Race and Ethnic Fairness
State:
Committee/Report
Name: The Pennsylvania Supreme Court Committee on Racial and Gender Bias in
the Justice System was established
Number of Committee Members: Eleven committee members
Number of Subcommittees: Two Major Subcommittees with both Committee Members and Non-Committee Members
Racial and Ethnic Bias Subcommittee
Gender Bias Subcommittee
Nine Subcommittee Work Groups with only Non-Committee members
Reported Occurrences and Perceptions of Racially Biased Behavior
The Court as Appointer
The Court as Employer
Litigants with Limited English Proficiency
Race and Ethnic Bias in Jury Selection
The Criminal Justice System: Sentencing
The Criminal Justice System: Death Penalty
The Criminal Justice System: Juvenile Justice
Family Law
Chair/Co-Chairs: Number and position of committee chairs: One Chair, Dean, Duquesne University School of Law.
Methods Used: To arrive at their findings and recommendations the Committee used public hearings; surveys distributed to court administrators, district attorneys, public defenders, community service agencies, and others; and conducted statistical studies on various topics including racial and ethnic diversity of juries across the Commonwealth, the adequacy of indigent criminal defense services provided by public defender offices and court appointed attorneys, and racial, ethnic, and gender disparities in sentencing. The Committee also used focus groups, personal interviews, roundtable discussions, existing statistical studies, and other state’s task force reports.
Topics and Recommendations
Perception
Attorneys, Judges, and Court Staff
Findings:
1. Statistical
and anecdotal evidence demonstrates that minorities are employed in
disproportionately low numbers in the
2. Minorities within the judicial system are excluded from full and equal participation in that system.
3. Many minorities expressed the view that there is an underlying but
widespread erroneous assumption throughout the
4. Minorities often perceive themselves as subject to a convoluted
standard that erroneously regards them as less than competent. Consequently,
they perceive that expectations concerning their performance are lower than
expectations for whites.
5. Disrespectful conduct directed towards minorities undermines the fairness of the justice system.
6. Testimony presented to the Committee demonstrates that many people in
minority communities are distrustful of the
7. Many minority defendants believe they have been treated differently
from white defendants, and that the outcomes of their cases have differed from
the outcomes of similar cases against white defendants.
8. Racial and ethnic bias in the courtroom is described by all
participants as rarely being overt. Rather, when it occurs, it is oblique; it
has a “cover.”
9. Racially- and ethnically-biased actions in
court compromise minority attorneys and minority court personnel in the
performance of their responsibilities.
10. Some members of the
judiciary were reported to be defensive when the issue of racial or ethnic bias
is brought to their attention. This attitude discourages minority courtroom
participants from seeking redress for race- or ethnic-based inequities.
11. Power and
responsibility to set the tone in the courtroom and effect change rest with the
judiciary.
12. Respondents from all
focus groups called for strong standards to clarify and rectify racial or
ethnic bias in the justice system.
13. Most participants
recommended some form of objective third-party monitoring of courtroom
procedures to corroborate the existence of racial or ethnic bias or even
mitigate its emergence in the courtroom.
14. Ongoing, meaningful training, supported by the Supreme Court of Pennsylvania, can serve to inform, educate, and promulgate norms across the Commonwealth’s system.
Recommendations
To the Supreme Court of
1. Ensure that an effective and impartial
grievance procedure, that takes into account the confidentiality needs of the
grievant, be available to any person participating in the court system of the
Commonwealth who believes that he or she has experienced unfair treatment
because of racial, ethnic, or gender biased speech or conduct on the part of a
judicial officer, officer of the court, or court employee.
2. Direct that judicial officers adopt and
maintain a policy of zero tolerance for racial, ethnic, and gender bias in
their courtrooms. In order to assist judicial officers in reaching this goal,
the following steps should be taken:
a. All judicial officers should receive periodic mandatory training on the issues surrounding racial, ethnic, and gender bias, including:
b. Civility within the courtroom;
c. Cultural diversity and its effect upon treatment in the court
system;
d. What constitutes, or can be perceived to constitute racial-, ethnic-,
and gender-biased language and conduct;
e. The effect of racial, ethnic, and gender biases upon determinations of credibility and competence; and
f. The racial, ethnic, and gender stereotypes and cultural
impediments that inhibit minorities, persons of varying ethnic backgrounds, and
women from having confidence in, and utilizing, the Commonwealth’s judicial
system.
g. A
handbook should be developed and distributed to every courtroom in the
Commonwealth setting forth conduct that is objectionable and suggesting
appropriate forms of speech. (A similar type of handbook developed by the
Supreme Court of Texas Gender Fairness Task Force may be replicated for use in
3. Require that all
4. Direct that all court employees receive training concerning the effects
of racial, ethnic, and gender bias within the legal system.
