Race and Ethnic Fairness
State:
Committee/Report Name: The Tennessee
Supreme Court established the Commission on Racial and Ethnic Fairness by an
order dated
Number of Members: 24 Commission Members
Number of Subcommittees: 3 Subcommittees
a. Education and Training
b. Courtroom Environment
c. Court Policy and Procedure
Chair/Co-Chairs: Renard A. Hirsch,
Sr., Attorney at Law.
Methods Used:
a. Public
Hearings were held in
b. The Commission solicited written and verbal comments from the public.
c. The Commission solicited information from law schools, bar associations, the Administrative Office of the Courts and other agencies for consideration by the members.
d. The Commission used questioners to conduct a rigorous, statistical, state-wide study of racial and ethnic fairness as observed or experienced by attorneys, child support referees, court personnel, district attorneys, judges, jurors, and public defenders.
Topics and Recommendations
Perceptions
Findings
1. The absence of minority prosecutors has a negative impact on public
perception of the legal system.
2. Written comments from the survey expressed the belief that the court system is fair, but it becomes biased when individuals employed in the system inject their personal prejudices as they carry out their work.
3. The Commission's study and other national studies of the subject show that the general public does not understand the judicial system and mistrusts the institution and its results. When minority participants see an outcome they disagree with and do not understand, their natural tendency is to suspect that bias is involved.
4. Those who know the system the best--lawyers, clerks, judges and other
officers of the court-- reported fewer problems and concerns than the public
apparently perceives.
Recommendations
1. The
judicial system in
Attorneys, Judges, and Court Staff
Findings
1. 13% of attorneys observed a racial or ethnic difference in attorneys’
consideration of plaintiffs’ claims, all indicating that more serious
consideration is given to claims of majority plaintiffs. Similarly, both court
personnel and judges were unanimous in observing no difference in attorneys
giving more serious consideration to claims based on plaintiffs’ race or
ethnicity.
2. 10% of attorneys observed judges giving more serious consideration to claims of majority plaintiffs. Both court personnel and judges were unanimous in observing no race or ethnic difference in judges giving more serious consideration to plaintiffs’ claims.
3. Race and ethnicity seem to affect how strong prosecutors perceive their cases.
4. Attorneys “seldom” and court personnel and judges “almost never” observe that judges find the testimony of majority lay or expert witnesses or litigants more credible than minority lay or expert witnesses or litigants.
Access
Findings
1. Counties that have for years been homogeneous now have participants who speak not only Spanish, but Vietnamese, Creole and other languages. Courts should not automatically assume that friends or family members will be appropriate interpreters.
Recommendations
1. The
Findings
1. With regard to other issues such as legal representation, orders of protection, and obtaining bond or bail in criminal matters, it appears that wealth and education may have more effect on whether an individual is given fair access to the court system.
Recommendations
1. The Legislature and the Tennessee Supreme Court should expand efforts to make legal representation available to low and moderate income people.
Recommendations
1. Local court systems should designate an ombudsman to assist public participants in the judicial system.
Juries
Findings
1. Many respondents observed that race or ethnicity was a basis for
plaintiffs’ attorneys using peremptory challenges to disqualify jurors.
2. Responses suggest that minorities are “often” adequately represented in
jury pools and on petit and grand jury panels.
3. At least one judicial district in
Recommendations
1. Courts should ensure that jury source lists represent the racial and
ethnic make-up of the areas they serve. If standard list sources, such as
driver licenses, property tax and voting lists, do not adequately represent minority
demographics, courts should consider lists from other sources, such as school
enrollment, public housing residents and utility customers.
2. Courts should review jury service and its policies and adjust those policies that may be barriers to minority participation, such as the length of service, jurors’ ability to serve on call at home, the level of reimbursement, and assistance with child care.
Findings
1. Attorneys observed that juries award lower compensatory damages to minority
plaintiffs. Similar observations were noted by 5% of judges, but all court
personnel who responded to this item observed no difference between majority
and minority plaintiffs in the amount of compensatory damages juries award.
2. 22% of attorneys, 7% of court personnel and no judges observed that race or ethnicity played a role in the amount of punitive damages juries award to plaintiffs.
3. The injured party’s race or ethnicity was observed by 6%, 18%, 28% of attorneys, court personnel and judges, respectively, to affect plaintiffs’ attorneys’ strength of an injured party’s case.
