Executive Summary of the Final Report of the Judicial Council Advisory Committee on Racial and Ethnic Bias in the Courts
EXECUTIVE SUMMARY
Overview
The California Judicial Council has established access and
fairness in the judicial system as its number-one priority. In
part, this concern has evolved from the realization that the
state’s demographic profile has changed dramatically in the
past 20 years and will continue to do so. For example, Whites,
who are now 57 percent of the state’s population, will
decrease to 40.5 percent by the year 2020. The 224 different
languages or dialects now spoken are expected to increase,
primarily because of immigration.
The population of young people is growing in number and
becoming increasingly poor. Further, many of these young people
are at risk and may come under the jurisdiction of the criminal
justice system at some point in their lives. Changes in
employment patterns, family structure, and technology and an
increasingly diverse, multicultural society will have a
tremendous impact on the operation of the California courts. The
Judicial Council Advisory Committee on Racial and Ethnic Bias in
the Courts (the advisory committee) was one of the many task
forces and committees designed to investigate issues affecting
the administration of justice and make recommendations to the
council.
Appointed in March 1991 by former California Chief Justice
Malcolm M. Lucas, the advisory committee was directed to (1)
study the treatment of racial and ethnic minorities in the state
courts, (2) ascertain public perceptions of fairness or lack of
fairness in the judicial system, and (3) make recommendations on
reforms and remedial programs, including educational programs and
training for the bench, the bar, and the public.
In 1991, the advisory committee joined approximately 10 other
state task forces and commissions and numerous professional legal
associations and organizations in efforts to investigate racial
and ethnic bias in state court systems. More than 20 task forces
and commissions on racial and ethnic bias are currently in
existence. Representatives from these organizations have formed
the National Consortium of Task Forces and Commissions on Racial
and Ethnic Bias in the State Courts (the consortium. Members of
the consortium meet annually.
Guided by the experience of the consortium, the California
advisory committee began its work by participating in a one-day
seminar on diversity and cultural awareness training. Next, the
advisory committee conducted public hearings, opinion surveys,
demographic surveys, and other studies in furtherance of the
committee’s mandate.
In addition, the committee hired consultants to conduct
literature surveys and report on the effect of jury composition
on jury verdicts and the effect of race and ethnicity on
sentencing decisions. In this same vein, the committee reviewed
the reports of other consortium member states plus several
studies on gender bias. All these materials informed the advisory
committee’s final report, particularly the findings,
conclusions, and recommendations.
The Judicial Council Advisory Committee on Access and Fairness
in the Courts (the Access and Fairness Advisory Committee) ,
appointed in March 1994 by former Chief Justice Lucas, will
oversee implementation of the recommendations of the Racial and
Ethnic Bias Advisory Committee when they are approved by the
Judicial Council. Additionally, the five subcommittees of the
Access and Fairness Advisory Committee are (1) continuing with
implementation of the recommendations of the Judicial
Council’s Gender Bias Advisory Committee, which were
approved and adopted by the council a few years ago, (2)
developing other programs to enhance gender fairness, (3)
identifying barriers to full participation in the justice system
by persons with disabilities, (4) examining issues of bias as
they affect sexual orientation, (5) establishing an electronic
library for fairness publications, and (6) developing educational
programs to enhance fairness education for court personnel.
Public Perception of
Bias
As part of its investigation, the advisory committee conducted
13 days of public hearings throughout the state from November
1991 through June 1992. Testimony was received at the hearings,
and the public was also invited to submit written testimony or
arrange to have confidential testimony received by a committee
member. Following the public hearings, a consultant was engaged
to summarize, analyze, and prepare a written report on the
totality of the testimony.
The committee also conducted a random-dial telephone survey
targeting adults 18 years or older, in which a total of 1,338
people participated. In addition, the committee mailed
approximately 2,070 questionnaires to judicial officers and top
administrators of the California trial courts, and another 2,000
questionnaires to minority and nonminority lawyers with an
interest in minority legal affairs.
