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:

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