5. Examine and modify, where necessary, and in a manner consistent with
the provisions of the First Amendment, all relevant ethical and civility codes
to state clearly that racial, ethnic, and gender-biased speech and conduct are
violations of these codes.
6. Direct that the judiciary take all necessary steps to enlarge minority representation on juries
To Bar Associations
7. Establish and implement policies and procedures for encouraging
minorities and women to seek and obtain positions as judicial officers.
8. Cooperate with the Supreme Court in establishing and maintaining a confidential grievance procedure available to any person who believes he or she has been the recipient of racial, ethnic, or gender biased speech or conduct by an attorney.
9. Initiate and maintain a “mentoring” system for law school
graduates and those attorneys recently admitted to the bar, with special
attention directed toward minority and female attorneys ,
whereby those attorneys seeking mentors are paired with a more experienced
attorney.
To Law Schools:
10. Educate students about the effects of racial, ethnic, and gender
bias within the legal system as part of their obligation to provide legal
ethics education.
11. Provide opportunities for law school faculty to become better
informed about the effects of racial, ethnic, and gender bias in their teaching
and in the legal educational environment, and to consider ways of better
educating students about the effects of bias in the legal process.
12. Affirmatively recruit men and women of color, as faulty and
students, and offer mentoring networks for enrolled students.
To Law Enforcement Agencies:
13. Provide training to law enforcement officers and agents concerning
the effect of racial, ethnic, and gender bias within the law enforcement and
legal systems. The subject matter of this training should include topics such
as those set for above in Recommendation for the Pennsylvania Supreme Court,
Number 2. Additional relevant information should also be presented concerning
bias within the context of investigative detention, and arrest practices and
procedures employed by law enforcement agents with regard to racial and ethnic
minorities.
14. Establish and maintain an effective and
impartial grievance procedure available to any person who believes he or she
has been the recipient of racial, ethnic, or gender biased speech or conduct by
any law enforcement official or employee of a law enforcement agency.
Information concerning the grievance procedure should be clearly set for and
prominently displayed at all law enforcement offices and other appropriate
venues.
Access
Findings:
1. Lack of standardized means for provision of interpretation services.
2. Lack of standards for interpreter qualifications
3. Interpretation and bilingual staffing need to be enhanced at the initial contact with the system.
4. Judges and court staff should receive training in the need for, and effective and proper use of, interpreters who can provide the oral and written assistance that a non-native English speaker may need in order to negotiate the system successfully and fairly.
5. Rapid
growth of
6. There are substantial cultural differences between different immigrant, migrant, and refugee communities and the dominant culture. These differences can severely interfere with the effectiveness of purely literal interpretation or translation and with an individual’s comprehension of the legal, judicial, or administrative processes at work in his or her case.
7. Some courts are allowing cases involving LEP parties, including criminal defendants, to proceed without interpreters.
8. Some courts routinely allow untrained non-professional individuals, including relatives and friends, to act as interpreters.
9. Paid court interpreters are permitted to interpret without any demonstrated competency, especially when they are working under contract.
10. The ability of the court system to determine facts and dispense justice is compromised by inadequate language services.
11. The lack of standards in
Recommendations
To the Supreme Court of
1. Establish for all courts of the
2. Require that all courts provide qualified interpreters to litigants at no charge, in order that LEP parties and witnesses may fully and fairly participate in court proceedings and obtain reasonable access to the court system.
3. Require that the courts translate forms and other documents to the extent necessary to provide access to the court system to those unable to read English.
4. Require that all court interpreters obtain certification pursuant to a recognized statewide certification program maintain their proficiency through continuing education, and adhere to standards of professional conduct.
5. Require the adoption of a code of
professional responsibility for judicial interpreters together with mechanisms
to assure that all interpreters are familiar with the code and are subject to
the discipline for any violation.
6. Establish within the Administrative Office of the Pennsylvania Courts (AOPC) a Language Service Office, similar to those established by other states, staffed by professional administrative personnel experienced with issues related to court interpretation and translation and funded sufficiently to carry out its mission.
Juries
Findings
1. Small numbers of African Americans and Latinos on juries
2. Jury source lists may be prone to racial or ethnic bias.
3. Inadequacy of attempted remedies to increase jury diversity
4. Limited voir dire and the role of judges impede obtaining a fully representative jury.
5. Widespread
misuse of peremptory challenges. In the
selection of capital juries,
Recommendations
To the Supreme Court of
1. Direct the AOPC to design a standardized system for court administrators throughout PA to record the race and ethnicity of all individuals who are summoned for jury service, who appear in court in response to a summons, and who are selected for jury duty.