The public hearings and opinion surveys revealed that members
of minority communities did not believe that the judiciary and
court staff reflected California’s increasing diversity. In
order to objectively verify or disprove this public perception,
the committee also commissioned a comprehensive demographic
survey of the California trial courts. This latter project
boasted a 100 percent response rate. The survey verified that
Whites constitute more than 80 percent of the judiciary and hold
the majority of top-level management positions.
The final and ongoing research project initiated by the
committee is a case study of the outcomes of jury trials in
selected California counties involving a sample population of
minority and nonminority defendants who were similarly situated
and represented by public and private counsel. A survey of jurors
in recent cases, designed to assess their perception of juror and
judicial attitudes and behaviors, was also included in this
project. This research effort was initiated because of the widely
held perception among members of minority communities that people
of color do not receive the same measure of justice as Whites. By
the end of 1996, the results of this research will be presented
to the Access and Fairness Advisory Committee, which is, in part,
responsible for overseeing implementation of the recommendations
of the Racial and Ethnic Bias Advisory Committee.
The overall impression obtained from the committee’s
research is that although the general public gives the California
judiciary a good report card, many minority-group members do not
believe that they will receive equal justice in the California
courts. Several speakers pointed to the large percentage of
minority-group members, particularly African American males, who
inhabit the state’s jails and prisons. These percentages are
disproportionate to the percentage of minorities in the
population.
The advisory committee found a persistent perception among
minorities that the justice system gives scant attention or
resources to investigating crimes against minorities and that
defendants who are minorities receive harsh treatment compared to
White defendants in similar circumstances. For example, testimony
was offered at the public hearings that African American males,
in particular, face criminal charges more frequently than Whites,
against whom charges may not be filed in the same or similar
situations. Further, many people believe that Black-on-Black
crime or Latino-on-Latino crime is not taken seriously, whereas
minority defendants whose victims are White are punished more
severely than Whites whose victims are members of minority
groups. Set forth below is a more detailed summary of what the
committee found in the course of its investigation.
Summary of Findings
Courtroom Experience
In the public-opinion survey discussed in Chapter 4,
"Courtroom Experience," Californians overall give high
marks to members of the judiciary. Those outside of the legal
community, however, rate the overall state court system as only
fair or even poor.
Those attending the public hearings frequently cited judicial
demeanor as a reason for the negative attitudes toward the
courts. They spoke of judges who exhibited a lack of respect for
minority and/or non-English-speaking litigants. Minority
attorneys also felt that they were sometimes afforded less
credibility than their White counterparts during court
proceedings. In some instances, judicial officers were reported
as making overtly racist comments.
Additionally, before those involved in civil or criminal
proceedings stand in front of a judge, they interact with other
court personnel who are highly visible in the roles they
performed and may, by their attitudes and behaviors, affect the
public’s perception of the justice system. Court personnel
who are impatient, rude, or disrespectful toward minority and
poor persons send a message that justice will not be forthcoming
in the California courts.
Treatment of Counsel
In the 10-year period from 1984 to 1994, the number of
minority law school graduates in the United States almost
doubled, increasing from 3,169 to 6,099, or from 8.6 percent to
15.5 percent, of total graduates. Asian/Pacific Islanders
experienced the most dramatic growth, from 1.5 percent of the
total graduates to 4.5 percent. African Americans increased from
4.3 percent to 6 percent of the total. Hispanics increased from
2.5 percent to 4.4 percent, and the number of Native Americans
doubled, from 0.3 percent to 0.6 percent of total graduates.
Despite these increases, the total number of minorities at the
partnership level in major private firms nationwide is 1,160, or
2.8 percent of the total. Nationwide statistics support the claim
that despite the growing numbers of minority law students
graduating from top-ranked law schools, the country’s
largest private law firms are recruiting minimal numbers of
minority attorneys and retaining even fewer minority attorneys at
the senior associate and partner levels. Minorities account for
4.3 percent of the partners in large San Francisco firms and 5.7
percent of large Los Angeles firms.
