Maryland Bar Bulletin
Publications : Bar Bulletin

August, 2004

JUDICIAL FAIRNESS JUDGED
~Court report reveals differing perceptions contingent on race and ethnicity~
By Janet Stidman Eveleth

A recent study by the judiciary’s Commission on Racial and Ethnic Fairness in the Judicial Process (CREF) indicates the majority of Marylanders find the courts to be fair and unbiased. However, “minorities are much more likely than whites to believe the judicial system is unfair.” A significant number of citizens who are poor and members of minority groups question the fairness of the courts and perceive discrimination to exist within our state’s justice system. To address this perception, the Commission has proposed a series of 19 broad sweeping measures for consideration by the Court of Appeals.

Created in October 2001, CREF initiated a comprehensive probe of racial and ethnic fairness in the state’s court system that included a poll of 11,000+ litigants, a series of public hearings across Maryland and written testimony of personal accounts. In the Commission’s June 2004 final report, CREF reveals that, of the 491 poll respondents, while “40 percent believe Maryland’s courts act impartially toward both sides without regard to race/ethnicity and economic status, only 19 percent of minorities and 25.7 percent of those with low-incomes agreed.”

Overall, CREF’s examination detected “substantially different perceptions of the courts based on the racial/ethnic and economic difference of respondents.” In general it found “whites and the more affluent generally believe the court processes are fair and are more likely to expect fair treatment in the courts than minorities and the less affluent.” The Commission was troubled by revelations such as the 30 percent of minority respondents who believe the outcome of a case was due to race or ethnicity.

Thus, CREF is recommending that the “courts zealously pursue the goal of fairness.” To facilitate this goal, CREF is recommending everything from a formal discrimination complaint procedure, court outreach programs in languages other than English, public education, racial and ethnic training workshops on diversity for judges and court personnel, a required diversity training program for all new attorneys and the broadening of jury pools.

Background
In 1989, when a Bar/Bench study uncovered widespread gender bias in the state’s court system, the Bar and the Bench immediately created the Select Committee on Gender Equality to initiate educational programs, sensitivity training, new legislation, court decisions and other corrective measures to eliminate gender bias in Maryland Courts. This issue was revisited in 2000, when the Select Committee on Gender Equality conducted a 10-year retrospective gender equality survey to ascertain what progress the court system had made in addressing gender bias attitudes, perceptions, experiences and overall improvements. Although this probe showed overall improvements in gender equality, it found that gender bias persisted in the court system. Even more alarming, problems of racial and ethnic bias surfaced during this study.

The most troubling revelation stemming from the Committee’s 2001 report was “the perception that racial and ethnic bias was more prevalent than gender bias.” According to the report, “a significant percentage of judges, attorneys and court employees believed that racial and/or ethnic bias was a factor in the administration of justice and affected the treatment of litigants, attorneys and court employees.” To address this, the Committee recommended the formation of a group to study racial and ethnic fairness in Maryland’s court system.

In 2002, the Honorable Robert M. Bell, Chief Judge of the Court of Appeals of Maryland, created the Commission on Racial and Ethnic Fairness in the Judicial Process, naming Judge Dale R. Cathell Chair. The Chief Judge directed this Commission to examine court-related equality issues affecting the African-American, Hispanic and Asian communities by focusing on feedback from judges, lawyers and court employees and contact with litigants, witnesses and jurors. Its primary mission was to raise both public and professional awareness of the impact of race and ethnic origin on the fair delivery of justice in Maryland.

To explore the issue of racial and ethnic fairness, the Commission polled actual court participants in or users of the court systems of Maryland. It sought to focus on the courts’ interactions with interested parties throughout the litigation experience. To this end, it designed and disseminated a 136-question survey to well over 11,000 litigants who had cases in District Court and Circuit Court during FY 2001 and 2002. At the same time, CREF conducted a series of four public hearings in different parts of the state and also solicited written testimony.

Findings
Among the survey results, CREF discovered minorities are more likely to be the court users in family, juvenile and other civil courts and that 40 percent of them believed whites receive better treatment in juvenile court. Three times as many believed they could not get a fair trial in family court. In terms of criminal court, where almost half of the responses originated, twice as many respondents were minorities than white, and a significant number of minorities reported unfairness in the trial courts. However, more respondents believed the process was fair than unfair.

Problems were also cited with perceived unfair treatment with respect to police departments, state’s attorneys and public defenders. In addition, minorities and the less-affluent reported significantly more difficulty in retaining adequate legal representation. Overall, 41 percent said they could not afford to hire an attorney and 56 percent of these respondents were minorities.

Both minorities and whites reported that more whites served on juries than minorities and generally more whites than minorities believe the court process is fair. Unequal or unfair treatment by judges, masters and court personnel is not often observed. Finally, although there was a very low response rate on the part of ethnic minorities, significant language and culture problems were uncovered.

Recommendations
To tackle this unbalanced perception of fairness in Maryland’s justice system, CREF has recommended a number of measures to enhance the understanding and view of the courts held by low-income and minority groups. One of its top proposals is an anonymous formal discrimination complaint procedure so court users can register timely bias complaints with an appropriate officer of the court. It urges the Court of Appeals to adopt a procedure for the review and resolution of complaints and for notification to the complainants. It further recommends that courts prominently post their positions on racial, ethnic and economic fairness.

Public education and diversity training are strongly suggested for all court players, including judges, lawyers, court personnel, litigants, police officers and social service agencies. Education and training regarding ethnic cultural, language, translation and interpretation services should be greatly expanded. CREF also recommends increasing the pool of available jurors from diverse and ethnic backgrounds and possibly compensating low-income jurors for child and elder care. Other reforms to improve the perception of fairness are also proposed and will be considered by the Court of Appeals.

Conclusion
“Sadly, perceptions of racial, ethnic and economic bias may never be eliminated,” the CREF report concludes. But, “the continued vitality of a strong, healthy and vibrant court system depends in large part upon how the courts are perceived. Achieving racial, ethnic and economic fairness is one of the inherent missions of the court system…Fairness will always be the goal, and progress toward this goal will be seen as a continuing, perpetual effort to afford equal justice – the primary function of the courts.”

“It is apparent from the analysis and recommendations in the report that the Commission, under Judge Cathell’s leadership, demonstrated its commitment toward ensuring racial and ethnic fairness in the courts,” states the Honorable Robert M. Bell, Chief Judge of the Court of Appeals of Maryland. “I commend the members for their dedication. The task ahead for the Court is to prioritize the implementation of the recommendations.”

A copy of this report is available on the court website at www.courts.state.md.us/publications/racialethnicfairness.

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Publications : Bar Bulletin: August, 2004

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