2. Direct county court administrators to use multiple sources in compiling jury lists, rather than relying strictly on voter registration lists in which young people and minorities are generally underrepresented and driver’s license lists which tend to exclude minorities, the poor, the young, and the elderly. Other possible source lists that have been used in other states include utility subscriber lists, welfare lists, tax collection lists, high school graduate lists, library address lists, and unemployment compensation lists.
3. Direct trial judges to exercise increased scrutiny to ensure that peremptory challenges are not used improperly based on race in the voir dire process
4. Expand voir dire to allow counsel the opportunity to question jurors more extensively than is now permitted in many countries, to better ensure fairness and impartiality in the jury selection process.
5. Direct trial judges to engage in individual, not group, questioning of potential jurors regarding racial bias.
6. Direct county court administrators to tighten standards for exemption from jury service and to enforce strictly the jury summons.
7. Require that all Batson and other similar challenges be made part of the official court record.
8. Require that a database be established regarding every Batson challenge and other similar challenges. The database should contain the name and race of each juror, the basis of the challenge, the names of the striking and challenging attorneys and trial judge, and all other information pertinent to the challenge. All courts should use comparable codes to create and maintain such a database.
9. Encourage court administrators to establish licensed childcare facilities in courthouses with funding through Title 42 Pa. Cons. Stat. Ann. § 3721 for individuals who have been summoned for jury duty.
10. Require training of court administrators to understand better how procedures by which prospective jurors are disqualified, exempted, and excused may adversely affect the composition of the jury pool, and to identify ways to address these inequities.
To the Legislature:
11. Require employers with a certain minimum number of employees to develop a paid leave policy for employees so that employees will receive their regular pay while serving on a jury. Employers should receive a state tax credit reflecting their payments to active jurors.
12. Establish a statewide Office of Jury Commissioner, similar to those in Massachusetts, Connecticut, and New York, whose function is to produce a master list of jurors for each county in a more cost-effective and efficient manner, and to increase minority representation on juries throughout the Commonwealth. It is intended that a centralized process of gathering the most representative jury source lists, eliminating duplication of names, and utilizing a professional service to regularly update juror addresses will increase the likelihood of producing a more representative pool of jurors for each county.
13. Conduct a study of juror compensation provided by employers and the courts for jury service. Following completion of the study, enact legislation to increase juror play if supported by the results of the study.
14. Conduct a study of transportation problems that impede citizens’ abilities to serve as jurors, and develop solutions supported by the study.
To Bar Associations:
15. Develop community outreach programs to emphasize the importance of jury service and encourage citizens to perform their jury duty, particularly in minority communities.
Civil and Family
Findings
1. Inequities in personal injury and wrongful death awards to women and minorities.
a. The use of gender bases and race based tables to compute work-life expectancy and wage losses.
b. The
lack of diversity in
c. Gender-based and race-based stereotypes affect jury deliberations and can serve to reduce awards to women, especially women of color.
d. The influence of racial bias on settlement negotiations in cases involving minorities must be openly acknowledged.
e. Testimony by women and minorities is often discounted by courts and juries.
2. Inequities in employment discrimination cases.
a. Effects of preclusion of punitive damages, trial by jury, and attorney’s fees under the PHRA (Pennsylvania Human Relations Act).
b. Effect of restrictions on attorney’s fees on low income claimants.
c. Complexities of employment discrimination law fuels a tendency to grant summary judgment in favor of the defendant, making it difficult for plaintiffs to obtain relief.
d. The Court’s decision in Ison v. Earie County Courts, 546 Pa. 4, 682 A.2d 1246 (1996), prohibiting the Pennsylvania Human Relations Commission from hearing a discharged court employee’s claim, has left that class of employee with few options for seeking redress for the unlawful employment actions of their employers.
e. Administrative requirements under PHRA are discriminatory.
Recommendations
To the Supreme Court of
1. Adopt rules and jury instructions to eliminate the use of gender based and race based life expectancy or work-life tables in determining future earning capacity.
2. Direct judges to instruct jurors, at the beginning of each case, to refrain from allowing personal racial, ethnic or gender bias to influence their deliberations.
3. Establish a policy that prohibits judges or counsel from using potential racial, ethnic, or gender bias of jurors as a means of influencing settlement negotiations.