The percentages are only slightly higher in the public sector.
In a demographic survey of district attorney and public defender
offices conducted by the California Administrative Office of the
Courts (AOC) staff, the return rate was 72 percent for the
district attorneys and 85 percent for the public defenders. Of
the district attorney offices that responded, nearly 85 percent
of their deputy district attorneys are White, 4.8 percent are
African American, 6.4 percent are Latino, 3.8 percent are Asian
American, and fewer than 1 percent are Native American. Of the
public defender offices that responded, nearly 81 percent of the
deputy public defenders are White, 6.5 percent are African
American, 8.7 percent are Latino, 3.9 percent are Asian American,
and fewer than 1 percent are Native American.
In the courtroom, biased treatment of minority attorneys may
taint their professional effectiveness and destroy a
client’s confidence in the attorney’s ability to
represent his or her interests. Testimony presented at the public
hearings revealed instances of courtroom personnel behaving in a
condescending or patronizing manner toward minority attorneys.
This behavior has been exhibited not only by some White attorneys
and nonjudicial court personnel (such as bailiffs and clerks) but
also by judges. Rather than complain, several attorneys testified
that they ignored biased remarks, especially from judges, out of
fear of retaliation for challenging the authority of a bench
officer.
Failure of courtroom personnel to treat minority attorneys
with dignity can affect the attorney-client relationship.
Minority attorneys find themselves battling a public perception
that minority counsel are less able to serve a client’s
legal needs than White attorneys.
Anecdotal evidence offered at the advisory committee’s
public hearings also points to a perceived bias against
public-sector attorneys, many of whom are women and minorities.
There were comments that the clients of private counsel receive
better treatment than the clients of government lawyers because
greater respect is accorded attorneys in private practice.
Language and
Cultural Barriers
Based on the advisory committee’s research, California
residents outside of the legal profession believe that persons
with a good command of English fare better in the courts than
those who speak little or no English. Even before an individual
reaches the courtroom, a myriad of forms and instructional
materials offered only in English may intimidate non-English
speakers from seeking relief in the courts. Foreign-language
signage inside courtrooms is limited, and nonjudicial personnel
often do not possess multiple language skills that would enable
them to assist non-English speakers through the judicial system.
Several speakers offering testimony at the public hearings
complained of the shortage of qualified linguistic interpreters
and bilingual court staff. California currently has 1,675
certified interpreters; nevertheless qualified interpreters are
scarce in some areas of the state. This means that an
individual’s ability to receive justice may be limited by a
language barrier.
Moreover, cultural differences may prevent some individuals
from seeking or obtaining assistance from the court. It may be
that an individual comes from a war-torn area of the world and
may not trust authority, or perhaps his or her cultural values
encourage conciliation rather than litigation and confrontation.
Further, culturally derived mannerisms, if unrecognized by the
courts and court personnel, also may lead to unfair treatment.
In some cultures, for example, direct eye contact is
considered rude, whereas in the United States failure to make
direct eye contact is generally viewed as indicating lack of
truthfulness.
The Matter of
Diversity
Whites constitute 81 percent of the superior court officials
and managers, minorities, 19 percent. Whites make up 78 percent
of court reporters, a highly visible position, and 68 percent of
courtroom clerks. Moreover, most racial and ethnic minorities are
found in the lower-level office and clerical positions and are 53
percent of the total in the superior courts.
Statistics are similar for lower-level office and clerical
jobs in the municipal courts, where minorities represent a little
less than one-half the total. Municipal court officials and
managers present a different picture: 32 percent are minorities,
compared to 19 percent in the superior court. Courtroom clerks,
court reporters, and office and clerical staff are 63 percent, 83
percent, and 51 percent White, respectively.
