Public Notice Detail
Bias in the Courts?
Posted: Thursday, July 17, 2003
Associate Justice Alan Page
Eighth Circuit Judicial Conference
Minneapolis, MN
July 17, 2003
"The white race deems itself to be the dominant race in this country. And so it is in prestige, in achievements, in education, in wealth and in power … But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved."
So said Justice John Marshall Harlan more than 100 years ago in his dissent in Plessy v. Ferguson. Fifty years later, when Plessy was overturned by Brown v. Board of Education, Harlan's words again rang true.
But today I must ask the question: In light of today's climate in any given statehouse to the White House, from state legislatures to Congress and especially our courts - do we truly accomplish the promise of "equal justice under law"?
I've been asked to talk to you about the issue of race as it relates to our justice system.
Discussions of race are never easy, in part because what one person may see as innocent conduct, another sees as racially motivated. Moreover, even innocent conduct can have a negative effect when it comes to issues of race. Sometimes the race card is openly and blatantly played. Sometimes its use is subtle. And sometimes the card being played is not the race card at all, but the affect is such that there is a racial impact. If we do not talk about race as it relates to our justice system, if we are unwilling or unable to address these difficult issues, the words "equal justice under law" will remain for many of our citizens a hollow promise.
In June 1993, shortly after I joined the court, the Minnesota Supreme Court issued a report from its Task Force on Racial Bias in the Judicial System. The task force's primary goal was to explore the extent to which racial bias exists in Minnesota's court system and determine the factors contributing to that bias. The task force looked at criminal process, interpreter services, juvenile and family law, civil process, and the justice system workplace. Among the findings: People of color are arrested more often, charged more often, given higher bails, tougher plea bargains, less fair trials, and far longer sentences. It also found that there was a lack of interpreters, gross over-representation of children of color in the foster care system, and people of color were under-represented in justice system jobs and over-represented in our state's prisons. Many of these disparities continue.
Is there active prejudice at work in our courts? Sometimes, sometimes not. Some of the policies and practices that eventually lead to the unfair dispensation of justice to people of color stem from well-intentioned, if naïve, efforts to demonstrate that our system is "color blind." For instance, the failure of the justice system to keep sufficient and accurate race-specific data permits a biased system to operate free from effective scrutiny. Other policies and practices seem to result more from indifference than from outright prejudice. But whatever the reason, the outcome remains the same.
And it's not just Minnesota. Since 1993, roughly 30 states have commenced studies on racial bias in their judicial systems. All of those states that have completed the data collection and analysis stages of their studies have concluded that racial bias does indeed exist in their systems. These conclusions are consistent with the conclusions of the Kerner Commission Report from 1968. Sadly, not much has changed. There is something fundamentally wrong when our judicial system - the one branch of government designed to protect individual rights and to provide equal justice to all - persistently denies equal justice to our communities of color.
Interestingly, it seems that in many corners there is an underlying assumption today that equal opportunity has, in fact, been achieved … that we live in a color-blind society … that in our nation today all people are treated as equals. The truth is, we're not even close. The phrase "living in a color-blind society" should not mean living in a society that is blind to unequal treatment. We may be better at covering up our biases. But making bias harder to detect is not the same as making it go away.
I believe that we, as judges, as attorneys, and as members of society, have an obligation to identify why racial bias occurs in our courts and to determine what we can do to eliminate it. As the late Justice Thurgood Marshall once said: "The legal system can force open doors, and, sometimes, even knock down walls. But it cannot build bridges. That job belongs to you and me."
Since the task force report of 1993, our state judiciary has initiated an important shift in its debate about racial bias: we have moved our discussion from "if" there is bias to "where" there is bias. However, we have also realized that we cannot begin to measure that bias and ferret out the problem areas until we have hard data .