4. Direct that a standard jury instructions be drafted and implemented in all types of cases, which prohibits jurors from considering race, gender or ethnic identity when evaluating the credibility of witnesses, experts or litigation parties.
5. Increase diversity on juries throughout the Commonwealth.
6. Direct that model jury instructions be drafted to address specifically the undervaluation of homemaker services.
7. Commission
an empirical study of decided case in
8. Include programs on the need for fair and equal treatment of litigants in employment discrimination cases at training sessions for judges and court personnel.
To the Legislature:
9. Amend the Pennsylvania Human Relations Act to include a right to a jury trial for all discrimination plaintiffs, as is provided to virtually all other plaintiffs in the civil litigation system.
10. Amend the Pennsylvania Human Relations Act to include a right to reasonable attorney’s fees to plaintiffs who are prevailing parties.
11. Appropriate funding for the Pennsylvania Human Relations Commission at a level to permit substantive investigation of all claims.
Findings
1. Low income litigants, who include a disproportionate number of women and minorities, are often disadvantaged in the family court system because they are not represented by counsel. Specifically, they often do not receive sufficient and comprehensible information concerning the availability of reduced fee and pro bono representation, nor do they receive complete information about their procedural and substantive rights and responsibilities. If the litigants have limited proficiency with the English language, the obstacles become even more daunting.
2. The
application of some of
3. Support cases are generally not resolved for several months, and sometimes not for years. During that time, the parties may have to attend numerous hearings. This presents significant difficulties for low income litigants who may incur childcare and transportation coasts and lost wages for missed work, in addition to having to pay attorney’s fees. The award of a support order, even with a provision for arrears, generally does not make the dependent spouse whole.
4. Low income litigants encounter financial obstacles that inhibit their access to the family courts. Filing fees, attorney’s fees, and fees for masters or other special personnel or programs are direct costs that low income litigants often cannot bear. The addition of indirect costs, such as childcare, transportation, and lost wages for missed work, along with delays in receiving support, alimony, and equitable distribution of assets, can result in further impoverishment of the dependent spouse.
5. Low income litigants encounter procedural obstacles that impede their ability to litigate their family law cases. The multiple and fragmented nature of hearings in family court and dependency court places a considerable burden on hourly workers whose employment is imperiled by frequent absences.
6. In family and dependency proceedings, cultural and gender stereotypes and biases sometimes affect female and minority litigants. For example, some report being treated as “less than equal” to more affluent litigants; being held to stricter behavioral standards than men; and being subjected in inequitable decisions because of racial and cultural biases.
7. Several problems primarily affect minority litigants in child dependency proceedings:
a. African American children may be at risk of
physical harm because some caseworkers believe corporal punishment is
acceptable in the African American community. In such cases, African American
children may not be removed from their homes while white children under similar
circumstances would be removed from their parents for their protection.
b. Inconsistencies in the application of the law, coupled with cultural biases and inadequate representation and facilities, can have a disproportionately negative impact upon minority and female litigants. For example, policies that promote the adoption of relatives have a substantial negative impact upon minority litigants, who often to not believe it to be an appropriate remedy for the issues surrounding dependent children. On the other hand, minority litigants are discouraged from seeking to become foster and adoptive parents by regulations which foster the perception that criminal records, no matter how remote or insignificant, bar them from parenthood.
c. Parents are not always advised of their right to be represented by counsel. The guardians ad litem appointed for the children often do not adequately represent the children or their interests. Many guardians do not meet their clients until moments before the hearing and do not devote sufficient time or resources to prepare their cases. They are also under-compensated for their work.
8. Many members of the legal and lay communities expressed the opinion that the family and dependency court systems are accorded little respect. This impression is borne out by, among other things, the substandard condition of facilities and the fragmentation of hearings.
9. The courts rarely grand advance distributions of marital assets. Because most non-consensual divorce cases take more than two years for assets to be distributed, the court’s reluctance to enter interim awards places a burden on the economically dependent spouse and may inhibit his or her full access to the legal system. The spouse controlling the marital estate may also dissipate the assets, leaving no recourse for the dependent spouse.
10. Family courts infrequently award attorney’s fees, and when fees are granted, they are often inadequate. As a result, low income litigants are often unable to hire and retain counsel. In dependency court, the low rate of pay makes it difficult to attract court-appointed attorneys to provide effective counsel.
Recommendations
To the Supreme Court of
1. Establish a statewide uniform family law system, with procedural rules governing the management, processing, and procedures for family law cases from inception through conclusion.