As far as judges are concerned, the advisory committee’s
demographic survey revealed that 89 percent of 768 judges in the
California superior courts are White, with White males holding 77
percent and White females 12 percent of the total positions.
Approximately 4 percent of the judges are African American, 4.3
percent are Latino, and slightly more than 2 percent are Asian
American. There are no Native American superior court judges.
Eighty-four percent of the 565 municipal court judges are
White. White males represent 69 percent of the total, White women
15 percent. In contrast, Latinos and African Americans each hold
6.5 percent of the positions, Asian Americans 2.9 percent. There
are no Native American municipal court judges.
It should be noted that it is the attorney population, not the
general population of California, from which judges are
appointed. The State Bar of California has, in the past,
commissioned two demographic surveys of its members. Based on the
results of the SRI International survey in 1991 and the RAND
survey in 1994, the State Bar concludes that Asian Americans and
Latinos each make up 3 percent each of active bar members,
African Americans 2 percent. Inactive members total more than
30,000, and these individuals were not part of either survey.
From 1984 up to the present, the pool of minority attorneys
with five or more years of active membership in the State Bar, a
prerequisite for becoming a municipal court judge, has increased
significantly despite their small percentage of the total. Also
on the increase is the number of attorneys with 10 years of bar
membership and/or prior service as a judge, the minimum
qualification for selection to other courts. Nevertheless,
judicial appointments by California governors of Asian Americans,
African Americans, and Latinos have not increased significantly.
Rarely do minorities become judges through the electoral process.
Accordingly, it is clear that any increases in the number of
minority judges will be brought about primarily through the
appointment process.
Women of Color and
the Justice System
The quote "Quite literally, women of color are not
counted" is the appropriate beginning for Chapter 8.
Generally, neither racial and ethnic bias nor gender bias task
forces and commissions have been able to adequately investigate
the special concerns of women of color. Thus far, only the
commission for the state of Florida has conducted separate
research on women of color.
Despite the lack of statistical data, public-opinion evidence
is abundant. A speaker at the public hearings expressed the
belief that African American women are viewed as coming from
violent communities, and, therefore, judges appear to believe
that violence is more "acceptable" to them.
Accordingly, judges may not pay serious attention to the
testimony of these women when they are victims of violence. The
same speaker stated that judges appear to view Asian women
differently from White women as well. In the speaker’s view,
Asian women were regarded as more submissive, and therefore the
use harsh methods by the woman’s male partner to dominate or
control her was not unexpected.
Violence against Native American women is a complicated issue
to address because criminal and civil jurisdiction over Indian
people and Indian lands is divided among tribal, federal, and
state courts. This jurisdictional puzzle can lead to a cumbersome
procedure that precludes Native American women from obtaining
redress or protection.
Although the total number of minority women in the legal
profession has grown to 23,000 — up from 7,300 in 1980,
according to the 1990 decennial U.S. census — minority women
are not broadly represented throughout the profession. One reason
for this is perhaps revealed in a 1993 study of Ohio’s nine
law schools, which indicates that minority-women law students
leave law school feeling less confident in their abilities and
possessing lower self-esteem than when they entered law school.
According to the study, this is largely due to perceived overt or
covert discrimination, the lack of credibility women of color are
accorded, and, in general, different treatment by their
professors.
According to this advisory committee’s studies, after law
school many women reportedly found themselves being treated with
disrespect and condescension by their White male counterparts,
some members of the judiciary, and court staff. Further, women of
color rarely see their combination of gender and race or
ethnicity reflected on the bench.
As previously noted, according to 1993 data compiled by the
advisory committee, only 4 percent of superior court judges (31)
are African American, 4.3 percent (33) are Hispanic, and a little
more than 2 percent (18) are Asian American. There are no Native
American superior court judges. Of these numbers there are only 4
African American females, 4 Asian American females, and 2
Hispanic women holding superior court judgeships. Appointments
after 1993 are not contained in the advisory committee’s
demographic survey.
