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    November 01, 2015

    Perceptions of Justice: Time to Act

    By Keith Roberts

    We are losing a whole generation, maybe more than one, who are losing their confidence in our justice system. Increasingly they believe that the rule of law is selective, unfair, and inequitably applied. We must take responsibility for strengthening the integrity of our justice system so that it is worthy of the confidence and faith of younger generations.

    —Sherrilyn Ifill, President, NAACP Legal Defense and Educational Fund1

    Graphic films of recent racial atrocities involving the police, and their apparent immunity from prosecution, have drawn instantaneous and enraged reactions across America and around the world.2 Is our system of justice really that discriminatory, that bad?

    The ABA’s Judicial Division (JD) has been considering this question for some time. It is not simply one of whether the justice system is basically fair, but also one of perceptions.

    In 2009, the chairman of the Lawyers Conference (LC), Michael Hyman, instigated a series of public discussions at ABA meetings concerning minority perceptions of the justice system. The purpose, he wrote, was “to build understanding, expose misunderstandings, defuse conflict, foster credibility, and ultimately strengthen respect for the judiciary.”3 Programs in Boston, Chicago, Dallas, Atlanta, DC, and San Francisco followed—each entitled “Perceptions of Justice: A Dialogue on Race, Ethnicity, and the Courts.”4 In 2013 and 2014, JD Chairs William Missouri and Mark Martin made Perceptions of Justice (POJ) a top JD priority, and created a POJ task force to follow up.5 This led to educational efforts about implicit bias described below, and a March 2013 summit in Chicago. Its 39 participants included judges from around the country, leaders of ABA sections, former and future ABA presidents, representatives of other bar associations, and other legal leaders.

    The POJ programs and summit produced calls for JD or ABA actions to improve both the reality of justice for minorities and perceptions of the justice system. Of course, the ABA is already taking action, as will be noted, but so far the POJ programs have not generated the response for which many program participants hoped.

    Presciently in light of recent events, participants in these meetings have noted the urgency of action to alleviate the perceptions problem that was so clearly expressed in them. For example, Judge Gordon Baranco, a moderator of the 2011 San Francisco program, wrote to me afterward, “ I do hope that the ABA adopts/takes action on the many policy recommendations that have been discussed in the numerous venues. The (consumer) problems of trust and confidence in the legal system remain.” After the 2013 Trayvon Martin killing in Florida, the other San Francisco moderator, Judge Ken Kawaichi, wrote me, “Not only is there heightened relevance, when one listens to public comments being made, it is arguable that public confidence has eroded along with the immediacy of false information and opinions.”

    This article, then, is a call to action. I will begin by describing ideas from the POJ programs, and then indicate relevant recommendations and what the ABA has done so far. Finally, I will propose specific further actions.

    Ideas

    The summit and the town hall dialogues all concluded that minority perceptions of the justice system are often negative and sometimes inaccurate. As we know, even mistaken perceptions contribute to serious problems. These include frustration and rage, as well as feelings of exclusion and isolation from society that cause people to eschew civic activity—for example, failing to vote—and can even contribute to some taking “justice” into their own hands.6

    Here is an outline of the main recommendations from POJ and summit participants to alleviate negative perceptions:

    Bias

    Without doubt, court personnel (including judges, police, prosecutors, clerks, investigators and others) sometimes act in biased ways. But overt discrimination is clearly inappropriate, broadly condemned, and often illegal. Consequently, the POJ ideas focused more on implicit or unconscious bias concerning color, ethnicity, sex, language, or culture. Some aimed primarily to improve the justice system’s objectivity, such as training—perhaps mandatory and with CLE credit—to help judges and prosecutors recognize implicit biases. Others sought to alter perceptions, such as increasing diversity in courthouse personnel, and making courthouse personnel more helpful through training about court processes and procedures. Additional suggestions were for the ABA to create or sponsor clearinghouses for self-assessment tools and available training programs.

    ABA/JD actions

    The ABA has long fought exclusion and bias in the legal profession, and currently publishes Exclusion: Strategies for Improving Diversity in Recruitment, Retention and Promotion by Natalie Holder-Winfield. The House of Delegates (HOD) has long condemned bias in court employment,7 in judicial selection,8 and regarding gender preferences.9 A 1996 HOD Resolution urged state and federal courts to educate their judges about bias with “a course devoted to fairness” and another on the judiciary’s role in keeping courts free of “race and sex bias.”10 President-elect Paulette Brown’s initiative, the ABA Commission on Diversity and Inclusion 360, will “review and analyze diversity and inclusion in the legal profession, the judicial system, and the American Bar Association and formulate methods, policy, standards, and practices to best advance diversity and inclusion over the next ten years.”11