4. The Commission's study shows that race or
ethnicity is a factor when it comes to awarding compensatory damages to
plaintiffs.
Recommendations
1. The
Courtroom Experience
Findings
1. Attorneys, court personnel and judges “seldom” to “almost never”
observe or experience practitioners using derogatory language, making demeaning
remarks or jokes, or acting disrespectful toward other practitioners or
litigants. (See also Courtroom Environment: Court Staff, Finding #1; Courtroom
Environment: Lawyers/Jurors/Others, Finding#1)
2. Judges especially should be aware of the need to dispel the perception of unfairness and bias in the court environment.
Recommendations
1. Judges should issue clear and concise directives to eliminate
discriminatory practices within the court environment.
2. State and local bar associations, in conjunction with judges and clerks, should develop court monitoring programs to ensure court environments free from racial or ethnic bias. (See also Courtroom Environment: Court Staff, Recommendation #1)
Findings
1. Attorneys, court personnel and judges “seldom” to “almost never” observe or experience practitioners using derogatory language, making demeaning remarks or jokes, or acting disrespectful toward other practitioners or litigants. (See also Courtroom Environment: Judges, Finding #1; Courtroom Environment: Lawyers/Jurors/Others, Finding#1)
Recommendations
1. State and local bar associations, in conjunction with judges and clerks, should develop court monitoring programs to ensure court environments free from racial or ethnic bias. (See also Courtroom Environment: Judges, Recommendation #2)
2. The
3. All persons should be required to address each individual having business with the court in a polite and civil manner. Clerks should be responsible for ensuring that their staff show no disparate treatment to any individuals.
Findings
1. Attorneys, court personnel and judges “seldom” to “almost never” observe or experience
practitioners using derogatory language, making demeaning remarks or jokes, or
acting disrespectful toward other practitioners or litigants. (See also
Courtroom Environment: Judges, Finding #1; Courtroom Environment: Court Staff,
Finding#1)
2. Jurors, regardless of race or ethnicity, did not give the judicial system high scores on these issues as the practitioners did, but they nevertheless reported seldom observing attorneys, court personnel or judges using derogatory language, demeaning remarks or jokes, or being disrespectful toward other practitioners or litigants.
Recommendations
1. All participants in the court environment
should be addressed by appropriate formal titles.
Quality of legal representation
Findings
1. The race or ethnicity of litigants influences the likelihood that they will be represented by counsel. Majority litigants are more likely to be represented by counsel and minority litigants are less likely to be represented by counsel.
Recommendations
1. Courts should ensure that in civil or
criminal fee generating cases, attorneys are appointed on a nondiscriminatory
basis.
2. Courts, district attorneys and public defenders should assure that all defendants receive the same quality of treatment and representation.
Legal Profession
Recruitment/Acceptance
to
Findings
1. All
2. Three law schools feature student groups and activities that assist
minority students in law school. One school has an Asian-American law student
group and another school has a Jewish law student group.
3. Three schools also provide support programs which, although not
specifically limited to minority students, are available to support the
academic success and progress of all law students, including members of
minority groups.
4. Three law schools reported that they offer administrative staff support within the law school for minority law students.
5. The law schools report various activities that may promote a culture of greater acceptance for minority law students at the respective institutions.
6. Three law schools reported that they had increasing numbers of minority students who apply for admission to their school.
Recommendations
1. Law schools should continue their affirmative efforts to recruit, admit and graduate more minority law students.
2. Law schools, together with the bar associations and state education officials, should increase their efforts to disseminate information about careers in the law to encourage minority high school and college students to consider careers in the legal profession.
3. Law schools should offer greater financial assistance to minority applicants and law students.
4. The
5. Law schools should increase the diversity of their teaching faculty-- both full-time and part-time--by continuing their efforts to attract and retain high quality minority professors.
6. Law schools should continue or initiate mentor
programs to support the academic success and professional development of
minority law students.
Findings
1. A substantial percentage of respondents observed or experienced racial
or ethnic related problems in legal careers in
2. Fewer meaningful mentor relationships are available for minority attorneys.
3. Few desirable assignments to legal projects or clients are given to minority attorneys or peers as reported.
4. Fewer fee-generating court appointments are given to attorneys who are of a minority group. (See also Court as an Employer/Appointer: Appointer, Finding #1)
Recommendations
1. Law firms, corporations, government agencies and other law-related offices should develop in-house mentor programs to support the professional development of minority lawyers.