The municipal court figures are higher: 16 female municipal
court judges are African American, 8 are Asian American, and 5
are Hispanic women. At the time of this study, only one male
Native American municipal court judge had been identified, and
that individual was defeated at election in 1980.
Finally, as previously noted, nonjudicial and nonattorney
court employees who are minorities and females are generally
clustered in the lower-level office and clerical positions in the
superior courts. The advisory committee’s research indicates
that the situation is similar for the municipal courts, as
discussed in Chapter 7, "The Matter of Diversity."
Family and Juvenile
Law Issues
The committee also discovered a persistent perception of bias
in the administration of justice in family and juvenile courts;
however, these areas were beyond the purview of the advisory
committee’s research efforts, and further investigation is
needed to determine the extent of actual bias, if any.
Speakers at the public hearings believed that minorities were
not treated fairly by the courts and were judged through the
filter of White, middle-class values. As a result, cultural
stereotyping was prevalent and negatively affected the
courts’ decisions in family and juvenile matters.
The effects of the intersection of gender, race, and class are
apparent to those familiar with family law matters. For example,
it is estimated that 85 percent of those who are appearing in
propria persona (pro pers) are women. Of that number, the
majority are women of color who, in the words of one speaker, are
"consistently treated with less respect and given
insufficient information to carry out the roles that were
assigned to them in representing themselves." How this
affects women seeking the court’s protection from abusive
partners, or mothers caught up in protracted custody battles, is
not hard to imagine. Moreover, when pro pers cannot afford
mandatory mediation fees, a divorce proceeding may languish in
the courts.
Statistical and anecdotal evidence demonstrates that the
California juvenile courts are more likely to detain poor
children of color in juvenile hall or do an out-of-the-home
placement of these children of their White counterparts. In the
juvenile justice system, minority children account for most of
the incarcerated offenders, even though White children account
for approximately 75 percent of all children arrested. In
summary, Latino and African American young people are more likely
to be arrested, less likely to make bail, less likely to be
released while awaiting trial, less likely to be represented,
more likely to be convicted, and more likely to be sentenced to
secure detention.
Sentencing
According to a municipal court judge at the Los Angeles public
hearing, two other judges, during a seminar, remarked that jail
time might be more appropriate for African Americans than for
Whites or Asian Americans because there was no social stigma
attached to going to jail in the African American community.
Although the committee believes that such statements are rare,
there is concern that subtle bias may affect sentencing
decisions.
National statistics help to explain this persistent concern.
In the United States, almost one in three African American males,
30.2 percent, are under the control of the criminal justice
system. In California the rate is 33.2 percent. The comparable
rate for Latinos and Whites nationally is 12.3 percent and 6.7
percent, respectively. In California the rate for Latinos is 9.4
percent and 5.4 percent for Whites.
These figures are in stark contrast to the results of
victimization surveys conducted by the federal government
indicating that Whites, although less than half of the prison
population, commit approximately 60 percent of rapes, robberies,
and assaults in California. Various explanations have been
offered for this disparity: the uneven application of drug laws;
the prevalence of plea bargaining, used by overworked public
defenders; police policies that target members of minority
communities; and prosecutorial discretion and the effect of race
and ethnicity on charging decisions.
In his article "Racial Disproportion in U.S.
Prisons," cited in Chapter 10, Professor Michael Tonry of
the University of Minnesota concluded that, apart from the
disparate impact of the drug laws, Whites and minority-group
members are not treated evenhandedly. Tonry’s conclusion was
corroborated by a study conducted by California’s San
Jose Mercury News reporting that Whites are more
"successful" at every stage of pretrial negotiations
than minorities.
Additionally, through death penalty cases, the U.S. Government
Accounting Office in 1990 identified a pattern of race-based
discrimination in sentencing where the victim was White rather
than African American and the defendant was a minority.