    Educating judges about implicit bias has constituted the main JD response to the POJ recommendations. The POJ Task Force has worked with the National Ass’n of State Judicial Educators, the National Conference of State Court Judges, the Appellate Judges’ Education Institute, and NY State family court judges on implicit bias programs.12 The JD presented a very important CLE Showcase program on implicit bias at the 2014 Annual Meeting in Boston (just before the shooting of Michael Brown in Ferguson, MO), while the Conference of State Trial Judges also presented an implicit bias program for JD members.13 In addition, the JD’s Bernice Donald is spearheading a joint JD, Criminal Justice Section and Section of Litigation program to produce and disseminate a handbook, teaching materials, and curriculum for understanding and combating implicit bias (under the auspices of the 360 Commission described above).

    1.2 Personnel

    Two basic observations about justice system personnel predominated. One was that the police, not the courts, primarily shape POJ in minority communities. Contact with the police usually initiates the experience of young minorities with the justice system, and the close working relationship between police, prosecutors, and judges usually means that police decisions largely determine the results. So, from a youth’s viewpoint, the police run the justice system. Usually it’s only much later that people experience the civil side of the justice system by appearing as parties, jurors, or witnesses. Accordingly, many of the recommendations concerning bias and training for courthouse personnel were really aimed at the police.

    The second observation is that the racial, ethnic, sexual, and cultural identity of justice system personnel, especially the decision-making professionals, greatly affects peoples’ beliefs that the justice system is fair and works for them.14 Courts may do their best to reflect the communities they serve, but effectiveness requires improving professional “pipelines.” The ABA should seek to persuade law schools to recruit minority admissions, to expand criteria for admissions beyond LSATs, and to examine other law school admission barriers (as it currently does). But lawyers and judges are not the only professionals whose presence in court proceedings influences public perceptions. The ABA should also work to improve the diversity pipelines for other professionals in the justice system, such as police, psychologists and social workers. It could also expand existing mentoring efforts like the JD’s clerkship program and the ABA’s Legal Opportunity Scholarship grants, and make court internships more available. To increase minority participation as jurors, witnesses, and litigants, special recruitment efforts might also be needed.

    ABA/JD Actions

    The ABA’s Center for Racial and Ethnic Diversity promotes diversity as an ABA priority, and coordinates ABA diversity activities. The Center includes a Commission on Racial and Ethnic Diversity in the Profession that advocates for the employment and promotion of minorities in law firms and the judiciary; and a Special Committee for Hispanic Legal Rights and Responsibilities that addresses access to the courts, among other issues. Another ABA entity, the Coalition on Racial and Ethnic Justice, partners with the Center to eliminate bias in the justice system.

    Regarding the educational pipeline, the ABA has long advocated admitting minorities to law schools, a position it reaffirmed after the Supreme Court held in 1978 that race could be considered in law school admissions.15 The HOD urges all bar associations to work with bar examiners and schools at all levels “to address significant problems facing minorities within the pipeline to the profession.”16 And as the ABA Task Force on the Future of Legal Education noted in its Final Report of January 2014, a core principle behind its recommendations is to minimize obstacles to those wishing to pursue a legal career.17

    The ABA’s Council for Racial and Ethnic Diversity in the Educational Pipeline is specifically charged with promoting diversity in law schools. The ABA also staffs and administers the Accreditation Project and other activities of the Section of Legal Education and Admissions to the Bar. The Section’s Council serves as the national accrediting agency for law schools. Section entities “promulgate the Standards and Interpretations to which ABA-approved law schools must comply,” and perform site evaluations. But there do not appear to be any accrediting requirements concerning the admission of minorities to law school.

    1.3 Outreach

    There were various suggestions for how the ABA, State and local bar associations, and judges could improve perceptions by informing the public about civics, the courts, how courts work, courtroom behavior, and the procedures of busy courts. More and better outreach would no doubt improve public POJ, but in fact, as noted below, the ABA and the JD, as well as many State and local bar associations, judges and court personnel, law schools, and legal organizations devote substantial efforts to such outreach. On this issue, therefore, I have made no additional recommendations.