2. Law offices should implement programs to assure equality in the nature,
scope and importance of tasks assigned to all attorneys regardless of race or
ethnicity.
3. Law schools should continue efforts to increase employment opportunities for minority students and graduates, ensuring that minorities have access to the same employment opportunities as other law students and graduates.
4. Law schools should develop activities to
improve the knowledge and responsiveness of students, lawyers and judges to
issues of race and ethnicity in the workplace. (See also Education: Judges,
Recommendation #4)
Education
Recommendations
1. Local bar associations, in conjunction with legal and judicial
organizations, should develop handbooks to provide judges, attorneys and court
personnel with information that will improve their interaction and
communication with persons of diverse racial and ethnic backgrounds in
courtroom and judicial settings.
2. Judges should exercise authority and receive funding to require
sensitivity training for all court personnel. (See also Education: Court Staff,
Recommendation #1; Education: Lawyers, Recommendation #2)
3. Judicial Conferences, the Court Clerks Conference, the bar
associations and other associations that offer continuing legal education
programs should encourage the selection of educational faculty from diverse
racial and ethnic backgrounds. (See also Education: Court Staff, Recommendation
#2; Education: Lawyers, Recommendation #4)
4. Law schools should develop activities to improve the knowledge and responsiveness of students, lawyers and judges to issues of race and ethnicity in the workplace. (See also Legal Profession: Hiring and Promotion, Recommendation #4)
Recommendations
1. Local bar associations, in conjunction with legal and judicial
organizations, should develop handbooks to provide judges, attorneys and court
personnel with information that will improve their interaction and communication
with persons of diverse racial and ethnic backgrounds in courtroom and judicial
settings. (See also Education: Judges, Recommendation #1; Education: Lawyers,
Recommendation #2)
2. Judicial Conferences, the Court Clerks
Conference, the bar associations and other associations that offer continuing
legal education programs should encourage the selection of educational faculty
from diverse racial and ethnic backgrounds. (See also Education: Judges,
Recommendation #2; Education: Lawyers, Recommendation #4)
Recommendations
1. Law schools should develop activities to improve the knowledge and
responsiveness of students, lawyers and judges to issues of race and ethnicity
in the workplace.
2. Local bar associations, in conjunction with legal and judicial
organizations, should develop handbooks to provide judges, attorneys and court
personnel with information that will improve their interaction and
communication with persons of diverse racial and ethnic backgrounds in
courtroom and judicial settings. (See also Education: Judges, Recommendation
#1; Education: Court Staff, Recommendation #1)
3. The Tennessee Supreme Court should require that continuing legal education include, within its ethics and professionalism requirements, racial and ethnic diversity training.
4. Judicial Conferences, the Court Clerks
Conference, the bar associations and other associations that offer continuing
legal education programs should encourage the selection of educational faculty
from diverse racial and ethnic backgrounds. (See also Education: Judges,
Recommendation #2; Education: Court Staff, Recommendation #2)
Recommendations
1. Judges should educate public audiences about the legal system and the adversarial process to help avoid confusion and misunderstandings about the judicial process that may be misinterpreted as bias.
2. Law schools should act as community resources
with outreach to communities across the state to help eradicate existing forms
of discrimination and bias and to improve opportunities for all persons to
achieve personal and professional goals, regardless of race or ethnicity.
3.
A project should be organized to educate
the public about the judicial process, specifically giving attention to jury
trials.
4. To encourage sensitivity, courts should take advantage of opportunities to raise issues of racial and ethnic fairness with the bar, with participants in litigation, and with the general public.
Civil and Family
Recommendations
1. The Administrative Office of the Courts should compile and distribute data on civil cases to evaluate the influence and impact of race and ethnicity issues on outcomes, settlements and damage awards.
Findings
1. Attorneys observe that judges often apply the same standards in deciding child support amounts and the terms of child support and enforce child support orders equally for minorities and majorities.
Criminal Justice
Findings
1. Many more people encounter law enforcement personnel than courts. No matter how careful courts are in avoiding discrimination, if police departments show bias or discrimination, the public will perceive that our system of justice is unfair.
Recommendations
1. The Legislature should require state and local law enforcement
officials to invest time and resources in diversity training for officers and
support staff.
2. Court officials, district attorneys general and public defenders must make it clear that they will not tolerate bias or discrimination by law enforcement officials against defendants, victims, witnesses or any other persons.
Findings
1. There is a greater tendency among prosecutors to file charges against minority
defendants.