Information is vital in moving our judicial system toward equal treatment. Approximately 11% of our state's population is made up of people of color. Four percent are African American. Yet Department of Human Services data tells us that in 2000, black children were 16.3 times more likely to be placed outside of the home by the courts than white children. In 1993, black Minnesotans were 19 times more likely than whites to be in prison - one of the greatest disparities in the country. In 2001, blacks were 13 times more likely than whites to be in prison ? an improvement, although still one of the greatest disparities nationwide.
These statistics are provocative, but they do not give us much guidance on how to fix the problem. We know disparities exist, but we do not know why. That is why collection of race data is so important. It will allow us to pinpoint the problem. That is, we will be able to see exactly where disparate treatment occurs as cases make their way through the judicial system. With that information, we can address the problem at its origin.
In 2001, Minnesota began collecting self-reported race data in every criminal and juvenile case at first appearance.
According to preliminary numbers, nearly 54% of the adult felony filings in 2002 involved white defendants, while about 19% involved African Americans. Contrast those numbers with the fact that more than 36% of our prison population is African American. The disparity is more than a little troubling. While these numbers don't tell us anything about the "why" of the disparity, they do seem to indicate that the courts play a larger role in creating the disparity than many of us would like to think.
We will continue to collect and analyze data from this collection project and follow these filed cases through to their dispositions. By doing so, we hope to finally be able to answer the "why" question.
Race data collection is about accountability. It will allow us to look at racial disparities in the aggregate so we can address the specific - by moving us from anecdotes to empirical evidence and from empirical evidence to action.
Beyond our initiative to collect race data, Minnesota's judiciary has undertaken additional efforts to change the policies and practices that often lead to racial disparities.
Let me highlight some of the other things we've done. A decade ago, Minnesota had no interpreter certification procedures or testing. Judges, attorneys, and court personnel received no training about how to properly use interpreters. Overall, the task force report called interpreter services the "stepchild" of the justice system; made up of understudies; under funded; and, in terms of its ultimate impact, little understood. We have come a long way since then.
In 1995, Minnesota and four other states initiated The Consortium for State Court Interpreter Certification, which provides test materials and educational programs, sets standards for interpreter test development, administration, and education, and serves as a forum for information-sharing among members and other interested organizations. The Consortium now has 28 member states. Through the Consortium, Minnesota has led the development of a training and certification process for Hmong and Somali interpreters.
In addition, the Court Interpreter program has developed a roster of certified and non-certified interpreters who have passed our ethics exam. The program also provides training to judges, attorneys, and court staff. Rather than being a "stepchild" of the justice system, we have developed a statewide interpreter program with a budget of $3 million dollars.
Finally, we are developing a database that will track Minnesotans' requests for interpreter services so that we may better assess the needs of courts across the state.
Another area in which we have made progress is what I will call, for simplicity's sake, diversity training. All new judicial branch employees are required to receive cultural sensitivity training as part of their orientation. Judges receive continuing education during their annual conference. And, we continue to assess the role racial bias plays in the employment practices of the court system. While we strive to hire, promote, and retain a diverse staff, we have a long way to go in this area.
We have also worked to make sure prosecutors and public defenders receive training. Since 1995, the statewide trial school has educated attorneys about how race influences plea negotiations. And since 1996, attorneys licensed to practice law in Minnesota are required to take two hours of Elimination of Bias credits every three years in order to fulfill their continuing legal education obligations. Elimination of Bias courses must be designed "to eliminate from the legal profession and the practice of law bias against persons because of race, gender, economic status, creed, color, religion, national origin, disability, age or sexual orientation." The elimination of bias requirement arose out of the findings of the Race Bias Task Force report, as well as the 1989 Task Force report on Gender Bias. Ultimately, the purpose is to change people's conduct. For those who suggest that the requirement is an attempt to engage in thought control, I can tell you from the perspective of an African American who has known discrimination along the road of life, I don't particularly care about what people think, I don't need to be liked, I don't need to be loved, what I want and what I have a right to is to be treated fairly.