2. Establish uniform requirements for courts regarding family and dependency cases, including a system for the dissemination of public information in oral, written, and telephonic form about the availability of interpreters, court procedures for all areas of family law, substantive and procedural laws and rights, the availability of in forma pauperis status, the availability of pro bono counsel, and other appropriate legal and social services.
3. Order the reallocation of existing judicial resources to increase the proportion of judges assigned to hear family law cases.
4. Require opinions from the trial judge, master, or hearing officer that explain the basis for decisions concerning custody, alimony, child support, and equitable distribution.
5. Direct court administrators to establish a scheduling system that provides judges with sufficient time necessary to hear family cases. To the extent possible, cases should be completed in one scheduled hearing and decisions should be rendered in a timely fashion, in order to avoid repeated court appearances by the parties.
6. Establish a more effective and less expensive system for litigants to enforce support, custody, and alimony orders.
7. Require court-appointed attorneys and court personnel appearing in dependency court to attend training sessions.
8. Establish guidelines for maximum caseloads for guardians ad litem and court-appointed attorneys in dependency cases, and for adequate compensation to permit guardians ad litem and court-appointed attorneys to perform their jobs in a competent manner.
9. Establish clear procedures for processing bias complaints against family law masters.
To the Legislature:
10. Allocate sufficient funds to study and develop a Family Court Reform Model System effectuating the proposed statewide family law system.
11. Allocate sufficient funds so that courts can physically accommodate all family and dependency litigants.
12. Allocate sufficient funds for legal aid and other pro bono organizations to adequately address the needs of low income family law litigants.
13. Modify the alimony section of the Divorce Code to further define the appropriate circumstances under which alimony should be awarded, and to provide meaningful and uniform guidelines regarding the amount and duration for the alimony award.
14. Allocate additional court funds to hire personnel necessary to process family and dependency cases.
To Bar Associations:
15. Work with the Supreme Court and citizen groups to establish educational programs for the general public on substantive and procedural rights and responsibilities in family and dependency law.
To Court Administrators and Managers:
16. Study and recommend to the Court appropriate changes in local family law an juvenile court facility to establish a family and juvenile court infrastructure of sufficient size for effective, safe, and efficient accommodation of all family law litigants, witnesses, and related personnel.
17. Study methods of enhancing the dependency system in each county and submit proposals for federal funs to implement these improvements, as permitted pursuant to the Federal Strengthening Abuse and Neglect Court Act of 2000, Public Law 106-314.
18. Study and recommend to the Court standards for all family and dependency court cases that address the following procedural issues:
a. The timely advance notice to all parties concerning scheduling changes.
b. The accurate and complete transcription of all proceedings.
c. The presence of a judge, hearing officer, or master for every hearing.
d. The allocation of sufficient time for full presentation of evidence and examination of witnesses at every hearing.
e. The allocation of sufficient time for the hearing of all cases scheduled on any given day.
19. Establish a system to disseminate information between the family and juvenile sections of each court in a timely and appropriate manner, in order to facilitate consolidation of dependency, custody and/or support issues, as may be appropriate.
To the Department of Public Welfare,
and Children Youth and Family Services Programs:
20. Establish and improve ongoing training for all appropriate social services personnel, similar to that required for court appointed attorneys and court personnel who are involved in dependency proceedings.
21. Develop methods of enhancing the delivery of services in each county and submit proposals for funding of those improvements, pursuant to the Federal Sentencing Abuse and Neglect Courts Act of 2000, Public Law 106-314.
Criminal Justice
Findings
1. There
are strong indications that
2. One
third of African Americans on death row in
3. Race was also shown to be a major factor in capital jury selection, with the prosecution striking African Americans from the jury twice as often as non-African Americans, and with the defense doing just the opposite.
4. The delivery of public defender services are inadequate throughout the Commonwealth. With the
exception of
Recommendations
To The Supreme Court Of
1. Pursuant to its inherent power to issue
temporary stays of execution,
declare a moratorium on the imposition of the death penalty in
any case where the defendant’s direct appeal has resulted in affirmation by the
Supreme Court of Pennsylvania, pending the completion of a study investigating
the impact of the race of the defendant and of the victim in prosecutorial
decisions to seek the death penalty and in death sentencing outcomes. The
moratorium should continue until policies and procedures intended to ensure
that the death penalty is administered fairly and impartially are implemented.
2. Empanel a special commission to study the impact
of the race of the defendant and of the victim in prosecutorial decisions to
seek the death penalty and in death sentencing outcomes.