Defendants who murdered Whites were 4.3 times more likely to
receive the death penalty.
Studies other that those mentioned above are inconclusive on
the issue of whether a disparity in sentencing exists. Only
further study is likely to bring us closer to understanding if,
how, and during what stages in the criminal justice process race
or ethnicity may influence the decisions of the authorities.
The Jury System
Jury composition and the need for a representative trial jury
are the focus of Chapter 11. During the advisory committee’s
public hearings, several speakers expressed the opinion that
minorities, as litigants or defendants, cannot receive justice if
the jury does not contain any minority-group members. The belief
persists that most trial juries contain few, if any, minorities.
Other speakers commented on a variety of reasons for
unrepresentative juries: economics and the inability of
lower-income Californians to take the time from work to serve;
the lack of enforcement of jury summonses; the exclusion from
juries of people with accents; and the use of the Department of
Motor Vehicles list and voter lists compared to other kinds of
lists for the juror pool. Factors such as where certain racial or
ethnic groups are concentrated in a given county may also affect
jury representation. If particular minority groups are
concentrated in an area more than a specified number of miles
from the court, they may never serve on a jury. For example, in
Los Angeles, jurors are called only from within a 20-mile radius
of the city limits.
The lack of minority representation on grand juries is due to
a unique set of circumstances. Superior court judges recommend
individuals to serve on the grand jury. Unlike trial juries, no
rules require that a grand jury be representative of the
population or racially and ethically balanced. The few speakers
who commented on grand juries found that they are
unrepresentative and, as described by a superior court judge,
that grand jury members are disproportionately upper-income
persons.
The Mass Media and
Bias
It is easy to find fault with the media, and several speakers
at the public hearings did just that. The media were accused of
fostering negative attitudes toward Asian Americans because of
"revisionist fantasies of Chuck Norris and Rambo exacting
revenge on Asians for the war that we lost." Other
commentators said that the proliferation of negative stereotypes
is due, in part, to the media’s preference for the
sensational. For example, African Americans may be described as
coming together to "riot" rather than
"protest" because the concept of "riot" is
more inflammatory and sells more newspapers.
The committee found that two of California’s largest
minority groups, Asian Americans and Latinos, are more dependent
on the media for information about the California courts than any
of the other minority groups. In a public-opinion survey
commissioned by the advisory committee, 73 percent of Asians and
63 percent of Hispanics reported they obtain most of their
information about the courts from what they see or hear in the
mass media. The two groups also give the California courts an
overall fairness rating that exceeds that of other racial and
ethnic groups. Thus, the media are essential to an informed
public.
In the past few years, these daily headlines have played in
America’s living rooms during the evening news: The
videotaped shooting of an African American teenage girl by a
Korean grocer; the videotaped beating of an African American male
by Los Angeles police officers; the severe injuries inflicted on
a White male by an angry group of minority individuals; and the
beatings, by Los Angeles County sheriff’s officers, of
members of a Samoan family and their celebrating an upcoming
wedding.
It is possible that negative images of people of color, often
spotlighted by the media, help shape the attitudes of the
American public toward members of minority groups. The impact of
negative images may be magnified when one considers the scarcity
of positive images and role models of people of color on the TV
screens in America’s living rooms. Further, these negative
images may, to some extent, help set the stage for the actions of
both abusive law-enforcement officers and the angry mob.
Conversely, in a positive vein, with media coverage
highlighting police misconduct, the appropriate authorities can
act to change the attitudes and behaviors of the few bad actors
in California law enforcement and elsewhere. Further, it is hoped
that projecting more positive and accurate images about all
groups and educating the public about cultural differences will
soon be placed on the agenda of network executives. If so, the
scenes described above may slowly diminish over time.
Set forth in this report are the key conclusions and
recommendations of the Racial and Ethnic Bias Advisory Committee.
This Executive Summary does not purport to set forth all the
findings relied on by the advisory committee to support these
conclusions and recommendations.
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