    ABA/JD Actions

    On outreach generally: The Board of Governors, on behalf of the HOD, supervises the ABA’s public outreach through its Operations and Communications Committee. The staff divisions for public outreach are the Division for Public Education under the Standing Committee on Public Education18 and the Division for Communications and Media Relations that deals with the press. The HOD has resolved that every lawyer has a responsibility to “further the public’s understanding of and confidence in the law and the American justice system,”19 and that judges regard as part of their function “the furtherance of the public’s understanding of and confidence in the American system of justice.20

    On schools: The ABA urges all levels of government to require and fund civic education for elementary, middle and secondary students in public schools.21

    On press kits: The ABA “encourages all ...bar associations to adopt programs enabling timely and effective responses to criticism of judges such as the 1998 ‘Model Program Outline for State and Local Bar Associations: Suggested Program for the Appropriate Response to Criticism of Judges and Courts.”22 The JD has developed such kits and made strong efforts to make them widely available.23 Moreover, under JD Chair Jodi Levine it convened a major 2005 program about educating the media in Washington DC, “Defining the Judge.”24

    On civic education: The Principles and Conclusions of the Commission on the 21st Century Judiciary urge the ABA to accelerate efforts to provide public education on the system of justice.25 In addition, the ABA asks judges, court personnel, and judicial organizations to “develop, support, and actively participate in public education programs about the law and the justice system in order to promote the trust and confidence of the public that is crucial to maintaining an independent judiciary.”26

    The Judicial Division also has educational programs and efforts directed both to schools and to civic groups through its Teaching the Constitution project, and the collection of educational materials in its Least Understood Branch project.

    1.4 The Law

    There were suggestions for improving perceptions by making the justice system fairer and more effective through three types of change: funding, organization, and criminology.

    • Funding: more funding for courts, public defenders, and services that the courts use, such as translation, probation, and parole.
    • Organization: create more problem-solving and community courts. Find alternatives to juvenile court for teenage misbehavior. Provide mediation and law clinics to reduce the burden on attorneys for the poor.
    • Criminology: less punitive, more suitable and creative sentences; more and better rehabilitation; programs to facilitate jobs and re-entry into society for convicts, including the removal of licensing and other career barriers. To pick one among many examples, in some states former convicts cannot obtain a license to become hairdressers.

    ABA/JD Actions

    Funding: Through the ABA’s Government Affairs Office, the ABA has actively promoted court funding at the federal level, and funding for courts and judicial salaries is often a key topic for Congressional visits on ABA Day. The Standing Committee on the Delivery of Legal Services promotes mechanisms for serving moderate-income persons. The Standing Committee on Legal Aid and Indigent Defendants seeks to help the poor. The Standing Committee on Pro Bono & Public Service advocates pro bono services. There is an ABA Toolkit for State Court Funding,27 and a TIPS Toolkit for Fair Court Funding,28 in addition to ongoing ABA efforts under the Government Affairs office.

    The ABA has enacted many resolutions urging better funding for the courts, especially for judicial salaries.29 It has also frequently advocated funding for legal services, notably the federal Legal Services Corp.30 It supports civil legal aid in cases involving basic human rights,31 and in certain administrative actions.32 In sum, The ABA is constantly advocating more funding for courts, public defenders, translation services,33 specialized courts, and so forth, and as with outreach, it is not clear what more it can do.

    Organization: The ABA has long supported funding for specialized or problem-solving courts such as youth courts,34 therapeutic courts and problem-solving sentencing alternatives,35 drug courts, veterans’ courts,36 and courts for the homeless.37 But the merits of community courts, drug courts, mental health courts, and so forth are not altogether settled, and it has been difficult to accurately evaluate their outcomes.38

    Criminology: A recent HOD Resolution urges governments to create and fund programs “preparing prisoners for release and re-entry into the community, and encouraging community acceptance of returning prisoners. It urges jurisdictions to identify and remove unwarranted legal barriers to reentry.”39 There are also new ABA Criminal Justice Standards on the Treatment of Prisoners, replacing previous standards for rehabilitation and reintegration.40 Standard 23-8.9, “Transition to the community,” specifies how governments should help prepare prisoners for re-entry, including those with medical or mental health care needs, and provides specific measures of assistance. It does not, however, address job searches or the removal of barriers to employment.

    2.0 Proposals for the ABA

    The ABA has the ability to improve minority perceptions of the Justice system. It can and routinely does convene and obtain input and support from the groups and associations concerned with its proposals. The resulting rules, procedures and policies have great influence. Congress and state legislatures regularly translate them into laws; and federal, state, and local courts carefully heed them, as do other bar associations, law schools, bar examiners, and legal ethicists.

    It remains, therefore, for the JD to propose further actions. Some of the ideas below aim at making the justice system’s performance fairer; others seek to improve public perceptions of the justice system. To implement them, I suggest that the JD’s Perception of Justice committee, working with other relevant ABA entities, undertake to formulate these and other ideas as necessary to obtain the appropriate consideration and action from the ABA’s staff and governing bodies. The balance of this article contains the proposals.