To improve the response rate to court summons for jury service, Minnesota became one of only a few states in the country to reimburse jurors for day-care costs. In addition, all judicial districts in Minnesota now monitor the racial composition of their jury pools. The Hennepin County District Court has created a policy that ensures that people of color are represented on grand juries. And we have created a new juror orientation video that will better prepare jurors for their service.
Finally, we realize that our courts cannot be sensitive to issues of race and how they impact people of color unless the makeup of the court reflects the communities we serve. You may ask, why does race matter? After all, parties aren't entitled to have a jury with a particular racial make-up or a judge of their choice. Indeed, at least in theory, if judges are truly impartial, it shouldn't matter what race they are. While that is a valid point, I think it misses something important.
First, a vital part of the richness of what the judiciary does is the varied background and experience of those who serve as judges. Those differences in background and experience make us all better.
Second, and more important, if people are to have trust and confidence in the work that those of us in the judiciary do, they should see some people who look like them when they come into contact with the judicial system, people who may have shared some of the same experiences they have shared and, thus, someone with an understanding of and sensitivity to the life experiences they have had. How can you have confidence in the judicial system if the judges in that system cannot relate to who you are?
Finally, I would note that if equal opportunity means anything, it means that people of color have as much of a right to be employed as judges, law clerks, court reporters, administrators and judicial assistants as those who are in the majority.
These concerns are not unique to Minnesota or even the United States. In fact, just this week, a London Times article called "Judges' Fast Track To Lure Minorities," highlighted changes in store for Britain's judiciary that, according to the article, could be "the biggest legal shake-up for a century."
Proposals have surfaced for a new independent judicial appointments commission, structural changes to the court system, and other efforts that hope to attract a more diverse bench. The British government is concerned that only 93 of Britain's 3,636 judges are black or Asian.
We should be as concerned. Though the diversity of the Minnesota state court system has improved since 1993, only 18 out of 297 of our judges are people of color (13 African American, 2 Asian, 2 Hispanic, and 1 Native American).
In the federal courts within the Eighth Circuit, 10 out of 147 of the judges are people of color - all African Americans.
So, then, how do we level the playing field so that people of color can succeed in the legal world? For starters, we have worked with the Minnesota Board of Law Examiners to identify the causes of racially disproportionate bar passage rates. The Board now reviews bar exam questions for racial bias and works to ensure that at least 25% of exam graders are people of color. In addition, the Board has increased its outreach and education efforts.
The judicial system has an obligation to provide equal opportunity, whether it be at the entry level or at the highest level. To the extent that people of color have the temperament, the background, the skills, and the abilities necessary to work in our system- and there are many who do - they should have the same opportunities to serve as those who are not people of color.
Growing up in Ohio during the 1950s, I have vivid memories of reading newspaper articles about Brown v. Board of Education. From that case, I developed a sense of the real power that judges have and the importance of what they do. For me, that power was hope . Hope that, if an educational system could be changed in the South, it could be changed anywhere. Hope that fairness could prevail and that issues related to race might one day be resolved. Hope that the judicial system and its judges were something I could trust.
As I look back, some of the ideals I developed as a child may have been naïve, but, as I continued to learn about the courts, I came to believe even more deeply in the principle of "equal justice under law." These weren't and aren't just words to me. They had meaning...they still do.
But despite all of the dedication and effort we have poured into erasing racial disparities in the past decade, our work is far from done. We know that we must continue our system-wide initiatives to ensure equal justice and equal access to justice for all.
One thing all of us here this afternoon can do, one thing each of us can control, is our own biases. As participants in the justice system, we must look within ourselves and eliminate those biases. We must set aside stereotypical views of people who are different from us and make sure our judgments are based on the individual, rather than some perceived characteristics of a racial group.
I would like to close with words again from Justice Marshall. "We can run from each other, but we cannot escape each other. We will only attain freedom if we learn to appreciate what is different and muster the courage to discover what is fundamentally the same. Take a chance, won't you? Knock down the fences that divide. Tear apart the walls that imprison. Reach out; freedom lies just on the other side."