3. Direct the AOPC, or alternatively appoint a
master, to undertake a comprehensive data collection effort covering all stages
of capital litigation, including responsibility for completing the data
collection instruments and maintaining the database and all supporting
documentation. The Court should direct the AOPC, or master, to retain a
principal investigator to review data collection efforts undertaken in other
states and develop a research design and a plan to implement data collection.
The cases to be reviewed should include those in which the death penalty was
sought or could have been sought in all cases where the defendant was held for
court on first-degree murder or murder generally.
4. Amend Rule 801 (former Rule 352) to require
that a copy of the prosecutor’s notice of intention to seek death be filed with
the AOPC as well as the trial court to facilitate tracking of death-noticed
cases.
5. Amend Rule 632 (former Rule 1107) to require
retention of the jury questionnaire utilized at trial, which indicates the race
and gender of the jurors, for the duration of the defendant’s incarceration.
6. Mandate statewide standards for an independent appointment process of selecting capital counsel for all stages of the prosecution, including trial, appeal, and post-conviction hearings. The standards, at a minimum, should incorporate those recommended by the American Bar Association in its Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases.
7. Require that all capital counsel successfully
complete, at a minimum, an annual continuing legal educational component
specifically focusing on capital representation.
8. Promulgate reasonable minimum compensation
standards for capital counsel throughout
9. Require trial courts during voir dire in
capital cases to explore fully, when requested by either party, views
about race held by prospective jurors.
10. Promulgate a rule that allows for reasonable
latitude by defense counsel and the Commonwealth to explore all potential
sources of racial bias in voir dire of prospective capital jurors.
11. Require trial courts to charge capital juries,
when requested by either party, that they may not consider the race of the
defendant or victim in determining the appropriate sentence for the defendant.
12. Promulgate a rule that should a prima facie
case of discrimination in the use of peremptory challenges be established,
reasons invoked for the exclusion of the juror that do not substantially relate
to his or her qualifications, fitness, or bias shall be viewed as presumptively
pretextual.
13. Reduce the number of peremptory strikes in
capital cases.
14. Promulgate a jury instruction stating “life means life with no possibility of parole” and require that it be given in all capital cases.
To The Legislature
15. Enact a Racial Justice Act, like that of other
states, that allows for the admission of evidence of a pattern and practice of
disparate treatment in both the prosecutorial decision to seek the death
penalty and in sentencing outcomes.
16. Enact a proportionality provision requiring
the Supreme Court to review death sentences for proportionality.
17. Create and adequately fund a statewide
independent
18. Appropriate adequate funds to the Supreme
Court for the administration of a comprehensive data collection effort covering
all stages of capital litigation.
19. Enact legislation declaring a moratorium on
the death penalty until such time as policies and procedures are implemented to
ensure that the death penalty is being administered fairly and impartially
throughout the Commonwealth.
To The Attorney General And District Attorneys
20. District attorney’s offices adopt written
standards and procedures for making decisions about whether to seek the death
penalty.
21. The
Attorney General empanel a statewide committee of county district attorneys to
review each decision by a district attorney to seek the death penalty with the
goal of ensuring geographic consistency in the application of the death
penalty. The committee’s review should commence as soon as possible after each
filing of a notice of intention to seek the death penalty, and the result of
its review should not be binding. The review committee should include, at a
minimum, the Attorney General, the district attorneys of
To The Governor Of
The
Committee recommends that the Governor of Pennsylvania:
22. Pursuant to his constitutional authority to
grant temporary reprieves,
declare a moratorium on the imposition of the death penalty in
any case where the defendant’s direct appeal has resulted in affirmation by the
Supreme Court of Pennsylvania, pending the completion of a study investigating
the impact of the race of the defendant, and of the victim, in prosecutorial decisions to seek the death
penalty and in death sentencing outcomes. The moratorium should continue until
policies and procedures intended to ensure that the death penalty is
administered fairly and impartially are implemented.
23. Empanel
a special commission to study the impact of the race of the defendant and the
victim in prosecutorial decisions to seek the death penalty and in death
sentencing outcomes.
Findings
1. Courts rely primarily on the legally prescribed factors, i.e. the type and seriousness of offense and the defendant’s prior criminal record, in determining sentences for the defendants. (These may, however, reflect persistent structural inequalities.)
2. In sentencing, the mode of conviction matters. Defendants who were convicted following a trial—especially a jury trial—were substantially more likely to be incarcerated and received substantially longer prison terms than those who entered guilty pleas.