    2.1 Bias

    Implicit bias is a significant obstacle to objectivity within the justice system. Even though the JD has recognized its importance and sought to provide more education about it, the JD should take additional measures:

    • The JD should work with the ABA Center for Racial and Ethnic Diversity and other appropriate entities to institute rules, standards, or legislation, as necessary, to add, train and mandate CLE-credit training in implicit bias and cultural literacy for prosecutors and judges. The Center should also create and maintain a public library of training materials on implicit bias and cultural awareness.
    • The JD should ask the ABA to work with other relevant groups to provide financial support and fundraising to make the JD’s forthcoming implicit bias materials widely available on a national scale.
    • The JD should propose that the ABA and other bar associations actively support legislation requiring the appointment, by fair processes, of independent prosecutors in cases of possible police misconduct.

    2.2 Personnel

    • Improving the diversity of courthouse personnel would directly improve minority perceptions of the justice system. There are numerous rules and efforts to encourage minority hiring, but for the most influential positions, those that require advanced education and professional status, diversity has lagged. The main reason, apart from overt bias, is a small supply of minority candidates. To improve the “pipeline:”
    • The ABA’s Council for Racial and Ethnic Diversity in the Educational Pipeline should collaborate with other professional and educational groups (including police training academies and graduate schools for psychologists and social workers, among others) whose members assist the courts to achieve improvements to their “pipelines” like those it seeks for lawyers.
    • The ABA should finance a significant increase in the size of the JD’s clerkship program, along with financing assessments of the program’s impact on participants and the courts.
    • The Section of Legal Education and Admissions to the Bar should make reasonable efforts to provide for minority admission to law school a part of its accreditation requirements.

    2.3 Law

    Better funding is obviously desirable to improve both the performance and the public perception of the justice system. And, at least so long as the justice system seeks to accommodate customers who do not speak English, a specific measure like improving translation services would likewise be desirable. On the other hand, in the present unsettled state of knowledge about the impact of problem-solving courts, perhaps the best the ABA can do is to support studies calculated to determine their real value. Finally, although the ABA has certainly advocated more practical and humane treatment of prisoners, it should now emphasize specific measures:

    • The ABA and State bar associations should prioritize the funding of more, better trained, and properly monitored interpreters in all courts.
    • The ABA and State bar associations should support the creation of large-scale and well-designed studies about the cost and effectiveness of community courts and court-mandated treatment programs.
    • The ABA and State bar associations should advocate better funded and operated programs to facilitate jobs and re-entry into society for convicts, plus legislation to eliminate or sharply reduce licensing and other unnecessary career barriers that they face, including the wholesale vending of criminal records, both of criminal charges and convictions.

    Conclusion

    In creating a series of programs to investigate POJ, the Judicial Division made an implicit promise to the participants that their efforts would lead, where appropriate, to JD and ABA action. The participants understood that although ABA action might not succeed, it could be an effective leader and a powerful ally in the effort to improve minority perceptions of the justice system. To that end I have outlined some possible responses. Enough time has passed; we should act now.

    Endnotes

    1. Address to ABA Commission on the Future of Legal Services, Summit on Innovation in Legal Services, May 2-4, 2015, at http://www.americanbar.org/news/abanews/aba-news-archives/2015/05/video_highlightsna.html

    2. Whatever the actual facts in Ferguson MO, Staten Island NY, and Cleveland OH among other places may be, a full range of demonstrations has crowded the streets, including marches, peaceful acts of civil disobedience, fires, looting, riots, attacks on police, and pleas for calm from religious leaders and victims’ families. Television, social media, magazines, and newspapers have endlessly reported, investigated, commented, and advised.

    3. Quoted in Christina Plum and Rachel DuFault, “Perceptions of Justice 2008-11: Race, Ethnicity, and the Legitimacy of Courts,” Judges Journal 50:3 (2012)

    4. A thorough report on these meetings is available on the LC website at http://www.americanbar.org/content/dam/aba/administrative/lawyers_conference/2011_poj_writtenreport.authcheckdam.pdf-101k-2012-11-11. A Legal Toolkit for creating additional programs is at http://www.americanbar.org/content/dam/aba/publications/judicial_division/poj_toolkit_article.pdf-33k-2013-12-19

    5. Co-chaired by Phyllis Pickett, Cheryl Cesario, and Judge Delissa Ridgway,

    6. See Robert Putnam, Bowling Alone, ; also, Michael Shermer, “Is Terrorism a Form of Self-Help Justice?” Scientific American 312:5 (April, 2015), at http://www.scientificamerican.com/article/is terrorism-a-form-of-self-help-justice/, citing Donald Black, “Crime as Social Control” (1984) to the effect that “90 percent [of murders] are moralistic, a form of capital punishment in which the perpetrators are the judge, jury and executioner of a victim they perceive to have wronged them in some manner deserving of the death penalty.”

