board and others to evaluated the effectiveness of implementation of the guidelines, and possibly unfairly skews the results that are reported.
Recommendations
1. The Chief Justice should require trial judges to use a uniform judgment form, or other uniform form that includes the defendant’s race and that states specifically the reasons for a departure (in those instances in which a departure sentence is imposed) from a presumptive sentence applicable under the guidelines.
2. Because some counties have not been reporting as required, all counties
should be required to submit sentencing guidelines reports timely and in a
complete manner.
3. The Sentencing Guidelines Board should again consider amendments to the sentencing guidelines that establish a five-year sunset period for consideration of prior criminal history.
4. Because of the immense help that its
statistics have been to this task force, and because it is imperative that such
statistics be available in the future, the Criminal Justice Council should
continue to study and report on racial disparities in sentencing.
Findings
1. Offender population statistics reveal a disproportionately high
percentage of minorities subject to Department of Corrections supervision in
one form or another. While African Americans represent 6.4 percent of all
arrests, they make up 7.8 percent of the criminal convictions and 13.2 percent
of the prison population. It is difficult to avoid the conclusion that racial
bias accounts for at least some of the cumulative increase in the proportion of
minorities.
2. A disproportionately large percentage of participants in vocational assistance are non-minorities, while the percentage of minority participants is generally lower than the minority share of the prison population for all groups except Asians.
3. African American and Hispanic inmates participate in adult basic education at a rate that exceeds the percentage of their prison population. This is most likely a product of the educational background of offenders, i.e., white offenders tend to come to prison with more education on the average than do minority offenders.
4. The percentage of minorities working for the Department of Corrections is slightly more than 11 percent. However, the number of minorities at management levels in the Department is quite low, particularly at institutions that house large percentages of minority offenders. That fact no doubt contributes to the impression that the department employs too few minorities.
5. Since 1989 sentencing decisions have been subject to uniform guidelines, but the same has never been true of parole revocation decision, or decisions to grant or deny institutional “earned time credits” (which can reduce an offender’s prison term), and other prison and post-prison supervision decisions. These decisions should be monitored for consistency and possible racial or ethnic bias.
Recommendations
1. The Department of Corrections and the Criminal Justice Council should
be required to monitor and report whether race, ethnicity or cultural
differences of inmates play a role in revocations of parole or post-prison
supervision or probation status or in administrative processes, such as
granting or denying earned time credits.
2. The Department of Corrections should examine the requirements of inmate participation in educational, vocational and treatment programs to determine whether the entry requirements operate in a manner that systematically disfavors any racial or ethnic group.
3. The Department of Corrections should develop
a program designed for employees to enhance retention and promotional
opportunities of minorities.
Court as employer/appointer
Findings
1. The racial/ethnic composition of the judiciary is not
representative of the populations served by the courts. Of 172 judges in the judicial
system, only four are minorities, none of whom are minority women. Members of
the bar should encourage minority lawyers to become judges.
2. The proportion of racial/ethnic minorities serving as non-judicial
court employees is not representative of the populations served.
3. Racial/ethnic minorities are under-represented in all non-judicial
court positions.
4. To the extent that minorities are represented in non-judicial
court positions, they are concentrated in office/clerical positions.
5. Few minorities are on judges’ staffs.
6. No minority court administrators are employed in the state.
7. No comprehensive programs implemented by the Judicial Department
or by individual judicial districts specifically aim to increase minority
representation in non-judicial court positions through specific policies
and procedures.
8. Of the 49 statewide positions in the executive, administrative and
managerial court staff categories, none is filled by a minority.
Moreover, several large
9. Findings
regarding the lack of minority representation of non-judicial employees are
even more disturbing when one considers that the Judicial Department goal
apparently intends to comply with federal Equal Employment Opportunity (EEO)
Guidelines based on 1990 census figures. These figures are outdated, and do not
accurately reflect the population makeup of most counties. Comparing 1990
census figures with current school enrollment figures shows a significant
increase in the minority population of the state since 1990. For example, the
1990 Census reported
10. Substantial problems exist in communication between minorities and non-minorities in the court system, irrespective of the language spoken. A large percentage (64.1 percent) of all respondents to the main survey concluded that court personnel have some difficulty communicating with minority witnesses or litigants because of cultural differences that are not language-related. A slightly lower percentage (53.6 percent) of the same respondents believe that court personnel sometimes stereotype minority witnesses or litigants because of their race or ethnicity. (See Appendix 1.) The response of minority respondents is even more dramatic. For example, 73.6 percent of minority respondents to the main survey believe that court personnel have some difficulty communicating with minority witnesses or litigants because of cultural differences not language-related. Over 67.6 percent of minority respondents also believe that court personnel sometimes stereotype minority witnesses or litigants due to their race or ethnicity. Such problems exist within most work forces that include minorities and non-minorities. Education of staff is the best way to address this problem.