3. Nevertheless, after controlling for legally prescribed factors and mode of conviction, the study found that the defendant status characteristics of race, ethnicity, gender, and age definitely affect sentencing outcomes of all kinds.
a. Gender is the most consistently influential
variable among defendant status characteristics, especially when analyzed in
interaction with race, ethnicity and age. Women are both less likely to be
incarcerated than men and to receive shorter sentences than men, with young
African Americans and young white females receiving the most lenient sentencing
outcomes. The gender disparities that appeared are not necessarily unwarranted,
however, as gender might correlate with other factors that may be viewed as
legitimate considerations in sentencing, such as family responsibilities and
role in the offense. (Information about such considerations was not available.)
b. Race alone has a minor effect on sentencing disparity but in a combination with gender and age shows much more complex effects. Specifically, the role of race in sentencing outcomes depends upon gender and, to a lesser extent, age. Overall African Americans are slightly more likely to be incarcerated than whites and received slightly longer sentences. African Americans had a 1.2 percent greater probability of incarceration and received sentences that were on average, 1.3 months longer than whites. When the researcher studied the interactive effects of race, ethnicity, gender, and age, however, they found that the effect on sentencing differed “dramatically” by gender and age. Specifically, young African American males, ages 18-29, had a 4.8 percent greater probability of incarceration and received sentences that were, on average, 4.3 months longer than whites. Older African American males, ages 30 and over, had a 4.1 percent greater probability of incarceration and received sentences that were, on average, 3 months longer that whites. In contrast, young African American females were sentenced more leniently that all make groups, with incarceration odds less than half of those of the reference group of young white males. The terms of incarnation for young African American females, on average, were 15 months shorter than those of the reference group.
c. Ethnicity—specifically,
Latino ethnicity—also makes a difference in sentencing,
although, again, the effects differ as ethnicity interacts with gender and age.
Overall, Latino defendants were more likely to be incarcerated and received
slightly longer sentences than non-Latino defendants. Latinos had a 5.9 percent
greater probability of incarceration and received sentences that were, on average,
5.3 months longer than whites. However, when ethnicity is differentiated by age
and gender, the differences are more pronounced. Young Latino males, ages
18-29, had a 7.6 percent greater probability of incarceration and received
sentences that were, on average, 6.7 months longer than whites. Older Latino
males, age 30 and over, had a 9.7 percent greater probability of incarceration
and received sentences that were, on average, 8.3 months longer than whites.
Just as with African American females,
4. The patterns of disparity in sentencing have changed over time. The overall trend is toward less disparity, although the experience of African American males is an exception. Specifically:
a. The trend is toward decreasing disparity for
Latino defendants, although older Latino males continue to be the most severely
punished category of defendants and young Latino males continue to be the second most severely punished. Sentencing patterns
for
b. The trends are markedly different for African American men and African American women. African American men have experienced a moderate increase in sentencing disadvantage, while African American women have gained a relative sentencing advantage compared to other groups. Although African American defendants are less disadvantaged than Latino defendants in sentencing decisions, the disparities between African American and white defendants have grown. African American men receive somewhat more severe outcomes than white men, while young African American women are the most leniently sentenced category of defendants.
Recommendations
To the Supreme Court of
1. Include programs on the impact of race, ethnicity, and gender bias in sentencing at judicial training sessions.
2. Include in such judicial training sessions, education on how the use of specific offender characteristics, such as employment, family responsibilities, and role in the offense, can potentially contribute to warranted racial, ethnic, and gender disparities in sentencing.
3. Strengthen the formal standards of accountability to which sentencing judges are held through adoption of a broader standard of appellate review for sentencing decisions.
4. Strengthen and expand the collection of data on sentencing decisions.
To District Attorneys:
5. Institute training programs for prosecuting attorneys on the influence of race, ethnicity, and gender bias on charging and plea bargaining decisions.
Court as
employer/appointer
Findings
1. There was a perception that female court personnel are clustered in
certain lower-level job categories and are often absent from supervisory
categories that remain mostly male. (This perception is affirmed by the county
data discussed earlier in this chapter.) Moreover, participants also reported
large salary gaps between male and female court employees.
2. In some counties, court personnel reported that certain jobs are
considered “men’s jobs.”
a. In
b. In
c. Some judges also noted that certain courtrooms almost seem
racially segregated and that certain job categories seem to break down by race
and gender.
3. Generally, female employees did not perceive that there was a
viable, realistic
way for them to complain about bias. If they complained to their supervisors,
they worried about being perceived as troublemakers; this was particularly problematic if
the immediate supervisor was a judge.
4. African American court personnel across the Commonwealth reported
a pervasive condition of disrespect and unequal treatment in the workplace.