    7. 90M106B

    8. 95M119

    9. Resolution 14A114B

    10. 96M108

    11. Email of June 16, 2015 from Pedro Windsor, Managing Director, Offrice of Diversity and Inclusion, on file with the author.

    12. See Judicial Division Committee Report (Midyear Meeting, 2014), pp. 1-2, on file with the ABA Judicial Division and the author.

    13. The prestigious program garnered 43 co-sponsors and was by far the best attended at the 2014 Annual Meeting. See “ABA Panel examines impact of impllcit bias on judicial system,” ABA News (August 2014) at http://www.americanbar.org/news/abanews/aba-news archives/2014/08/aba_panel_examinesi.html, and “Justice Division Committee Report, Annual Meeting 2014, p. 2, on file with JD and the author.

    14. The best data on this may come from a 2005-6 survey on Public Trust & Confidence by the California Judicial Council, available at http://www.courts.ca.gov/5275.htm

    15. The case, of course, is Regents of the University of California v Bakke, 438 US 265 (1978). The resolution is Board of Governors 8/78BOG10

    16. HOD Policy 06A113

    17. http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/report_and_recommendations_of_aba_task_force.authcheckdam.pdf

    18. The Division maintains the ABA National Civics and Law Academy, a Dialogue Program Series, and Law and Humanities Public Programs among other activities

    19. Resolution 00M108

    20. HOD Resolution 03A104; see generally the Report of the Commission on the 21st Century Judiciary.

    21. HOD Resolution 2011M300

    22. HOD Resolutions 98M102, 2000M102

    23. The JD’s Least Understood Branch project, initiated under the chairmanship of Jody Levine, is one example. See Clifton Barnes, “Least Understood Branch: ABA project aims to inform public about the judicial system,” Bar Leader 31:2 (2006), available at http://www.americanbar.org/publications/bar_leader/2006_07/3102/lub.html

    24. Keith Roberts, “The Bar’s Role in Public Education about the Courts,” Judges’ Journal 46:2 (Spring 2007)

    25. adopted by HOD 07A110E,

    26. HOD Resolution 03A104

    27. Available at http://www.americanbar.org/groups/committees/american_judicial_system/task_force_on_the_preservation_of_the_justice_system/Court_Funding_Toolkit.html

    28. Available at http://www.americanbar.org/groups/tort_trial_insurance_practice/court_funding1.html

    29. See HOD Resolutions 80A121B, 81A116A, 94M8B, 98A104, 03M303, 03A105A, 04A107, 07M10D, 10M300

    30. See HOD Resolutions 81A117, 89M8F, 91M103, 11M10E, 13M10A, and Board of Governors resolutions 2/65BOG-VI.11, 5/73BOG, 4/81 NOG2.1

    31. see HOD Resolution 06A112A,

    32. HOD Resolutions 77M114, 78M129, 09M10B

    33. See HOD Resolutions 97A106A, 97A109; 02M110 and 2012M113, which adopts the ABA Standards for Language Access in Courts, and urges adequate funding to fully implement “language access services” in federal and state courts. Interpretation in federal courts is governed by Title VI of the Civil Rights Act of 1964, which the Supreme Court has not yet invalidated, and which prohibits the exclusion of any person from participation in or benefitting from any program receiving federal funds. The Court Interpreters Act of 1978 (USC Title 28, Part V, Chapter 119, §1827) gave everyone involved in a court proceeding the right to a qualified interpreter. This led to a federal qualifying program for certified interpreters. President Clinton’s August 2000 Executive Order 13166 required federal agencies to also take measures to provide interpretation for those who need it. In the State courts, a 2008 report from the Brennan Center for Justice, “Language Access on the State Courts,” describes the recent state of the art.

    34. HOD Resolutions 95A116A, 01A117, and 11M107B

    35. HOD Resolution 12M101F

    36. In 2010 the Veterans’ Administration asked the ABA to propose guiding policies for veteran treatment courts, specialized prosecutor dockets, etc. Email from Kenneth Goldsmith, ABA Government Affairs Office, June 19, 2015 on file with author.

    37. Resolution 03M116

    38. See Carol Fisler, “When Research Challenges Policy and Practice: Toward a New Understanding of Mental Health Courts,” Judges Journal 54:2, 8-13 (Spring 2005); Maya Szalavitz, “How America Overdosed on Drug Courts,” Pacific Standard May/June 2015, p. 34

    39. HOD Resolution 2004121D

    40. HOD Resolution 2010M102I