11. Minority employees believe they are discriminated against in terms
of advancement opportunities and their treatment by judges, staff, attorneys
and the public. This finding is based on personal interviews with a sampling of
minority staff members, survey results returned by Judicial Department
employees, and statements made by minority court employees at public hearings.
12. Support exists for cross-cultural diversity training in minority issues for all legal personnel. In response to the statement, “[S]ensitivity training in minority issues for all legal personnel would help attain fair treatment for all within the court system,” 50 percent of all respondents to the survey agreed. A recurring theme among those testifying at task force hearings was the belief that cross-cultural diversity training for judges and court employees would help to increase understanding and achieve fair treatment for those who work in the court system, and for those who come in contact with the court system. Ongoing cross-cultural training is the key.
Recommendations
1. Judicial selection committees should include the goal of achieving racial/ethnic diversity in the judiciary as on e of the factors considered in making judicial appointment recommendations to the Governor, and the Governor should be encouraged to consider this factor in making judicial appointments. Members of the bar should develop a pool of qualified minority judicial candidates.
2. Presiding judges and administrators responsible for hiring and
promoting should give high priority to the goal of achieving racial/ethnic
diversity at all levels of Judicial Department employment when making hiring
and promotion decisions. Administrators and judges must be held accountable for
failing to recruit, hire or promote minorities. The Judicial Department
personnel office should have, as a performance goal, a marketing plan to reach
minority applicants. All job openings should be advertised in ways to reach
minority applicants.
3. Judges and administrators responsible for filling vacancies should be trained in methods of attracting qualified minority employees, including methods of identifying a wider, more ethnically diverse applicant pool to increase the number of minority applicants. They should be more aggressive in advertising and recruiting for qualified minority applicants for managerial and supervisory positions. Notice of job opportunities should be made known as early as practicable. The task force has been given numerous suggestions: advertising in minority publications, posting job announcements with various minority organizations (many have “job banks”), and emphasizing a preference for otherwise qualified job applicants who are bilingual.
4. Judges, administrators and all court personnel must be convinced, through education, of the need for and value of increasing the diversity of the work force at all levels. Diversity includes a message of inclusion rather than exclusion and, once achieved, will bring a variety of perspectives of human experiences, greater awareness and a more productive work force.
5. Ongoing cross-cultural awareness training should be established for
judges and court staff, with the objectives of (1) creating an environment
where individual differences are valued, not merely tolerated, and (2) creating
a heterogeneous environment, rather than simply assimilating minorities into a
dominant majority work environment.
6. The Judicial Department should increase its efforts to train and
attract bilingual employees. Suggestions include:
1. See Recommendation 2.
2. Hiring preference should be given to otherwise qualified bilingual
employees and applicants fluent in a language common to the environs of the
courthouse.
3. The
Judicial Department should reimburse the cost of judges and court personnel
learning a second language that could be used at work.
7. Each court should appoint an ombudsperson who would investigate
complaints against staff relative to allegations of racial bias. The State
Court Administrator should appoint a person to act as a liaison between
management and staff concerning staff racial issues or problems. Periodic
reports should be made to the State Court Administrator and Chief Justice.
8. The Chief Justice should appoint an ombudsperson to investigate complaints against judges and administrators relative to allegations of racial bias.
9. The success, or lack of success, of improving diversity in court
staffing must be monitored. Specific goals and standards (in addition to
numerical goals) should be developed to measure whether diversity is being
achieved. The Chief Justice and State Court Administrator should monitor this
improvement (or lack thereof) at least annually to ensure that needed diversity
is achieved. The monitoring should focus on equal opportunity plans, recruiting
minorities for the more responsible and m ore visible positions, cross-cultural
diversity training, and the development of standards to assess progress other
than on a purely numerical basis. We
recognize that development of non-numerical standards to evaluate success is a
difficult challenge. But
10. The Supreme Court, Chief Justice and State Court Administrator should
adopt a canon for judges and administrative rules for staff that would prohibit
discriminatory conduct. The judicial canon could be patterned after the ABA
Code of Judicial Conduct 3B(6) (which has not been adopted in
11. Canon 2 of the Code of Judicial Conduct should
be amended to provide: “A judge should not engage in conduct, on or off the
bench, that reflects or implements bias on the basis of race, sex, religion,
ethnic or national origin, or sexual orientation (including sexual
harassment).” See the Draft Report of the National Commission on
Judicial Discipline and Removal, 102–03 (