They were concerned that if they complained about such treatment, they could
lose their jobs. Consequently, they reported adopting a “grin and bear it”
attitude.
5. African American litigants also noted the paucity of African
American employees in the courtroom. Some litigants commented that as a result, the courtroom felt
“unfriendly” and “uncomfortable.”
6. Participants noted that African American personnel principally
work in the courtrooms of minority judges. One effect of the pattern is that
minority employees find advancement unlikely, unless they have a patron with
“clout.”
7. African American attorneys and court personnel said they were very
concerned about the latitude and tolerance that courts afforded to people who
used race-based negative innuendo to their advantage.
8. Minority employees
felt that employment of more minorities would help moderate disparate
treatment. The feeling was that the dynamics of the
courtroom are complex, and a minority presence in the courtroom would help
reduce racially-biased behavior.
9. The racial and
gender composition of court personnel in various courtrooms was seen by
participants in the focus groups as a reflection of bias in hiring and job
assignments.
10. Almost all participants—judges, employees, and attorneys—agreed
that racial, ethnic, and/or gender bias could be subtle, and was often a matter
of perception and interpretation.
Participants said instances of
overt bias due to race, ethnicity, or gender were more common in areas of the
Commonwealth where minority and female lawyers and judges rarely, if ever, have
been seen in courtrooms.
11. Judges had different views about the roles they had played—or could
play—in changing the racial, ethnic, and gender profile of court employees. The degree to which a judge controls hiring and promotion is a
matter of local custom. Different geographical areas have their own
hiring procedures that may or may not leave room for political appointments.
12. A number of judges reported hearing court employees
use patronizing language about system participants who are different from them.
13. Attorneys and court personnel alike felt largely powerless to
challenge biased behavior. African American court personnel expressed
little hope for system-wide remedies that would overcome society’s racism.
Participants said they looked toward the judge as the one authoritative voice
that could rectify disparate treatment. Participants believed that a meaningful
response to unequal treatment must start with the Supreme Court of Pennsylvania
setting the tone and descend through the administrative hierarchy of the
justice system.
14. There was universal agreement that judges set the tone for how
things run in the courtroom and in their chambers, and that
they have the power and responsibility to rectify racial, ethnic, and gender
bias in the courtroom and the courthouse.
Focus group participants and interviewees had
numerous suggestions for improving the system, including the following:
1. From judges:
a. Prevent bias
through training and education of lawyers and judges, starting in law school. A
number of judges in
b. Create methods to identify and deal with instances of attorney and
judicial bias when they occur.
c. Urge the Supreme Court to “find the line between common sense and political
correctness”—particularly with regard to training and the need to get
participants to take it seriously.
2. From employees:
a. Participants were frustrated both by the “blind eye” they said was
often turned towards racial and ethnic problems in the courtroom, and by
perfunctory remedial efforts, including sensitivity training, which they said were sporadic and
ineffective. As an alternative, participants suggested independent courtroom
observers who could verify complaints while allowing the complainants to remain
anonymous. The consultants noted that this
recommendation was another way of saying that the Supreme Court should set a
tone and dictate compliance.
b. Participants called for creation of an independent panel outside
the employees’ chain of command, to which employees could report instances of
bias.
c. Participants favored creation of a
disciplinary board that would hold judges accountable, but to which they could
report anonymously.
Findings
1. There are no statewide standardized policies and procedures in
place that are used by county court systems to select individuals for court
appointments. Systems for selecting attorneys for court appointments vary
widely. Some counties use centralized alphabetical lists from which court
administrators select attorneys on a rotating basis. In other counties,
potential appointees serve at the discretion of individual judges before whom
they may have to appear, and whose approval is needed for payment of fees.
2. President judges in each county make the
majority of appointments, with the exception of criminal court appointments.
3. The majority of counties do not create or
maintain lists of attorney candidates for court appointments from which
selections are made.
4. Most courts do not use a formal recruitment system to fill
appointed positions such as conflict counsel, court-appointed criminal counsel,
masters, and mediators.
5. Most counties make no effort to recruit women or minorities for
the positions examined by the Committee.
6. The limited presence of minorities in the state judiciary, and
court administrative positions in particular, leads to the perception that
there are few court appointment opportunities for minorities. That perception
is affirmed by the fact that there are few minority appointments in at least
one large county in
7. The underrepresentation of female attorneys and minority attorneys
in court appointments reduces their opportunities to gain the experiences
necessary to further their careers.
8. Minority attorneys perceive that they are
excluded from receiving court appointments because they are not members of the
“old boys’ network” of white male attorneys and judges.
Recommendat