2. Prosecutors are more likely to file charges when victims are of the
majority race.
3. Minority defendants are more likely to remain in custody prior to trial.
4. Prosecutors are more likely to make favorable plea offers when defendants
are of the majority race as reported by 16% of attorneys, 5% of court personnel
and 13% of judges.
5. Pretrial procedures, particularly regarding law enforcement practices, bail and decisions whether to prosecute, have significant impact on the public's perception of our system of justice, even if some aspects of pretrial procedure are not technically the responsibility of the courts.
6.
Recommendations
1. The
2. The Administrative Office of the Courts should collect and distribute
data on the impact of current bail bonding policies on racial and ethnic
minorities.
3. The Commission urges judicial leaders, including judges, clerks, district attorneys, public defenders and others, to use what influence they have to address bias at any stage in the process, including behavior by law enforcement officials, bail bonding personnel, and retained or appointed counsel.
Findings
1. Race
and ethnicity of defendants seems to affect their sentences.
2. The victim’s race or ethnicity plays a smaller role in prosecutors’ decisions to recommend intermediate sanctions in lieu of prison than does the race or ethnicity of defendants.
3. The responses suggest that judges are more likely to impose severe
sanctions for the actual or threatened use of violence by minority defendants.
4. Attorneys (7%), court personnel (5%) and judges (12%) reported that judges are more likely to make mitigating departures from sentencing guidelines when victims are of a racial minority. Judges are more likely to make aggravating departures from sentencing guidelines to raise sentences for minority defendants as reported by 16% of attorneys, 5% of court personnel and 4% of judges.
5. In regard to criminal proceedings, the Commission's study shows that attorneys, prosecutors, and judges make decisions based upon the race or ethnicity of the defendants and victims. Each inquiry indicated that bias toward race or ethnicity favors majority defendants.
Findings
1. The likelihood that a defendant will be physically abused while in custody is affected by the defendants’ race or ethnicity.
Recommendations
1. The
Court as
Employer/Appointer
Findings
1. Employers should recognize that the hiring of a representative of one
minority may not improve the perception of other minorities that the system is fair.
Tokenism is not the solution to inequality for minorities.
2. Fair treatment of individuals is better ensured when the District Attorneys General and Public Defenders employ staff that are diverse and show no disparate treatment of any persons with whom they have business.
3. There has been a lack of sufficient effort to promote minority judges to policy-making judicial assignments.
Recommendations
1. Judges should encourage sheriffs, clerks, and other court personnel who
hire court assistants to appoint minority personnel.
2. The Administrative Office of the Courts should recruit and hire minority court reporters for use in state funded cases.
Findings
1. Fewer fee-generating court appointments are given to attorneys who are of a minority group. (See also Legal Profession: Hiring and Promotion, Finding #4)
Recommendations
1. Judicial appointing authorities should establish as a priority the increase
of minorities in judicial and quasi-judicial appointments.
2. The
Judicial Selection and Discipline
Findings
1. The responses show a large racial and ethnicity gap in the judicial
nominating process. Data received from the Administrative Office of the Courts
indicates few minority applicants submit their names as candidates. Although
the public perception appears to be that minorities are discriminated against
in this process, the data does not support that theory in all areas.
2. Information from the Judicial Selection Commission shows that minority candidates need to apply in greater numbers to be considered for positions on the trial and appellate bench.
3. Although the Commission’s study reflects bias affecting the judicial selection process, data shows that the Judicial Selection Commission has acted positively in submitting names of minority candidates to the Governor for consideration as appointees.
Recommendations
1. The Legislature should review the composition of the Judicial Selection
Commission to ensure compliance with statutory requirements of diversity.
2. Judicial candidates should be screened and disqualified upon evidence of racial and ethnic bias prior to appointment.
3. The judicial evaluation process should include screening for bias when evaluating sitting judges and evaluators should reflect the proportionate population of minorities.
Recommendations
1. The
2. The
Findings
1. Seventeen percent of attorneys reported that their experience suggested that insurance companies are more likely to regard cases as “winnable” when the injured party is of a minority race, while an essentially even number--15%-- observed that this was the case when the injured party is of the majority race. Eight percent of judges said that insurances companies are more likely to regard cases as “winnable” when the injured party is of a minority race, while 15% of judges and 8% of court personnel observed that this was the case when the injured party is of the majority race.
Recommendations
1. The
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